NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS OMNIBUS ELECTION CODE OF THE PHILIPPINES (BATAS PAMBANSA BILANG

881) (Recent Amendments and Jurisprudence) OUTLINE Article I. General Provisions (Sections 1-12) Sec. 1 Sec. 2 Sec. 3 Sec. 4 Sec. 5 Sec. 6 Sec. 7 Sec. 8 Sec. 9 Sec. 10 Sec. 11 Sec. 12 Title Applicability Election and Campaign periods Obligation to Register and vote Postponement of Election Failure of Election Call of Special Elections Election Code to be Available in Polling Places Official Mail and Telegram Relative to Elections Election Expenses Failure to Assume Office Disqualifications

Article II. Election of President and Vice-President (Sections 13-20) Sec. 13 Sec. 14 Sec. 15 Sec. 16 Sec. 17 Sec. 18 Sec. 19 Sec. 20 Regular Election for President and Vice-President Special Election for President and Vice-President Canvass of Votes for President and Vice-President by the Provincial or City Board of Canvassers Counting of Votes for President and Vice-President by the Batasang Pambansa Correction of Errors in Certificate and Supporting Statement Already Transmitted to the Secretary Preservation of Ballot Boxes, Their Keys, and Disposition of Their Contents When certificate of canvass is incomplete or bears erasures or alterations Proclamation of the President-elect and Vice-President-elect

Article III. Election of Members of the Batasang Pambansa (Sections 21-28) Sec. 21 Sec. 22 Sec. 23 Sec. 24 Sec. 25 Regular Election of Members of the Batasang Pambansa Special Election for Members of the Batasang Pambansa Composition of the Batasang Pambansa Apportionment of Representatives Voting by Province and its Component Cities, by Highly 1

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Urbanized City or by District in Metropolitan Manila Sectoral Representatives Scope of the Sectors Selection of Sectoral Representatives

Sec. 26 Sec. 27 Sec. 28

Article IV. Election of Local Officials (Sections 29-30) Sec. 29 Sec. 30 Regular Elections of Local Officials Component and Highly Urbanized Cities

Article V. Election of Members of Regional Assembly of the Autonomous Regions (Sections 31-36) Sec. 31 Sec. 32 Sec. 33 Sec. 34 Sec. 35 Sec. 36 The Sangguniang Pampook of the Autonomous Regions Apportionment of Members of the Sangguniang Pampook Election of Members of Sangguniang Pampook Selection of Sectoral Representatives Filling of Vacancy Term of Office

Article VI. Election of Barangay Officials (Sections 37-51) Sec. 37 Sec. 38 Sec. 39 Sec. 40 Sec. 41 Sec. 42 Sec. 43 Sec. 44 Sec. 45 Sec. 46 Sec. 47 Sec. 48 Sec. 49 Sec. 50 Sec. 51 Regular elections of Barangay Officials Conduct of Elections Certificate of Candidacy Board of Election Tellers Registration of Voters and List of Voters Polling places Official Barangay Ballots Ballot Boxes Postponement or Failure of Election Barangay Board of Canvassers Activities During the Campaign Period Watchers Inclusion and Exclusion Cases Funding Penalties

Article VII. The Commission on Elections (Sections 52-59) Sec. 52 Sec. 53 Sec. 54 Sec. 55 Sec. 56 Sec. 57 Powers and functions of the Commission on Elections Field offices of the Commission Qualifications Office Space Changes in the Composition, Distribution or Assignment of Field Offices Measures to Ensure Enforcement 2

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 58 Sec. 59 Disqualification of Members of the Commission Publication of Official Ballots and Election Returns and Printing Thereof

Article VIII. Political Parties (Sections 60-62) Sec. 60 Sec. 61 Sec. 62 Political Party Registration Publication of Petition for Registration or Accreditation

Article IX. Eligibility of Candidates and Certificate of Candidacy (Sections 63-78) Sec. 63 Sec. 64 Sec. 65 Sec. 66 Sec. 67 Sec. 68 Sec. 69 Sec. 70 Sec. 71 Sec. 72 Sec. 73 Sec. 74 Sec. 75 Sec. 76 Sec. 77 Sec. 78 Qualifications for President and Vice-President of the Philippines Qualifications for members of the Batasang Pambansa Qualifications of Elective Local Officials Candidates Holding Appointive Office or Positions Candidates Holding Elective Office Disqualifications Nuisance Candidates Guest Candidacy Changing Political Party Affiliation Effects of Disqualification Cases and Priority Certificate of Candidacy Contents of Certificate of Candidacy Filing and Distribution of Certificate of Candidacy Ministerial Duty of Receiving and Acknowledging Receipt Candidates in Case of Death, Disqualification or Withdrawal of Another Petition to Deny Due Course to or Cancel a Certificate of Candidacy

Article X. Campaign and Election Propaganda (Sections 79-93) Sec. 79 Sec. 80 Sec. 81 Sec. 82 Sec. 83 Sec. 84 Sec. 85 Sec. 86 Sec. 87 Sec. 88 Definitions Election Campaign or Partisan Political Activity Outside Campaign Period Intervention of Foreigners Lawful Election Propaganda Removal, Destruction or Defacement of Lawful Election Propaganda Prohibited Requirements for Published or Printed Election Propaganda Regulation of Election Propaganda Through Mass Media Prohibited Forms of Election Propaganda Rallies, Meetings and Other Political Activities Public Rally 3

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 89 Sec. 90 Sec. 91 Sec. 92 Sec. 93 Transportation, Food and Drinks Comelec Space Comelec Poster Area Comelec Time COMELEC Information Bulletin

Article XI. Electoral Contributions and Expenditures (Sections 94-112) Sec. 94 Sec. 95 Sec. 96 Sec. 97 Sec. 98 Sec. 99 Sec. 100 Sec. 101 Sec. 102 Sec. 103 Sec. 104 Sec. 105 Sec. 106 Sec. 107 Sec. 108 Sec. 109 Sec. 110 Sec. 111 Sec. 112 Definitions Prohibited Contributions Soliciting or Receiving Contributions from Foreign Sources Prohibited Raising of Funds True Name of Contributor Required Report of Contributions Limitations upon Expense of Candidates Limitations upon Expenses of Political Parties Lawful Expenditures Persons Authorized to Incur Election Expenditures Prohibited Donations by Candidates, Treasurers of Parties or their Agents Accounting by Agents of Candidate or Treasurer Records of Contributions and Expenditures Statement of Contributions and Expenditures Place for Filing Statements Forms and Contents of Statement Preservation and Inspection of Statements Effect of Failure to File Statement Report of Contractor and Business Firms

Article XII. Registration of Voters (Sections 113-148) Sec. 113 Sec. 114 Sec. 115 Sec. 116 Sec. 117 Sec. 118 Sec. 119 Sec. 120 Sec. 121 Sec. 122 Sec. 123 Sec. 124 Sec. 125 Sec. 126 Permanent List of Voters Renewal of the Permanent List Necessity of Registration Who may be Registered in the List Qualifications of a Voter Disqualifications Preparation of the Permanent List of Voters Preparation of the List Before other Regular Elections Preparation of the List Before any Special Election, Plebiscite or Referendum Transfer of Name of Voters from the Permanent List to the Current One Cancellation and Exclusion in the Transfer of Names Meeting to Close the List of Voters Re-registration Registration of Voters 4

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 127 Sec. 128 Sec. 129 Sec. 130 Sec. 131 Sec. 132 Sec. 133 Sec. 134 Sec. 135 Sec. 136 Sec. 137 Sec. 138 Sec. 139 Sec. 140 Sec. 141 Sec. 142 Sec. 143 Sec. 144 Sec. 145 Sec. 146 Sec. 147 Sec. 148 Illiterate or Disabled Applicants Voters Identification Action by the Board of Election Inspectors Provincial Central File of Registered Voters National Central File of Registered Voters Preservation of Voters Affidavits Columns in the List of Voters Certificate of the Board of Election Inspectors in the List of Voters Publication of the List Challenge of Right to Register Power of the Board of Inspectors to Administer Oaths and Issue Summons Jurisdiction in Inclusion and Exclusion Cases Petition for Inclusion of Voters in the List Voters Excluded through Inadvertence or Registered with an Erroneous or Misspelled name Change of Name of Registered Voter Petition for Exclusion of Voters from List Common Rules Governing Judicial Proceedings in the Matter of Inclusion, Exclusion, and Correction of Name of Voters Canvass to Check Registration Annulment of Permanent Lists of Voters Reconstitution of Lost or Destroyed Registration Records Examination of Registration Records List of Voters

Article XIII. Precincts and Polling Places (Sections 149-163) Sec. 149 Sec. 150 Sec. 151 Sec. 152 Sec. 153 Sec. 154 Sec. 155 Sec. 156 Sec. 157 Sec. 158 Sec. 159 Sec. 160 Sec. 161 Sec. 162 Sec. 163 Precincts and their Establishment Arrangements of Election Precincts Publication of Maps or Precincts Polling Place Designation of Polling Places Requirements for Polling Places Building that shall not be used as Polling Places Signs and Flags of Polling Places Arrangement and Contents of Polling Places Voting Booth Guard Rails Ballot Boxes Tally Boards Furnishing of Ballot Boxes, Forms, Stationeries and Materials for Election Inspection of Polling Places

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Article XIV. Board of Elections (Sections 164-177) Sec. 164 Sec. 165 Sec. 166 Sec. 167 Sec. 168 Sec. 169 Sec. 170 Sec. 171 Sec. 172 Sec. 173 Sec. 174 Sec. 175 Sec. 176 Sec. 177 Composition and Appointment of Board of Election Inspectors Oath of the Members of the Board of Election Inspectors Qualification of Members of the Board of Election Inspectors Disqualification Powers of the Board of Election Inspectors Voting Privilege of Members of Board of Election Inspectors Relief and Substitution of Members of the Board of Election Inspectors Vacancy in the Board of Election Inspectors Proceedings of the Board of Election Inspectors Prohibition of Political Activity Functioning of the Board of Election Inspectors Temporary Vacancies Temporary Designation of Members of the Board of Election Inspectors by Watchers Arrest of Absent Members

Article XV. Watchers (Sections 178-180) Sec. 178 Sec. 179 Sec. 180 Official Watchers of Candidates Rights and Duties of Watchers Other Watchers

Article XVI. Official Ballots and Election Returns (Sections 181-189) Sec. 181 Sec. 182 Sec. 183 Sec. 184 Sec. 185 Sec. 186 Sec. 187 Sec. 188 Sec. 189 Official Ballots Emergency Ballots Requisition of Official Ballots and Election Returns Printing of Official Ballots and Elections Returns Sample Official Ballots Distribution of Official Ballots and Election Returns Committee on Printing, Storage, and Distribution of Official Ballots and Election Returns Duties of the Committee on Printing of Official Ballots and Election Returns Representatives of the Registered Political Parties in the Verification and Distribution of Official Ballots and Election Returns

Article XVII. Casting of Votes (Sections 190-205) Sec. 190 Sec. 191 Sec. 192 Sec. 193 Voting Hours Preliminaries to the Voting Persons Allowed in and Around the Polling Place Order of Voting 6

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 194 Sec. 195 Sec. 196 Sec. 197 Sec. 198 Sec. 199 Sec. 200 Sec. 201 Sec. 202 Sec. 203 Sec. 204 Sec. 205 Manner of Obtaining Ballots Manner of Preparing the Ballot Preparation of Ballots for Illiterate and Disabled Persons Spoiled Ballots Voting Challenge of Illegal Voters Challenge Based on Certain Illegal Acts Admission of Challenged Vote Immaterial in Criminal Proceedings Record of Challenges and Oaths Minutes of Voting and Counting of Votes Disposition of Unused Ballots at the Close of the Voting hours Prohibition of Premature Announcement of Voting

Article XVIII. Counting of Votes (Sections 206-220) Sec. 206 Sec. 207 Sec. 208 Sec. 209 Sec. 210 Sec. 211 Sec. 212 Sec. 213 Sec. 214 Sec. 215 Sec. 216 Sec. 217 Sec. 218 Sec. 219 Sec. 220 Counting to be Public and Without Interruption Excess Ballots Marked Ballots Compartment for Spoiled Ballots Manner of Counting Votes Rules for the Appreciation of Ballots Election Returns Proclamation of the Result of the Election in the Polling Place Disposition of Election Returns Board of Election Inspectors to Issue a Certificate of the Number of Votes Polled by the Candidates for an Office to the Watchers Alterations and Corrections in the Election Returns Delivery of the Ballot Boxes, Keys and Election Supplies and Documents Preservation of the Voting Record Preservation of the Ballot Boxes, their Keys and Disposition of their Contents Documents and Articles Omitted or Erroneously Placed Inside the Ballot Box

Article XIX. Canvass and Proclamation (Sections 221-240) Sec. 221 Sec. 222 Sec. 223 Sec. 224 Sec. 225 Sec. 226 Sec. 227 Sec. 228 Sec. 229 Board of Canvassers Relationship with Candidates and Other Members Prohibition Against Leaving Official Station Feigned Illness Vote Required Incapacity and Substitution of Members of Boards of Canvassers Supervision and Control Over Board of Canvassers Notice of Meeting of the Board Manner of Delivery and Transmittal of Election Returns 7

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 230 Sec. 231 Sec. 232 Sec. 233 Sec. 234 Sec. 235 Sec. 236 Sec. 237 Sec. 238 Sec. 239 Sec. 240 Safekeeping of Transmitted Election Returns Canvass by the Board Persons not Allowed Inside the Canvassing Room When the Election Returns are Delayed, Lost or Destroyed Material Defects in the Election Returns When Election Returns Appear to be Tampered with or Falsified Discrepancies in Election Returns When Integrity of Ballots is Violated Canvass of Remaining or Unquestioned Returns to Continue Watchers Election Resulting in Tie

Article XX. Pre-proclamation Controversies (Sections 241-248) Sec. 241 Sec. 242 Sec. 243 Sec. 244 Sec. 245 Sec. 246 Sec. 247 Sec. 248 Definition Commission's Exclusive Jurisdiction of all Pre-proclamation Controversies Issues that may be Raised in Pre-proclamation Controversy Contested Composition or Proceedings of the Board Contested Election Returns Summary Proceedings Before the Commission Partial Proclamation Effect of Filing Petition to Annul or to Suspend the Proclamation

Article XXI. Election Contest (Sections 249-260) Sec. 249 Sec. 250 Sec. 251 Sec. 252 Sec. 253 Sec. 254 Sec. 255 Sec. 256 Sec. 257 Sec. 258 Sec. 259 Sec. 260 Jurisdiction of the Commission Election Contests for Batasang Pambansa, Regional, Provincial and City Offices Election Contests for Municipal Offices Election Contest for Barangay Offices Petition for Quo Warranto Procedure in Election Contests Judicial Counting of Votes in Election Contest Appeals Decision in the Commission Preferential Disposition of Contests in Courts Actual or Compensatory Damages Notice of Decisions

Article XXII. Election Offenses (Sections 261-269) Sec. 261 Sec. 262 Sec. 263 Sec. 264 Sec. 265 Prohibited Acts Other Election Offenses Persons Criminally Liable Penalties Prosecution 8

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 266 Sec. 267 Sec. 268 Sec. 269 Arrest in Connection with the Election Campaign Prescription Jurisdiction of Courts Preferential Disposition of Election Offenses

Article XXIII. Legal Fees (Sections 270-271) Sec. 270 Sec. 271 Collection of Legal Fees Payment of Fees

Article XXIV. Transitory Provisions (Sections 272-279) Sec. 272 Sec. 273 Sec. 274 Sec. 275 Sec. 276 Sec. 277 Sec. 278 Sec. 279 Pending Actions Designation of Certain Pre-election acts Immediately After the Approval of this Code Accreditation of Dominant Opposition Party Party Representatives in the Board of Election Inspectors Appropriations, and Insurance for Board of Election Inspectors Special Election for President Before 1987 Special Election to Fill Existing Vacancies in the Batasang Pambansa Elective Officials in Existing Sub-provinces

Article XXV. Final Provisions (Sections 280-283) Sec. 280 Sec. 281 Sec. 282 Sec. 283 Reorganization of the Commission on Elections Separability Clause Repealing Clause Effectivity Clause

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Brief Historical Background of COMELEC The Commission on Elections was created by a 1940 amendment to the 1935 Constitution. Its membership was enlarged and its powers expanded by the 1973 and 1987 Constitutions. The Commission exercises not only administrative, but judicial and quasi-judicial powers. Before the creation of the Commission, supervision over the conduct of elections was vested in the Executive Bureau, an office under the Department of Interior and later directly vested in the Department itself when the Executive Bureau was abolished. There was, however, general dissatisfaction over the manner in which elections were conducted under the supervision of the Secretary of the Interior. There was growing suspicion that Secretaries of the Interior administered election laws not for the purpose of securing honest and free elections, but to serve the political interest of the party in power to which they belonged. They were never entirely free from suspicion of acting with partisan bias. The close official relationship between the president and the Secretary of the Interior bred suspicion that elections served the incumbent Secretarys political interest. The Secretary of the Interior was directly responsible to the President and his tenure of office was dependent not only on the pleasure of the President, but also upon the Presidents own continuance in office. This set-up only induced increasing distrust in the verdict at the polls. The situation impelled the National Assembly to propose the creation by constitutional amendment of a Commission on Elections composed of a Chairman and two members to take over the functions of the Secretary of the Interior relative to elections. By constitutional amendment ratified by the Filipino people in a plebiscite held on June 17, 1940, all functions heretofore exercised by the Secretary of the Interior relative to the conduct of elections were transferred to the Commission. However, as the amendment could not be made effective in time for the 1940 elections, the National Assembly through Commonwealth Act No. 607 created a statutory Commission on Elections, giving thereto the same powers which the Commission would have under the Constitution. The act became effective upon its approval on August 22, 1940. The Commission immediately functioned on September 14, 1940, and supervised the December 10, 1940 elections. The constitutional amendment creating the Commission was finally approved on December 2, 1940. On June 21, 1941, the Commonwealth Act No. 657 was enacted reorganizing the Commission as a constitutional body. The members of the statutory Commission continued as member of the constitutional Commission. The subordinate personnel, records, documents, and property 10

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS together with its unexpected balance in the appropriation were likewise transferred to the newly-organized Commission. The Chairman and Members of the Commission had a term of nine years each a member being replaced every three years- except those first appointed who were given nine, six and three-years terms, respectively. The 1973 Constitution enlarged the membership of the Commission from three to nine but reduced their term of office from nine to seven years. The 1987 Constitution reduced the membership of the Commission from nine to seven but retained their term of seven years without reappointment. Of those first appointed, 3 members should hold office for seven years, 2 members for five years and the last 2 members for three years. They can be removed from office only by impeachment and are provided with salaries fixed by law which shall not be decreased during their term of office. These are the safeguards to ensure the independence of the Commission. Automated System of Elections RA 8436 was passed into law in 1997, authorizing COMELEC to implement an automated system in the May 1998 elections and in subsequent national and local elections. But it did not materialize due to lack of time, preparation and funding. The automated process was only used in Lanao del Sur, Maguidanao, Sulu and Tawi-Tawi during the 1998 elections. Joseph Marcelo Estrada was elected president in 1998, pledging to help the poor and develop the countrys agricultural sector. In 1999 he announced plans to amend the constitution in order to remove protectionist provisions and attract more foreign investment. In Nov., 2000, Estrada was impeached by the House of Representatives on charges of graft, but the senate, controlled by Estradas allies, provoked a crisis when it rejected examining the presidents bank records. As demonstrations against Estrada mounted and members of his cabinet resigned, the Supreme Court stripped him of the presidency, and Vice President Gloria Macapagal-Arroyo was sworn in as Estradas successor. Macapagal-Arroyo was elected president in her own right in May, 2004, but the balloting was marred by violence and irregularities as well as a tedious votecounting process that was completed six weeks after the election. RA 9369 was passed in 2007, amending RA 8436 to encourage transparency, credibility, fairness, and accuracy of elections. An automated electoral process was first enforced on a nationwide scale in the 2010 elections with President 11

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Benigno Noynoy Aquino III declared as the winner in just few hours after the election, a historical mark in the history of elections in the Philippines. The second nationwide automated elections took place on May 13, 2013, with the election of twelve senators, governors, mayoralty positions, and city councilors.

THE COMELEC AS GUARDIAN OF THE BALLOT

Through the years, the Commission has managed to maintain its authority and independence in the conduct of elections. Actions and decisions of this body that appeared to strain the limits of its powers were, in most cases, sustained by the Supreme Court, thereby reinforcing its position as the constitutionally ordained guardian of the ballot. In its latest decision upholding the Commission's assertion of authority, the high tribunal affirmed the exclusive character of its power to conduct the preliminary investigation and prosecution in cases involving election offenses (People vs. Honorable Enrique B. Inting, Judge, RTC, BR 38, Dumaguete City, et al, G.R. No. 88919, July 27, 1990). Such decisions have attested to the Commission's sixty-one (61) years of service to Philippine democracy, to the strength of purpose and character and the vision of the men and women who have served it. REORGANIZATION The Commission on Elections had undergone several reorganizations: On June 21, 1941, Commonwealth Act No. 657 was enacted reorganizing the Commission on Elections as a constitutional body. There were 39 staff members including three Commissioners, namely: Pedro Concepcion, Chairman; Jose C. Abreu and Rufino Luna, members. At the beginning the Chairman and Members of the Commission had a term of nine years each - a member being replaced every three years - except in the first Commission who were given nine, six and three year terms respectively. They could be removed from office only by impeachment and were provided with fixed salaries which could neither be increased nor diminished during their term of office. These were among the safeguards to ensure the integrity and independence of the Commission. On June 22, 1963, Congress approved Republic Act Nos. 3588 and 3808 enabling the Commission to reorganize and expand its structure and increase personnel down to the municipal level. Republic Act No. 3588 was passed in order to 12

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS establish a permanent list of voters and a continuing system of registration of voters, in each city, municipality and municipal district by a non-partisan and qualified election registrar with the assistance of an election clerk. On the other hand, Republic Act No. 3808 authorized the Commission to reorganize its office "in order to promote maximum efficiency in carrying out its constitutional duty to ensure free, clean and orderly elections and administer and enforce effectively all laws relative to the conduct of elections". This law empowered the Commission to abolish or create department, divisions, sections, or units, redistribute functions and personnel, change salaries and allowances of its subordinate officials and employees and provide for adequate appropriation for maintenance and operation. Then on 1973 by virtue of the 1973 Constitution the membership of the Commission was enlarged from three to nine members but reduced their term of office from nine to seven years. It was likewise in this light that the power of the Commission was enlarged to include judicial power. Thus, the Comelec became a judicial tribunal while keeping its origin as an administrative entity. First to serve in the Commission under the 1973 Constitution were Leonardo B. Perez as chairman, and Venancio S. Duque, Flores A. Bayot, Jose Mendoza, Fernando R. Veloso, Liningding M. Pangandaman, Venancio L. Yaneza and Casimiro R. Madarang,Jr. as Commissioners. Because of the increased membership and the enlarged powers and functions of the Commission under the 1973 Constitution, President Marcos issued Presidential Decree No. 597 on December 3, 1974 authorizing the Comelec to undertake a reorganization of its various departments, divisions, sections, offices and other units. Implemented in 1979, the reorganization created two new offices, namely the Election and Barangay Affairs Department and the Electoral Contests Adjudication Department. Field operations were decentralized with the establishment of the offices of the Regional Election Directors. By virtue of the passing of the 1987 Constitution the membership of the Commission was now reduced from nine to seven but retained their 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. They can be removed from office only by impeachment and are provided with salaries fixed by law which shall not be decreased during their term of office. On July 11, 1986, Ramon H. Felipe, Jr. was appointed as Chairman to serve under the 1987 Constitution with Leopoldo L. Africa, Haydee B. Yorac, Anacleto D. Badoy, Jr., Andres R. Flores, Dario C. Rama and Tomas V. dela Cruz, as Commissioners. On February 15, 1988, Hilario G. Davide, Jr., was appointed Chairman with Alfredo E. Abueg, Jr., Haydee B. Yorac, Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao as Commissioners. Commissioner Haydee B. Yorac was appointed as Acting Chairman when Hilario 13

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS G. Davide, Jr. was appointed Chairman of the Presidential Fact Finding Commission in December 1989 under Administrative Order No. 146. The Current COMELEC is composed of Chairman, Sixto S. Brillantes Jr., Commissioners Christian Robert S. Lim, Ma. Gracia Cielo M. Padaca, Lucenito Tagle, Elias Yusoph, Al A. Parreno, and Luie Tito F. Guia. The Commission is under the over-all control of the Chairman and the Commissioners, who constitute the policymaking body that lays down the guidelines and regulations for elections, referenda, plebiscites, initiatives and recalls. The Chairman is the Chief Executive of the Commission. Under him is the Executive Director (ED) whose duty is to implement policies and decisions and to take charge of the administrative affairs of the Commission. Assisting the Executive Director are two deputies: a Deputy Executive Director for Administration (DEDA) and a Deputy Executive Director for Operations (DEDO). In the field, there are 16 regional election directors (RED), 79 provincial election supervisors (PES), 1,609 election officers (EO) and their staffs. The election officers are based in every city and municipality. Their main function is to supervise the conduct of electoral activities within their areas of responsibility as field representatives of the Commission. And in the main office there are ten (10) departments. The Commission sits either en banc or in two divisions in order to expedite disposition of election cases including pre-proclamation controversies. It was said however that the passing and the actual use of the poll automation law virtually eradicated pre-proclamation controversies. The latest and possibly the greatest breakthrough in election law is the passage of Republic Act 9369 or the Act providing for the automation of the Election Process. It is the consolidation of Senate Bill No. 2231 and House Bill No. 5352 passed by the Senate on 7 December 2006 and the House of Representatives on 19 December 2006. On 23 January 2007, less than four months before the 14 May 2007 local elections, President Gloria Macapagal - Arroyo signed the said law. It was printed in two newspapers of general circulation namely the Malaya and Business Mirror, where it was published on 26 January 2007. RA 9369 thus took effect on 10 February 2007 after fifteen (15) days of publication. Organizational Structure The Commission is under the over-all control of the Chairman and the Commissioners, who constitute the policymaking body that lays down the guidelines and regulations for elections, referenda, plebiscites, initiatives and recalls. The Commission sits either en banc or in two divisions in order to expedite disposition of election cases including pre-proclamation controversies. The Chairman is the Chief Executive of the Commission. Under him is the Executive Director (ED) whose duty is to implement policies and decisions 14

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS and to take charge of the administrative affairs of the Commission. Assisting the Executive Director are two deputies: a Deputy Executive Director for Administration (DEDA) and a Deputy Executive Director for Operations (DEDO). In the field, there are 16 Regional Election Directors (RED), 80 Provincial Election Supervisors (PES), 1,646 Election Officers (EO) and their staffs. The election officers are based in every city and municipality. Their main function is to supervise the conduct of electoral activities within their areas of responsibility as field representatives of the Commission. In the central office, there are ten departments, with their corresponding divisions, namely: 1. Administrative Services Department (ASD), a. Cash Division b. Property Division c. Data Processing Division d. General Services Division e. Internal Records Division f. Library Division 2. Election and Barangay Affairs Department (EBAD), a. Precincts Division b. Registration Division 3. Electoral Contests Adjudication Department (ECAD), a. First and Second Division b. Judicial Records Division 4. Education and Information Department (EID), a. Information Division b. Public Relations Division 5. Election Records and Statistics Department (ERSD), a. Records and Statistics Division (RSD) b. National Central File Division (NCFD) c. Voters Identification Division (VID) 6. Finance Services Department (FSD), a. Budget Division b. Accounting Division c. Voucher Processing Division 7. Law Department, a. Investigation and Prosecution Division (IPD) b. Legal Opinion and Research Division (LORD) 8. Personnel Department, a. Personnel Division b. Manpower Development Division c. Health Services Division 9. Planning Department, a. Planning and Programming Division 15

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS b. Management Systems Development Division 10. Information Technology Department (ITD). a. Systems and Programs Division b. Systems and Operations Division c. Management Information System Division Other offices include the: 1. Office of the COMELEC Secretary, 2. Office of the Clerk of Court, and the 3. Internal Audit Office

Mandated Functions 1. Enforce and administer all laws and regulations relative to the conduct of and elections, plebiscite, initiative, referendum, and recall. 2. Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay official decided by trial courts of limited jurisdiction. 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 purposes of ensuring free, orderly, honest, peaceful credible elections. 5. Register, after sufficient publication, political parties, organizations, of coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens arms of the Commission on Elections. 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 elections 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 candidates. 16

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 8. Recommend to the President the removal of any officer of 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. Source: COMELEC ARTICLE I GENERAL PROVISIONS Sec. 1. Title. - This Act shall be known and cited as the "Omnibus Election Code of the Philippines." Sec. 2. Applicability. - This Code shall govern all election of public officers and, to the extent appropriate, all referenda and plebiscites. Sec. 3. Election and campaign periods. - Unless otherwise fixed in special cases by the Commission on Elections, which hereinafter shall be referred to as the Commission, the election period shall commence ninety days before the day of the election and shall end thirty days thereafter. The period of campaign shall be as follows: 1. Presidential and Vice-Presidential Election - 90 days; 2. Election of Members of the Batasang Pambansa and Local Election - 45 days; and 3. Barangay Election - 15 days. Note: During the last Barangay election the campaign period was 10 days. The campaign periods shall not include the day before and the day of the election. However, in case of special elections under Article VIII, Section 5, Subsection (2) of the Constitution, the campaign period shall be forty-five days. Sec. 4. Obligation to register and vote. - It shall be the obligation of every citizen qualified to vote to register and cast his vote. Sec. 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or 17

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect. Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.

DISCUSSIONS GENERAL PRINCIPLES Suffrage Suffrage is the right to vote in the election of all officers chosen by the people, and in the determination of all questions submitted by the people. It includes election, plebiscite, initiative and referendum. R.A. No. 6735 provides; 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 Constitutions or to propose and enact legislations through an election called for the purpose. 18

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS There are three (3) systems of initiative, namely: A.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; A.2 Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (c) "Referendum" is the power of the electorate to approve or reject legislation through an election called for the purpose. It may be of two classes, namely: C.1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and C.2. 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. (e) "Plebiscite" is the electoral process by which an initiative on the Constitution is approved or rejected by the people. NOTE: The constitutional provision on peoples initiative to amend the constitution is not self-executing. Meaning, it can only be implemented through a law passed by Congress. No such law has been passed. Election Election is the embodiment of the popular will, the expression of the sovereign power of the people. (Hontiveros vs Altavas, G.R. No. L-8606 [March 29, 1913]) Specifically defined, it is the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being, as their representatives, the exercise of powers of government. 2 Kinds of Election a.) General it is one provided for by law for the election of officers throughout the State, or certain subdivisions thereof, after the expiration of the full term of the former officers. b.) Special one provided for by law under special circumstances such as when an election is held to fill a vacancy in office, or 19

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS when an election is being held because a certain proposal is submitted to the vote of the qualified electors. (Rolando A. Suarez, Political Law Reviewer Second Edition [2011]) Constitutional Mandate on Congress 1. To provide a system for securing secrecy and sanctity of the ballot, as well as a system for absentee voting by qualified Filipinos abroad. 2. To design a procedure for the disabled and the illiterate to vote without the assistance of other persons. NOTE: R.A. 7166 provides for absentee voting but applies only to elections for President, Vice-President and Senators and is limited to members of the Armed Forces of the Philippines and the Philippine National Police and other government officers and employees who are duly registered voters and who, on election day, may temporarily be assigned in connection with the performance of election duties to place where they are not registered voters. R.A. 9109 addresses the need for overseas Filipinos to be able to vote in the Philippine elections. POSTPONEMENT OF ELECTION A. Causes 1. 2. 3. 4. 5. Violence Terrorism Loss or destruction of election paraphernalia/records Force majeure Other analogous causes

Should it become impossible to hold a free, orderly and honest election in any political subdivision, COMELEC may postpone the election motu proprio or upon a verified petition by any interest party after due notice and hearing. B. Date of new election The date should be reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect. It should not be later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

I.

FAILURE OF ELECTION

A. Causes 20

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

1. 2. 3. 4. 5.

Force majeure Violence Terrorism Fraud Other analogous causes

R.A. 7166 Sec. 4 provides, The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. B. Effects of above causes a. Election in any polling place was not held on the date fixed; b. Election was suspended before the hour fixed by law for the closing of the voting c. Elections results in a failure to elect (after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof) AND the failure or suspension of the election would affect the result of the election. C. Remedy COMELEC can call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect on the basis of a verified petition by any interested party and after due notice and hearing. The election should be held not later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect. This is decided by the COMELEC, by a majority vote of its members, sitting en banc. JURISPRUDENCE

PRESBITERO, JR vs. COMELEC G.R. No. 178884, June 30, 2008 It was held in Batabor v. Commission (G.R. No. 160428) on Elections that "the power to declare a failure of election should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have 21

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS been prevented by violence, intimidation and threats from exercising their franchise. There is failure of election only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected. BAO vs. COMELEC G.R. No. 149666, December 19, 2003 In Mitmug v. COMELEC the Court held that before the COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and second, the votes not cast would affect the result of the election. Under the circumstances, petitioner and petitioner-intervenor are deemed to have waived their right to present further evidence to substantiate their petition. Since, as the following portion of the assailed COMELEC resolution states, both petitioner and petitioner-intervenor failed to discharge the burden of proving their allegations, the COMELEC did not commit grave abuse of discretion. Thus, there can be no other recourse for this Commission than to deny the petition. General allegations, without sufficient evidentiary support, do not warrant a declaration of a failure of elections. Election results are the expression of the will of the people whose welfare and interests must immediately be served by those upon whom the people have placed their trust. Peripherally but not trivially, elections need be consummated with dispatch because the losers or even those just lagging behind in the counting, more often than not, file all kinds of protests and complaints and objections that delay the election process and threaten to deny the people their representation in government. PASANDALAN vs. COMELEC and ASUM G.R. No. 150312, July 18, 2002 FACTS: Pasandalan and Asum were candidates for mayor in the Municipality of Lumbayanague, Lanao del Sur during the May 2001 elections. On May 23, 2001, Pasandalan filed a petition before the COMELEC seeking to nullify the election results in a number of precinct situated in Lumbayanague, Lanao del Sur. He contended that a technical examination of several official ballots from the contested precincts would show that only a few persons wrote the entries. Asum denied Pasandalans allegations. On June 30, 2001, Asum had sworn into office and assumed the position of municipal mayor of the Lumbayanague, Lanao del Sur. On October 12, 2001, the COMELEC issued a Resolution dismissing the petition for lack of merit. It ruled that the power to declare a failure of election, being an extraordinary remedy, could be exercised only in three instances: (1) 22

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the election is not held; (2) the election is suspended; or (3) the election results in a failure to elect. The third instance is understood in its literal sense, that is, nobody was elected. The COMELEC dismissed the petition because none of the grounds relied upon by Pasandalan falls under any of the three instances justifying a declaration of failure of election. First, the elections in the questioned precincts were held as scheduled. Second, the gunshots heard during the casting of votes did not suspend the election as the voting continued normally. Third, Asum was elected by a plurality of votes. Pasandalan filed a petition for review on certiorari of the Resolution of the COMELEC en banc dismissing his petition to declare a failure of election. ISSUES: Whether or not the COMELEC acted with grave abuse of discretion in dismissing the petition of Pasandalan to declare a failure of election. RULING: The COMELEC correctly dismissed the petition for declaration of failure of election because the irregularities alleged in the petition should have been raised in an election protest, not in a petition to declare a failure of election. Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of 1991, the COMELEC en banc is empowered to declare a failure of election under Section 6 of the Omnibus Election Code (BP 881). Based on the provision, three instances justify a declaration of failure of election. These are: a. The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; b. The election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or c. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. What is common in these three instances is the resulting failure to elect. In the first instance, no election is held while in the second, the election is suspended. In the third instance, circumstances attending the preparation, transmission, custody or canvas of the election returns cause a failure to elect. The term failure to elect means nobody emerged as a winner. Pasandalans allegations do not fall under any of the instances that would justify the declaration of failure of election. The election was held in the 16 protested precincts as scheduled. At no point was the election in any of the precincts suspended. Nor was there a failure to elect because of force majeure, violence, terrorism, fraud or other analogous causes during the preparation, transmission, custody and canvass of the election returns. The alleged terrorism was not of such scale and prevalence to prevent 23

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the holding of the election or to cause its suspension. In fact, the casting and counting of votes, the preparation, transmission and canvassing of election returns and the proclamation of the winning candidate took place in due course. The nullification of elections or declaration of failure of elections is an extraordinary remedy. The party who seeks the nullification of an election has the burden of proving entitlement to this remedy. It is not enough that a verified petition is filed. The allegations in the petition must make out a prima facie case for the declaration of failure of election, and convincing evidence must substantiate the allegations. The Supreme Court ruled that there is failure of election only if the will of the electorate is muted and cannot be ascertained. If the will of the people is determinable, the same must be respected as much as possible. In this case, the will of the electorate is readily discernible. Pasandalan should have filed an election protest to substantiate his allegations of electoral anomalies, not a petition to declare a failure of election. BALTAZAR vs. COMELEC G.R. No. 140158, January 29, 2001 The propriety of declaring whether or not there has been a total failure of elections in the entire province is a factual issue which the Supreme Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions prevailing in that area. By their very nature and given the public interest involved in the determination of the results of an election, the controversies arising from the canvass must be resolved speedily; otherwise the will of the electorate would be frustrated. BENITO vs. COMELEC G.R. No. 134913, January 19, 2001 It is the COMELEC en banc which has the exclusive power to postpone, to declare a failure of election, or to call a special election; Two (2) pre-conditions must exist before a failure of election may be declared, thus: (1) no voting has been held in any precinct or precincts due to force majeure, violence or terrorism; and (2) the votes not cast therein are sufficient to affect the results of the election. The cause of such failure may arise before or after the casting of votes or on the day of the election: Evaluation of evidentiary matters is beyond the province of a writ of certiorari. Just as the COMELEC was reluctant to treat petitioners claim as gospel truth, so too do we hesitate to accord weight to this rigmarole of sworn statements; There is no provision in our election law which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. 24

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SISON vs. COMELEC 304 SCRA 170 The rule is, what conjointly determines the nature of a pleading are the allegations therein made in good faith, the stage of the proceeding at which it is filed, and the primary objective of the party filing the same. A pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections, founded as they are on different grounds. There are three (3) instances where a failure of elections may be declared are: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election result in a failure to elect on account of force majeure, violence, terrorism , fraud, or other analogous causes. The scope of pre-proclamation controversy is only limited to the issues enumerated under Section 243 of the Omnibus Election Code, and enumeration therein is restrictive and exclusive. Petitioners citation of Section 242 of the Omnibus Election Code as basis for his right to present his evidence is misplaced. Presentation of evidence before the COMELEC is not at all indispensible in order to satisfy the demands of due process. PANGANDAMAN vs. COMELEC 319 SCRA 283 There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory; Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions.

25

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that "clean elections control the appropriateness of the remedy. In fixing the date for special elections the COMELEC should see to it that: (1) it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, (2) it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The COMELEC can hardly be faulted for tardiness where the dates it set for the special elections were actually the nearest dates from the time total/partial failure of elections was determined a few days away from the time a total/partial failure of elections was declared and, thus, these were "dates reasonably close" thereto. The propriety of declaring whether or not there has been a total failure of elections in a particular place is a factual issue which the Supreme Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions prevailing in the locality. The insistence of a party that the COMELEC violated certain provisions of the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines and the Philippine National Police who are not assigned to the affected areas as members of the Board of Election Inspectors is unconvincing vis--vis the underlying reason of COMELEC to have an effective and impartial military presence "to avoid the risk of another failure of elections." In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. To embark upon the costly electoral exercise insisted upon by petitioner in terms of time and taxpayer's money is an unwarranted imposition on the people of the affected areas and is an unacceptable option to the judicial conscience. TYPOCO, Jr. vs. COMELEC 319 SCRA 498 The COMELEC can call for the holding or continuation of election by reason of failure of election only when the election is not held, is suspended or results in a failure to elect. There are only three (3) instances where a failure of election may be declared.

26

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS While fraud is a ground to declare a failure of election, the commission of fraud must be such that it prevented or suspended the holding of an election including the preparation and transmission of the election returns. LOONG vs. COMELEC G.R. Nos. 107814-15, May 16, 1996 Under the present state of our election laws, the COMELEC has been granted precisely the power to annul elections. Section 4 of Republic Act No. 7166, otherwise known as, "The Synchronized Elections Law of 1991," provides that the COMELEC sitting En Banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. The COMELEC may exercise such power motu proprio or upon a verified petition. The hearing of the case shall be summary in nature, and the COMELEC may delegate to its lawyers the power to hear the case and to receive evidence. FACTS: This case stemmed from elections held in Sulu where LOONG and private respondent Tan ran for the position of Governor while pet. Tulawie and P.R. Estino ran for Vice-Governor. Provincial Board of Canvassers (PBC) recommended to the COMELEC a re-canvass of the election returns of Parang and Talipao. COMELEC, accordingly, relieved all the regular members of the Municipal Board of Canvassers (MBC) and ordered such recanvass by senior lawyers from the COMELEC office in Manila. During the re-canvass, private respondents objected to the inclusion in the canvass of the election returns of Parang. The reconstituted MBC, however, merely noted said objections and forwarded the same to respondent PBC for resolution. PBC denied the objections of private respondents and still included the election returns of Parang municipality. The canvass of respondent PBC showed petitioners to have overwhelmingly won in the municipality of Parang. The private respondents filed petitions with the COMELEC regarding the inclusion of the questioned certificates of canvass and that there was failure of election in said municipality due to massive fraud. Petitioners, likewise filed for failure of elections in 5 other municipalities. COMELEC ruled annulling the results of the elections in Parang as well as holding in abeyance the proclamation of the winning candidates for Governor and Vice-Governor until further orders from the Commission but dismissed other petitions for other municipalities where it was alleged that there were also badges of fraud. HELD: COMELEC was incorrect in annulling elections of Parang, Sulu but not ordering for special elections in the same municipality. It was also incorrect in dismissing other petitions for failure of elections in other municipalities where there were also badges of fraud. The Supreme Court held that, before the COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there were voting, the election nevertheless resulted in a failure to elect; and, second, the votes not cast would 27

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS affect the result of the election. We must add, however, that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous causes. This is an important consideration for, where the propriety of a pre-proclamation controversy ends, there may begin the realm of a special action for declaration of failure of elections. While the COMELEC is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean. Needless to say, a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections. HASSAN vs. COMELEC G.R. No. 124089, November 13, 1996 FACTS: Petitioner, Hadji Nor Basher L. Hassan, and Private Respondent, Mangondaya P. Hassan Buatan, were candidates for Vice-Mayor in Lanao del Sur. However, due to threats of violence and terrorism in the area, there was a failure of elections in six (6) out of twenty-four (24) precincts. In one of the precincts, the ballot boxes were burned, while in the other 5 precincts, the members of the Board of Election Inspectors (BEI) failed to report to their respective polling places. The COMELEC team, headed by Garcillano, recommended the holding of special elections in said precincts and scheduled it. The members of the BEI again failed to report. The COMELEC team rescheduled the elections in Liangan Elementary School, which was 15 kilometers away from the designated polling places. The members of the BEI once more did not report for duty. This constrained the COMELEC team to appoint police/military personnel to substitute for the BEI. The result of the special election was in favor of the Private Respondent: Petitioner = 879, Respondent = 1,098. Petitioner filed a petition with the COMELEC assailing the validity of the re-scheduled special election. COMELEC en banc denied the petition for a declaration of failure of the elections and ordered the Board of Canvassers to proclaim Private Respondent as the winning vice-mayoralty candidate. Thus, the petition for certiorari ISSUE: Whether or not there was failure of elections. HELD: The concurrence of the following preconditions is necessary for declaring a failure of election: (1) that no voting has been held in any precinct or precincts 28

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS because of force majeure, violence or terrorism, and (2) that the votes not cast therein suffice to affect the results of the elections. The COMELEC cannot turn a blind eye to the fact that terrorism was so prevalent in the area. Elections had to be set for the third time because no members of the BEI reported for duty due to impending threats of violence in the area. This in fact prompted COMELEC to deploy military men to act as substitute members just so elections could be held; and to thwart these threats of violence, the COMELEC team, moreover, decided to transfer the polling places to Liangan Elementary School which was 15 kilometers away from the polling place. The peculiar situation of this case cannot be overstated. The notice given on the afternoon of the day before the scheduled special elections and transferring the venue of the elections 15 kilometers away from the farthest barangay/school was too short resulting to the disenfranchisement of voters. Out of the 1,546 registered voters in the five (5) precincts, only 328 actually voted. It was quite sweeping and illogical for the COMELEC to state that the votes uncast would not have in any way affected the results of the elections. While the difference between the two candidates is only 219 out of the votes actually cast, the COMELEC totally ignored the fact that there were more than a thousand registered voters who failed to vote.

Sec. 7. Call of special election. - (1) In case a vacancy arises in the Batasang Pambansa eighteen months or more before a regular election, the Commission shall call a special election to be held within sixty days after the vacancy occurs to elect the Member to serve the unexpired term. (Repealed by CONST., Art VI, 9. See also Sec. 4, Rep. Act No. 7166) (2) In case of the dissolution of the Batasang Pambansa, the President shall call an election which shall not be held earlier than forty-five nor later than sixty days from the date of such dissolution. The Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality affected. Sec. 8. Election Code to be available in polling places. - A printed copy of this Code in English or in the national language shall be provided and be made available by the Commission in every polling place, in order that it may be readily consulted by any person in need thereof on the registration, revision and election days. Sec. 9. Official mail and telegram relative to elections. - Papers connected with the election and required by this Code to be sent by public officers in 29

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the performance of their election duties shall be free of postage and sent by registered special delivery mail. Telegrams of the same nature shall likewise be transmitted free of charge by government telecommunications and similar facilities. It shall be the duty of the Postmaster General, the Director of the Bureau of Telecommunications, and the managers of private telecommunication companies to transmit immediately and in preference to all other communications or telegrams messages reporting election results and such other messages or communications which the Commission may require or may be necessary to ensure free, honest and orderly elections. Sec. 10. Election expenses. - Except in barangay elections, such expenses as may be necessary and reasonable in connection with the elections, referenda, plebiscites and other similar exercises shall be paid by the Commission. The Commission may direct that in the provinces, cities, or municipalities, the election expenses chargeable to the Commission be advanced by the province, city or municipality concerned subject to reimbursement by the Commission upon presentation of the proper bill. Funds needed by the Commission to defray the expenses for the holding of regular and special elections, referenda and plebiscites shall be provided in the regular appropriations of the Commission which, upon request, shall immediately be released to the Commission. In case of deficiency, the amount so provided shall be augmented from the special activities funds in the general appropriations act and from those specifically appropriated for the purpose in special laws. Sec. 11. Failure to assume office. - The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. 30

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

MAGNO vs. COMELEC and MONTES G.R. No. 147904, October 4, 2002 FACTS: On July 25, 1995, Magno was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 mos. and 21 days of prision correccional as maximum for each of the four counts. Magno applied for probation and was discharged on March 5, 1998.On March 21, 2001, Montes filed a petition for disqualification of Magno as mayoralty candidate of San Isidro, Nueva Ecija for the 2001 elections on the ground that he was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. On May 7, 2001, the COMELEC granted the petition and declared that Magno was disqualified from running for the position of Mayor. In ruling against petitioner, the COMELEC cited Section 12 of the BP 881 or the Omnibus Election Code. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. According to COMELEC, in as much as Magno was considered to have completed the service of his sentence on March 5, 1998, his 5disqualification will end only on March 5, 2003. Magno filed a motion for reconsideration but was denied. He then elevated the case to the Supreme Court by way of petition for certiorari under Rule 65 and argues that direct bribery is not a crime involving moral turpitude. He also cited that Sec. 40 of RA 7160 should be applied in the present case and not the BP 881 (otherwise known as the Omnibus Election Code). ISSUES: 1. Whether the crime of direct bribery involves moral turpitude; 2. Whether or not the Omnibus Election Code or the Local Government Code is applicable in the present case; and 3. Whether or not Magno was disqualified to run for Mayor in the 2001 elections

RULING: 1. The Blacks Law Dictionary define moral turpitude as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary 31

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. Moral turpitude can be inferred from the third element of direct bribery. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. 2. It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law.6 The reduction of the disqualification period from five to two years is the manifest intent. 3. Although Magnos crime of direct bribery involved moral turpitude, he cannot be disqualified from the running in the 2001 elections. Article 12 of the Omnibus Election Code must yield to Art. 40 of the Local Government Code. His disqualification therefore, ceased as of March 5, 2000.

32

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE II ELECTION OF PRESIDENT AND VICE-PRESIDENT Sec. 13. Regular election for President and Vice-President. - The regular election for President and Vice-President of the Philippines shall be held on the first Monday of May Nineteen hundred eighty seven (1987) and on the same day every six years thereafter. The President-elect and the VicePresident-elect shall assume office at twelve o'clock noon on the thirtieth day of June next following the election and shall end at noon of the same date, six years thereafter when the term of his successor shall begin. Sec. 14. Special election for President and Vice-President. - In case a vacancy occurs for the Office of the President and Vice-President, the Batasang Pambansa shall, at ten o'clock in the morning of the third day after the vacancy occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph (2), Section 19, Article VIII of the Constitution and shall become law upon its approval on third reading by the Batasang Pambansa. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph (4), Section 16 of Article VIII of the Constitution. The convening of the Batasang Pambansa cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within seventy days before the date of the presidential election of 1987. Sec. 15. Canvass of votes for President and Vice-President by the provincial or city board of canvassers. - The provincial, city, or district boards of canvassers in Metropolitan Manila, as the case may be, shall meet not later than six o'clock in the evening on election day to canvass the election returns that may have already been received by them, respectively. It shall meet continuously from day to day until the canvass is completed, but may adjourn only for the purpose of awaiting the other election returns. Each time the board adjourns, it shall make a total of all the votes cast for each candidate for President and for Vice-President, duly authenticated by the signatures and thumbmarks of all the members of the provincial, city or district board of canvassers, furnishing the Commission in Manila by the fastest means of communication a copy thereof, and making available the data contained therein to mass media and other interested parties. Upon the completion of the canvass, the board shall prepare a certificate of canvass showing the votes received by each candidate for the office of the President and for Vice-President, duly authenticated by the signatures and thumbmarks of all the members of the provincial, city or district board of 33

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS canvassers. Upon the completion of the certificate of canvass, the board shall certify and transmit the said certificate of canvass to the Speaker of the Batasang Pambansa. The provincial, city and district boards of canvassers shall prepare the certificate of canvass for the election of President and Vice-President, supported by a statement of votes by polling place, in quintuplicate by the use of carbon papers or such other means as the Commission shall prescribe to the end that all five copies shall be legibly produced in one handwriting. The five copies of the certificate of canvass must bear the signatures and thumbmarks of all the members of the board. Upon the completion of these certificates and statements, they shall be enclosed in envelopes furnished by the Commission and sealed, and immediately distributed as follows: the original copy shall be enclosed and sealed in the envelope directed to the Speaker and delivered to him at the Batasang Pambansa by the fastest possible means; the second copy shall likewise be enclosed and sealed in the envelope directed to the Commission; the third copy shall be retained by the provincial election supervisor, in the case of the provincial board of canvassers, and by the city election registrar, in the case of the city board of canvassers; and one copy each to the authorized representatives of the ruling party and the dominant opposition political party. Failure to comply with the requirements of this section shall constitute an election offense. Sec. 16. Counting of votes for President and Vice-President by the Batasang Pambansa. - The certificates of canvass, duly certified by the board of canvassers of each province, city or district in Metropolitan Manila shall be transmitted to the Speaker of the Batasang Pambansa, who shall, not later than thirty days after the day of the election, convene the Batasang Pambansa in session and in its presence open all the certificates of canvass, and the votes shall then be counted. Sec. 17. Correction of errors in certificate and supporting statement already transmitted to the Speaker. - No correction of errors allegedly committed in the certificate of canvass and supporting statement already transmitted to the Speaker of the Batasang Pambansa shall be allowed, subject to the provisions of the succeeding section. Sec. 18. Preservation of ballot boxes, their keys, and disposition of their contents. - Until after the completion by the Batasang Pambansa of the canvassing of the votes and until an uncontested proclamation of the President-elect and Vice-President-elect shall have been obtained, the provincial, city or district board of canvassers under the joint responsibility with the provincial, city or municipal treasurers shall provide for the safekeeping and storage of the ballot boxes in a safe and closed chamber secured by four padlocks: one to be provided by the corresponding board chairman; one by the provincial or city treasurer 34

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS concerned; and one each by the ruling party and the accredited dominant opposition political party. Sec. 19. When certificate of canvass is incomplete or bears erasures or alterations. - When the certificate of canvass, duly certified by the board of canvassers of each province, city or district in Metropolitan Manila and transmitted to the Speaker of the Batasang Pambansa, as provided in the Constitution, appears to be incomplete, the Speaker shall require the board of canvassers concerned to transmit to his office, by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery to the Speaker within two days from receipt of notice. When it appears that any certificate of canvass or supporting statement of votes by polling place bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, the Batasang Pambansa upon request of the Presidential or Vice-Presidential candidate concerned or his party shall, for the sole purpose of verifying the actual number of votes cast for President or Vice-President, count the votes as they appear in the copies of the election returns for the Commission. For this purpose, the Speaker shall require the Commission to deliver its copies of the election returns to the Batasang Pambansa. Sec. 20. Proclamation of the President-elect and Vice-President-elect. Upon the completion of the canvass of the votes by the Batasang Pambansa, the persons obtaining the highest number of votes for President and for Vice-President shall be declared elected; but in case two or more shall have an equal and the highest number of votes, one of them shall be chosen President or Vice-President, as the case may be, by a majority vote of all the Members of the Batasang Pambansa in session assembled. In case there are certificates of canvass which have not been submitted to the Speaker of the Batasang Pambansa on account of missing election returns, a proclamation may be made if the missing certificates will not affect the results of the election. In case the certificates of canvass which were not submitted on account of missing election returns will affect the results of the election, no proclamation shall be made. The Speaker shall immediately instruct the boards of canvassers concerned to obtain the missing election returns from the boards of election inspectors or, if the returns have been lost or destroyed upon prior authority from the Commission, to use any authentic copy of said election returns for the purpose of conducting the canvass, and thereafter issue the certificates of canvass. The certificates of canvass shall be immediately transmitted to the Speaker of the Batasang Pambansa. 35

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Proclamation shall be made only upon submission of all certificates of canvass or when the missing certificates of canvass will not affect the results of the election.

DISCUSSIONS

The Executive Department is in charge of enforcing and administering the laws of the land headed by the President and the Vice-President. It is composed of several departments that embody the utilization and organization of the duly constituted government. Term of Office The 1987 Constitution, Article 7, Section 4 states that the President and VicePresident shall be elected by the direct vote of people for a term of six (6) years x x x. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than 4 years shall be qualified for election to the same office at any time. For the vice president, the second paragraph of the same section states that no vice-president shall serve for more than two (2) successive terms.

Qualifications Section 63, Article IX of Batas Pambansa (B.P.) 881, also known as The Omnibus Election Code of the Philippines, provides for the specific qualifications of the President and Vice-President. It states that no person may be elected President unless: 1. A natural born Filipino citizen A natural born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect Philippine citizenship as distinguished from the naturalized citizen. 2. A registered voter

36

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The registration as a voter connotes possession of the qualifications for suffrage as enumerated in Article VI Section 1 of the Constitution. 3. Able to read and write The literacy qualification is now expressly required because it is not deemed embraced in the suffrage qualification. 4. At least 40 years old on the day of election The age requirement justifiably connotes maturity as was needed for the highest office in the land. It should be noted that this should be possessed by the candidate on the day of the election for President regardless of the time the President-elect is actually proclaimed. 5. A resident of the Philippines for at least 10 years immediately preceding such election. This is to ensure close touch by the President to the country of which he is to be the highest official and familiarity with its conditions and problems, the better for him to discharge his duties effectively. Article VII Section 3 provides that the Vice-President shall have the same qualifications and term of office and be elected with and in the same manner as the President. He may be removed from the office in the same manner.

37

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE III ELECTION OF MEMBERS OF THE BATASANG PAMBANSA Sec. 21. Regular election of Members of the Batasang Pambansa. - The regular election of the Members of the Batasang Pambansa shall be held on the second Monday of May, Nineteen hundred and ninety (1990) and on the same day every six years thereafter. Sec. 22. Special election for Members of the Batasang Pambansa. - In case a vacancy arises in the Batasang Pambansa eighteen months or more before a regular election, the Commission shall call a special election to be held within sixty days after the vacancy occurs to elect the Member to serve the unexpired term. The Batasang Pambansa through a duly approved resolution or an official communication of the Speaker when it is not in session shall certify to the Commission the existence of said vacancy. Sec. 23. Composition of the Batasang Pambansa. - The Batasang Pambansa shall be composed of not more than two hundred Members elected from the different provinces of the Philippines with their component cities, highly urbanized cities and districts of Metropolitan Manila, those elected or selected from various sectors as provided herein, and those chosen by the President from the members of the Cabinet. Sec. 24. Apportionment of representatives. - Until a new apportionment shall have been made, the Members of the Batasang Pambansa shall be apportioned in accordance with the Ordinance appended to the Constitution. Note: The Congress has the power to decide whether there is a requirement to apportion a new member of the House of Representative as may be provided by law. Any province that may hereafter be created or any component city that may hereafter be declared by or pursuant to law as a highly urbanized city shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of the inhabitants and on the same uniform and progressive ratio used in the last preceding apportionment. The number of Members apportioned to the province out of which the new province was created or where the new highly urbanized city is geographically located shall be correspondingly adjusted by the Commission, but such adjustment shall not be made within one hundred twenty days before the election. 38

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 25. Voting by province and its component cities, by highly urbanized city or by district in Metropolitan Manila. - All candidates shall be voted at large by the registered voters of their respective constituencies. The candidates corresponding to the number of Member or Members to be elected in a constituency who receive the highest number of votes shall be declared elected. Section 26. Sectoral representatives. - There shall be three sectors to be represented in the Batasang Pambansa, namely:(1) youth; (2) agricultural labor; (3) industrial labor whose representatives shall be elected in the manner herein provided. Each sector shall be entitled to four representatives, two of whom shall come from Luzon, one from Visayas, and one from Mindanao: Provided, that the youth sector shall be entitled to two additional sectoral representatives who shall be elected from any part of the country. Section 27. Scope of the sectors. - The agricultural labor sector covers all persons who personally and physically till the land as their principal occupation. It includes agricultural tenants and lessees, rural workers and farm employees, owner-cultivators, settlers and small fishermen. The industrial labor sector includes all non-agricultural workers and employees. The youth sector embraces persons not more than twenty-five years of age. Section 28. Selection of sectoral representatives. - Not later than twenty days after the election of provincial, city or district representatives, the most representative and generally recognized organizations or aggroupments of members of the agricultural labor, industrial labor, and youth sectors, as attested to by the Ministers of Agrarian Reform and of Agriculture and Food, the Ministers of Labor and Employment, and the Ministers of Local Government and of Education, Culture and Sports, respectively, shall, in accordance with the procedures of said organizations or aggroupments of members of the sector, submit to the President their respective nominees for each slot allotted for each sector. The President shall appoint from among the nominees submitted by the aforementioned organizations or aggroupments the representatives of each sector. In recognizing the most representative and generally recognized organizations or aggroupments, the Ministers of Agrarian Reform and of Agriculture and Food, the Minister of Labor and Employment, and the Ministers of Local Government and Education, Culture and Sports shall consider: 39

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS a. The extent of membership and activity of the organization or aggroupment which should be national; b. The responsiveness of the organization or aggroupment to the legitimate aspirations of its sector; c. The militancy and consistency of the organization or aggroupment in espousing the cause and promoting the welfare of the sector consistent with that of the whole country; d. The observance by such organization or aggroupment of the rule of law; and e. Other analogous factors. The President of the Philippines shall, in writing, notify the SecretaryGeneral of the Batasang Pambansa of the appointment made by him of any sectoral representative. Except as herein otherwise provided, sectoral representatives shall have the same functions, responsibilities, rights, privileges, qualifications and disqualifications as the representatives from the provinces and their component cities, highly urbanized cities or districts of Metropolitan Manila.

DISCUSSIONS

Sections 21 to 28 of B.P. 881 were repealed by the enactment of the 1987 Constitution of the Philippines, the pertinent provisions of which are hereby partly quoted, viz: ARTICLE XVIII (TRANSITORY PROVISIONS) Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years. Congress is composed of two chambers known as the Senate (upper chamber) and the House of Representatives (lower chamber). The manner in which members of both chambers are selected is provided for under Section 3 of Executive Order No. 134, otherwise known as the ENABLING ACT FOR THE ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987, AND FOR OTHER PURPOSES, which reads: Sec. 3. Manner of election. The twenty-four (24) members of the Senate shall be elected at large by the qualified voters of the Philippines. The Members of the House of Representatives shall be elected by the qualified voters of the respective legislative districts apportioned among the provinces, cities and the Metropolitan Manila area as provided for in the Ordinance appended to the 1987 Constitution. The candidates corresponding to the number of Senators to be elected at large and the candidate/s for the House of Representatives from each legislative district who garnered the highest number of votes shall be declared elected. The Legislative Department has the power to enact and amend the laws of the land. SENATE Composition & Term of Office 1987 Constitution Art VI provides: Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Section 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Senate is composed of twenty four (24) members. Each member has a term of six years. Under the 1987 Constitution, half of the members are retained and half of them are replaced or reelected every three years. This is to encourage the maintenance of senate policies as well as to guarantee that there will be experienced members who can help and train newcomers in the discharge of their duties. Qualifications Article VI of the 1987 Constitution states: Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. The senators must possess the following qualifications as provided for in the constitution. In sum, as follows: 1. Natural Born Filipino Citizen 2. 35 years old on the day of election 3. Literate: able to read and write 4. Residence: not less than 2 years 5. Registered Voter HOUSE OF REPRESENTATIVES Term of Office The term of the members of the House of representatives as provided by the 1987 Constitution states: Section 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Composition A new composition is prescribed for the House of Representatives consisting of two kinds of members: Article VI of the 1987 Constitution states:

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 5. 1. The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. 2. The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. 3. Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. 4. Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

A. The District Representatives elected directly and personally from the territorial unit he is seeking to represent Composition: not more than 250 members B. The Partylist Representatives chosen indirectly through the party he represents, which is the one voted for by the electorate Composition: constitutes 20% of the total membership of the body This requirement prescribes a ceiling and is not considered a mandatory requirement. The number of partylist seats is determined using the hereunder formula: # of district representatives .80 43 x .20

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Qualifications B.P 881 provides: Sec. 64. Qualifications for Members of the Batasang Pambansa. - No person shall be elected Member of the Batasang Pambansa as provincial, city or district representative unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, a registered voter in the constituency in which he shall be elected, and a resident thereof for a period of not less than six months immediately preceding the day of the election. 1. 2. 3. 4. 5. Natural-born citizen At least 25 years of age on the day of election Able to read and write A registered voter in the district in which he shall be elected Resident thereof not less than six months preceding the day of election

Section 26 to 28 of the Omnibus Election Code which provides for the Sectoral Representatives are now repealed by the Party-list System under Republic Act No. 7941. Under R.A. 7941, particularly Section 11, in connection with the 1987 Constitution, twenty percent (20%) of the members of the House of Representatives shall be composed of party-list representatives. The allocations of seats for the party-list representatives are provided for under par. (a) and (b) of Section 11, thus: a. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. b. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. To illustrate, supposing that there are twenty registered party-list in COMELEC and the total number of votes cast for the entire party-list are 100,000 and the party-list are ranked, according to the number of votes garnered, as follows:

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Party-list A B C D E F G H I J K L M N O P Q R S T Votes Garnered 18000 16100 12000 11000 8000 5500 3350 3100 3000 2800 2600 2500 2350 2300 2200 2000 1700 700 500 300 Percentage 18% 16.10% 12% 11% 8% 5.50% 3.35% 3.10% 3% 2.80% 2.60% 2.50% 2.35% 2.30% 2.20% 2% 1.70% 0.70% 0.50% 0.30%

Applying paragraph (b) of Section 11, Party-list A, B, C, D, ad E are entitled to 3 seats each for getting more than six percent of the total votes cast (one seat for every two percent which shall in no case exceed three seats). Party-list F is entitled to two seats, while Party-list G, H, I, J, K, L, M, N, O, and P are entitled to 1 seat each. Finally, for not reaching the required two percent, Party-list Q, R, S, and T are not entitled to a seat. If, however, the mandatory 20% of the members of the House of Representatives belonging to the Party-list are not complied with or is insufficient (after seats had already been allocated based on the 2% rule), then the Party-list shall be ranked according to their total number of votes garnered and the remaining vacant seats shall be allocated base on such ranking. JURISPRUDENCE BANAT vs. COMELEC G.R. No. 179271, July 8, 2009 There are four parameters in a Philippine-style party-list election system: 1. Twenty percent of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list 45

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS organizations, such that there is automatically one party-list seat for every four existing legislative districts. 2. Garnering two percent of the total votes cast in the party-list elections guarantees a party-list organization one seat. The guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes. 3. The additional seats, that is, the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than two percent of the total votes. The continued operation of the two percent threshold as it applies to the allocation of the additional seats is now unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the Supreme Courts Decision of 21 April 2009 as clarified in this Resolution. 4. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts will not question the wisdom of the Legislature as long as it is not violative of the Constitution. VETERANS FEDERATION PARTY vs. COMELEC G.R. No. 136781, October 06, 2000 The parameters of the Party-list system and the formula for determining the number of additional seats that a qualified party is entitled to: First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS IMPORTANT NOTES ABOUT THE PARTY-LIST SYSTEM Registration Procedure: 1. Filing of a verified petition not later than ninety (90) before the election, along with the following: a. The party-list constitution, by-laws, platform or program of government; b. List of officers; c. Coalition agreement, if any; d. Others as may be required by COMELEC. 2. The COMELEC shall publish the petition in at least two (2) national newspaper of general circulation After due notice and hearing, COMELEC shall resolve the petition within fifteen (15) days from the date it was submitted for decision, which shall in no case be later than sixty (60) days before the election; Characteristics 1. Only in House. Only available in the House of Representatives 2. 20 % Allocation. Prescribed ceiling not considered mandatory 3. Two votes. Voters are entitled to cast two votes for the House of Rep. First = district rep Second= partylist rep 4. The 2% Threshold & 3-Seat Limit. a. 2% of the national tally of votes in the partylist race is required to earn one qualifying seats b. Limited only or maximum of 3 seats per party. Party other than the party who obtained the Highest number of votes may be entitled to additional seats based on the formula hereunder: # of votes of the other party party # of votes of the Highest party X # of seats of the highest

5. Exclusive to the Marginalized. Only political parties and organizations that actually and truly represent the marginalized and underrepresented constituencies can participate. a. Sectoral Parties 47

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. Labor Fisher Folk Peasant Women Urban Poor Youth Indigenous Communities Overseas Workers Veterans Cultural Communities Professionals Handicapped Elderly / Senior Citizens

b. Sectoral Organizations groups bound together by similar attributes or characteristics or employment interests or concerns c. Political Parties qualified voters pursuing the same ideology, political ideas and principles for the general conduct of the government. May either be (a) national party or (b) regional party d. Coalitions. For political and / or election purposes. Grounds for Cancellation/Refusal of Registration: a. Party-list is a religious sect or denomination or association organized for religious purposes; b. It advocates violence or unlawful means to seek its goal; c. It is a foreign party d. It receives support, directly or indirectly, from any foreign government; e. It violates or fails to comply with laws, rules and regulations on election; f. Declaration of false statements; g. It has ceased to exist for at least one (1) year; h. It fails to participate in the last two elections or fails to obtain two per centum of votes in the last to elections; 1. The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions who were granted registration; 2. Each registered party-list shall submit to COMELEC not later than forty-five (45) days before election a list on names, not less than five (5), from which the party-list representatives shall be chosen; 48

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. Only those who possess the following qualifications shall be a party-list nominees: a. b. c. d. e. f. JURISPRUDENCE Natural born citizen of the Philippines; A registered voter; A resident for at least one (1) year; Able to read and write; A bona fide member of the party-list whom he represents for at least ninety (90) days before election; and Not less than twenty-five (25) years of age.

PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI), et al. vs. COMELEC G.R. No. 190529, April 29, 2010 To reiterate, (a) Section 6(8) of R.A. 7941 provides for two separate grounds for delisting; these grounds cannot be mixed or combined to support delisting; and (b) the disqualification for failure to garner 2% party-list votes in two preceding elections should now be understood, in light of the Banat ruling, to mean failure to qualify for a party-list seat in two preceding elections for the constituency in which it has registered. This, we declare, is how Section 6(8) of R.A. 7941 should be understood and applied. We do so under our authority to state what the law is, and as an exception to the application of the principle of stare decisis.

Ang LADLAD LGBT PARTY vs. COMELEC G.R. 190582, April 8, 2010 We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these generally accepted public morals have not been convincingly transplanted into the realm of law. The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that there should have been a finding by the COMELEC that the groups members have committed or are committing immoral acts. The OSG argues:

49

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the straights and the gays. Certainly this is not the intendment of the law. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the partylist system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.

ANG BAGONG BAYANI-OFW LABOR PARTY vs. COMELEC G.R. No. 147589, June 26, 2001 The Supreme Court issued the guidelines in determining whether party-list groups have complied with the requirements of the law, thus: First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors. Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives. In other words, while they are not disqualified merely on the ground that they are political parties, they must 50

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS show, however, that they represent the interests of the marginalized and underrepresented. Third, in view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. Furthermore, the Constitution provides that religious denominations and sects shall not be registered. Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees.

51

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE IV ELECTION OF LOCAL OFFICIALS Section 29. Regular elections of local officials. - The election of provincial, city and municipal officials whose positions are provided for by the Local Government Code shall be held throughout the Philippines in the manner herein prescribed on the first Monday of May, Nineteen hundred and eighty-six and on the same day every six years thereafter. The officials elected shall assume office on the thirtieth day of June next following the election and shall hold office for six years and until their successors shall have been elected and qualified. All local incumbent officials whose tenure of office shall expire on March 23, 1986 shall hold office until June 30, 1986 or until their successors shall have been elected and qualified: Provided, that they cannot be suspended or removed without just cause.

DISCUSSIONS

Repealed by Paragraph 2 of Section 1, Article XVIII of the 1987 Constitution, which provides: Section 1. x x x The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. The term of the Local Government Officials are now provided for under Section 8, Article X of the Constitution, which reads: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. 52

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The term of the local government official is significantly reduced, from six (6) years provided for by B.P. 881, to three (3) years by the enactment of the Constitution. Section 30. Component and highly urbanized cities. - Unless their respective charters provide otherwise, the electorate of component cities shall be entitled to vote in the election for provincial officials of the province of which it is a part. The electorate of highly urbanized cities shall not vote in the election for provincial officials of the province in which it is located: Provided, however, that no component city shall be declared or be entitled to a highly urbanized city status within ninety days prior to any election. DISCUSSIONS QUALIFICATIONS A. Basic Qualifications: a. A citizen of the Philippines; b. A registered voter; c. A resident in the district, city, or municipality where he intends to run as candidate for at least one (1) year; d. Able to read and write Filipino or any other local language or dialect; B. Additional Qualification: a. Candidates for Governor, Vice-Governor, Members of the Sangguniang Panlalawigan (Provincial Board Member), Mayor, Vice-Mayor, or members of the Sangguniang Panlungsod of highly urbanized cities must be at least twenty-three (23) years of age b. Candidates for Mayor or Vice Mayor of independent component cities, component cities of municipalities must be at least twentyone (21) years of age; c. Candidates for members of the Sangguniang Panlunsod (City Couselor) or Sangguniang Bayan (Municipal Counselor) must be at least eighteen (18) years of age; (Section 39, paragraph (a), (b), (c), and (d) of the Local Government Code)

53

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS CITY/ MUNICIPALITIES /BARANGAY In order to meet the welfare of the society, the Philippine Government instituted a framework that would be more efficient in responding to the needs and interests of its citizens. Thus, in 1991 the Philippine legislature promulgated the Local Government Code of the Philippines. This code serves as the foundation of a local government unit that shall govern all parts of our society in the provinces, cities, and barangays. As firmly quoted from its state policy the Local Government Code of the Philippines of 1991 provides in Section (2) (a): It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units This is the embodiment of ensuring that good governance is within reach of every Filipino. THREE AREAS IN THE LOCAL GOVERNMENT 1. CITY A city is generally defined as a relatively large and permanent urban settlement. (Goodall, B. (1987) The Penguin Dictionary of Human Geography. London: Penguin.) A city (lungsod or siyudad in Filipino and Tagalog) is a tier of local government in the Philippines. All Philippine cities are chartered cities, whose existence as corporate and administrative entities is governed by their own specific charters in addition to the Local Government Code of 1991, which specifies the administrative structure and political powers of subnational government entities. (National Statistical Coordination Board(NSCB). Retrieved 20 April 2013.) Cities are entitled to one congressional district and representative per 250,000 population count, allowed to have their own police force and allowed to use a common seal. As corporate entities, cities have the power to take, purchase, receive, hold, lease, convey, and dispose of real and personal property for its general interests, condemn private property for public use (eminent domain), contract and be contracted with, sue and exercise all the powers conferred to it by Congress. Only an Act of Congress can create or amend a city charter, 54

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS and with this city charter Congress confers to a city certain powers that regular municipalities or even other cities may not have. Despite the differences in the powers accorded to each city, all cities regardless of status are given special treatment in terms of being given a bigger share of the internal revenue allotment (IRA) compared to regular municipalities, as well as being generally more autonomous than regular municipalities. A city's local government is headed by a mayor elected by popular vote. The vice-mayor serves as the presiding officer of the Sangguniang Panlungsod (city council), which serves as the city's legislative body. Upon receiving their charters, cities also receive a full complement of executive departments to better serve their constituents. Some departments are established on a case-by-case basis, depending on the needs of the city. There are twelve metropolitan areas in the Philippines as defined by the National Economic and Development Authority (NEDA). Metro Manila is the largest conurbation or urban agglomeration in the country, and its official metropolitan area is composed of the city of Manila plus 15 neighboring cities and a municipality. Other metropolitan areas are centered around the cities of Baguio, Dagupan, Angeles, Olongapo, Batangas, Naga, Iloilo, Bacolod, Cebu, Cagayan de Oro and Davao. The Sangguniang Panlungsod It is the local legislative branch of city governments in the Philippines. The term is coined from the Tagalog words "sanggunian" and "lungsod" which means "city council". It passes ordinances and resolutions for the administration of the city. Its powers are defined by the Local Government Code of 1991. It has legislative and quasi-judicial powers and functions. COMPOSITION a. Presiding officer The city vice mayor serves as the presiding officer of the Sangguniang Panlungsod. In the absence of the vice mayor, a temporary presiding officer is assigned by the members of the Sangguniang Panlungsod from among themselves. b. Members The members of the Sangguniang Panlungsod, often referred to as councilors are either elected or ex-officio. The number of elected councilors a city's Sangguniang Panlungsod is composed of is prescribed in its charter. In absence of such a provision, it is then composed of ten elected councilors; on the other hand, if the city also corresponds to a legislative district, it then 55

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS elects twelve. Some cities also elect their councilors by districts which may also be provided in its charter. In general, cities which are composed of at least two legislative districts, equally divide its elected council seats among its districts. Of all the cities, Manila has the most number of elected councilors with 36, followed by Davao and Quezon City with 24 each. 2. PROVINCE The Provinces of the Philippines are the primary administrative divisions of the Philippines. There are 79 provinces at present, further subdivided into component cities and municipalities. The National Capital Region including independent cities, are autonomous from any provincial government. Each province is administered by an elected governor who oversees various local government entities. The provinces are grouped into seventeen regions based on geographical, cultural, and ethnological characteristics. Fourteen of these regions are designated with numbers corresponding to their geographic location in order from north to south. The National Capital Region, Cordillera Administrative Region, and Autonomous Region in Muslim Mindanao do not have numerical designations. Each province is member to the League of Provinces of the Philippines, an organization which aims to address issues affecting provincial and metropolitan government administrations. I. The Sangguniang Panlalawigan (English: Provincial Board) is the legislature of all provinces in the Philippines. It passes ordinances and resolutions for the effective administration of the province. Its powers and responsibilities are defined by the Local Government Code of 1991. Composition The Sangguniang Panlalawigan (commonly abbreviated to SP) is composed of regularly elected members and ex-officio members. The provincial vice governor serves as its presiding officer, who do not vote except in cases to break a tie. Regularly elected members are elected from Sangguniang Panlalawigan districts. The total number of SP members to be elected within the province and the number within each SP district varies depending on 56

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS several factors, including the province's income class and the population count within districts. Ex-officio members in the Sanggunian include:

the president of the provincial chapter of the Liga ng mga Barangay the president of the provincial federation of Youth Councils (Sangguniang Kabataan) the president of the provincial federation of members of Sangguniang Panlungsod and Sangguniang Bayan members from component cities and municipalities

II. The Sangguniang Bayan It is the legislature of municipal governments in the Philippines. It passes ordinances and resolutions for the effective administration of the municipality. Its powers are defined by the Local Government Code of 1991. Similar to the Sangguniang Bayan of municipalities in the Philippines, the Sangguniang Panlungsod also allocates a council seat to the city chapter presidents of the Liga ng mga Barangay and Pederasyon ng Sangguniang Kabataan Composition a. Presiding officer The municipal vice mayor serves as the presiding officer of the Sagguniang Bayan, who has no voting privilege except in cases to break a deadlock. In the absence of the vice mayor, a temporary presiding officer is elected by the Sangguniang Bayan members or councilors present at the session. b. Members All municipalities in the Philippines, with the exception of Pateros in Metro Manila, have eight regular members or councilors elected atlarge. In the case of Pateros, its Sangguniang Bayan is composed of twelve elected councilors, wherein six are elected from each of the two districts Pateros is divided into. There are also two ex-officio councilors the municipal chapter presidents of the Liga ng mga Barangay and Pederasyon ng Sangguniang Kabataan. The Local Government Code provides for an additional three sectoral representatives representing: women, laborers, and any of the urban poor, indigenous cultural communities, disabled persons or another 57

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS sector that maybe identified by the Sangguniang Bayan; however, this provision still has to be implemented. Term, Qualification and Election Elected or regular members of the Sangguniang Bayan must at least be 18 years old on election day; the first-past-the-post voting system is used to elect these members. They are elected for a three-year term and may serve up to three consecutive terms. Elections are held simultaneously with the general elections held every three years since 1992. The term begins at noon of June 30 following election day, and ends at noon of June 30 of the third year. Similar to other local officials in the Philippines, recall elections may be initiated by at least 25 percent of registered voters in the municipality against any regular Sangguniang Bayan member should they lose confidence with any of them.

3. BARANGAY A barangay, also known by its former Spanish adopted name, the barrio, is the smallest administrative division in the Philippines and is the native Filipino term for a village, district or ward. Barangays are further subdivided into smaller areas called Puroks (English: Zone). A sitio is a territorial enclave inside a barangay, especially in rural areas. Municipalities and cities are composed of barangays. In place names barangay is sometimes abbreviated as "Brgy." or "Bgy.". As of December 31, 2006 there are a total of 41,995 barangays throughout the Philippines.

QUALIFICATIONS The local government code provides for the general qualifications of the elective officials it states: SEC. 39. Qualifications. a. An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. 58

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS b. Candidates for the position of governor, vice- governor or member of the sangguniang panlalawigan, or Mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. c. Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. d. Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. e. Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. f. Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day. Disqualifications: 1. Those sentence by final judgment for offenses involving moral turpitude or those punishable by one (1) year or more of imprisonment; 2. Those removed as a result of an administrative case; 3. Those convicted by final judgment by violating the oath of allegiance; 4. Dual citizens; 5. Fugitives from justice; 6. Those who have permanent residents in a foreign country; (Section 40 of the Local Government Code)

Province ViceGovernor Governor natural natural born born citizenship filipino filipino citizen citizen 23 years old on election day 23 years old on election day

City Mayor natural born filipino citizen 21 years old on election day ViceMayor natural born filipino citizen 21 years old on election day Captain natural born filipino citizen 18 years old on election day

Baranggay Councilors natural born filipino citizen 18 years old on election day SK natural born filipino citizen at least 15 y.o not more than 21 years old

age

59

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS resident resident resident resident resident resident of the of the of the of the of the of the resident of place place place place place place the place where he where he where he where he where he where he where he intends to intends to intends to intends to intends to intends to intends to run for at run for at run for at run for at run for at run for at run for at least 1 least 1 least 1 least 1 least 1 least 1 least 1 year year year year year year year preceding preceding preceding preceding preceding preceding preceding the day of the day the day the day the day the day the day election of of of of of of election election election election election election registered voter registered registered registered registered registered registered when 18 voter voter voter voter voter voter years old and above able to able to able to able to able to able to able to read and read and read and read and read and read and read and write write write write write write write

residence

suffrage

literacy

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE V ELECTION OF MEMBERS OF THE REGIONAL ASSEMBLY OF THE AUTONOMOUS REGIONS Section 31. The Sangguniang Pampook of the autonomous regions. - Region IX and Region XII in southern Philippines shall each have a Sangguniang Pampook to be composed of twenty-seven members and shall include seventeen representatives elected from the different provinces and cities of each region, and a sectoral representative each from among the youth, agricultural workers, and non-agricultural workers (industrial labor) of each region to be selected in the manner herein provided whose qualifications and disqualifications are the same as Members of the Batasang Pambansa. The President shall appoint an additional seven representatives in each region whenever in his judgment any other sector is not properly represented in the Sangguniang Pampook as a result of the elections. Section 32. Apportionment of members of the Sangguniang Pampook. - The Members of the Sangguniang Pampook of Region IX and of Region XII. Section 33. Election of members of Sangguniang Pampook. - The candidates for the position of seventeen representatives to the Sangguniang Pampook of Region IX and of Region XII shall be voted at large by the registered voters of each province including the cities concerned. The candidates corresponding to the number of member or members to be elected in a constituency who receive the highest number of votes shall be declared elected. Section 34. Selection of sectoral representatives. - The President shall, within thirty days from the convening of each Sangguniang Pampook, appoint the sectoral representatives on recommendation of the Sangguniang Pampook and after due consultation with the representative and generally recognized organizations or aggrupations of members of the youth, agricultural workers and non-agricultural workers as attested by the Ministers of Local Government and of Education, Culture and Sports (youth), Ministers of Agrarian Reform and of Agriculture and Food (agricultural workers), and Ministers of Labor and Employment (nonagricultural or industrial labor). The President of the Philippines shall in writing notify the Speaker of the Sangguniang Pampook of each region of the appointment made by him of any sectoral representative. 61

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The sectoral representatives shall have the same functions, responsibilities, rights, privileges, qualifications and disqualifications as the elective provincial representatives to the Sangguniang Pampook: Provided, however, that no defeated candidate for member of the Sangguniang Pampook in the immediately preceding election shall be appointed as sectoral representative. Section 35. Filling of vacancy. - Pending an election to fill a vacancy arising from any cause in the Sangguniang Pampook, the vacancy shall be filled by the President, upon recommendation of the Sangguniang Pampook: Provided, that the appointee shall come from the same province or sector of the member being replaced. Section 36. Term of office. - The present members of the Sangguniang Pampook of each of Region IX and Region XII shall continue in office until June 30, 1986 or until their successors shall have been elected and qualified or appointed and qualified in the case of sectoral members. They may not be removed or replaced except in accordance with the internal rules of said assembly or provisions of pertinent laws. The election of members of the Sangguniang Pampook of the two regions shall be held simultaneously with the local elections of 1986. Those elected in said elections shall have a term of four years starting June 30, 1986. Those elected in the election of 1990 to be held simultaneously with the elections of Members of the Batasang Pambansa shall have a term of six years.

DISCUSSIONS

Sections 31 to 36 of the Omnibus Election Code are repealed by the 1987 Constitution, specifically Sec. 15 to 21 of Article X, which provides: Article X (Local Government) Autonomous Regions Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines . 62

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. Section 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government from the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Section 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras . Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: 1. 2. 3. 4. 5. 6. 7. 8. 9. Administrative organization; Creation of sources of revenues; Ancestral domain and natural resources; Personal, family, and property relations; Regional urban and rural planning development; Economic, social, and tourism development; Educational policies; Preservation and development of the cultural heritage; and Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Section 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. 63

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The defense and security of the regions shall be the responsibility of the National Government. In connection to the above, Congress enacted Republic Act No. 6734 as the Organic Act for Autonomous Region in Muslim Mindanao. RA 6734 was further strengthened by the enactment of Republic Act No. 9054, which amended RA 6734.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE VI ELECTION OF LOCAL OFFICIALS Section 37. Regular election of barangay officials. - The election for barangay officials shall be held throughout the Philippines in the manner prescribed on the second Monday of May Nineteen hundred and eightyeight and on the same day every six years thereafter. The officials elected shall assume office on the thirtieth day of June next following the election and shall hold office for six years and until their successors shall have been elected and qualified.

DISCUSSIONS

First, we have to determine if an aspiring candidate for a barangay office is qualified or not. Qualifications for Punning Barangay, Member of the Sangguniang Barangay and Sangguniang Kabataan: a. A citizen of the Philippines; b. A registered voter; c. A resident in the barangay where he intends to run as candidate for at least one (1) year; d. Able to read and write Filipino or any other local language or dialect; e. Punning Barangay and Member of the Sangguniang Barangay must be at least eighteen (18) years of age on election day; f. Sangguniang Kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day Sec. 37 of the omnibus Election Code is repealed by the enactment of Republic Act 6679, which limits the term of barangay officials from six (6) years to five (5) years, who shall assume office on the first day of June, instead on the thirtieth under Section 37. No barangay official however, shall serve for more than three (3) consecutive terms. Section 38. Conduct of elections. - The barangay election shall be nonpartisan and shall be conducted in an expeditious and inexpensive manner.

65

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS No person who files a certificate of candidacy shall represent or allow himself to be represented as a candidate of any political party or any other organization; and no political party, political group, political committee, civic, religious, professional, or other organization or organized group of whatever nature shall intervene in his nomination or in the filing of his certificate of candidacy or give aid or support, directly or indirectly, material or otherwise favorable to or against his campaign for election: Provided, That this provision shall not apply to the members of the family of a candidate within the fourth civil degree of consanguinity or affinity nor to the personal campaign staff of the candidate which shall not be more than one for every one hundred registered voters in his barangay: Provided, however, That without prejudice to any liability that may be incurred, no permit to hold a public meeting shall be denied on the ground that the provisions of this paragraph may or will be violated. Nothing in this section, however, shall be construed as in any manner affecting or constituting an impairment of the freedom of individuals to support or oppose any candidate for any barangay office.

DISCUSSIONS

Sec. 38 provides for the rule that a candidate for barangay official shall not be affiliated or is a member of any political party, etc. nor shall a candidate receive any aid or support, material or otherwise for or against his campaign. The reason for the above provision is to promote fair and equal election and opportunity to assume office. JURISPRUDENCE Ocean vs. COMELEC G.R. No, L-60258, January 31, 1984 The Supreme Court, in sustaining the constitutionality of the non-partisan character of the barangay elections, held: x x we must not lose sight of the fact that the barangay is the basic unit not only of our social structure but also of our political structure. As much as possible, we believe that it would be a more prudent policy to insulate the barangays from the influence of partisan politics.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The provision, however, shall not apply to the family of a candidate within the fourth civil degree of consanguinity or affinity or to the personal campaign staff of the candidate which shall not be more than one for every one hundred registered voters in his barangay. Section 39. Certificate of Candidacy. - No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. The certificate of candidacy shall be filed with the secretary of the sangguniang barangay who shall have the ministerial duty to receive said certificate of candidacy and to immediately acknowledge receipt thereof. In case the secretary refuses to receive the same, or in the case of his absence or non-availability, a candidate may file his certificate with the election registrar of the city or municipality concerned. The secretary of the sangguniang barangay or the election registrar, as the case may be, shall prepare a consolidated list all the candidates and shall post said list in the barangay hall and in other conspicuous places in the barangay at least ten days before the election. Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

DISCUSSIONS

Procedure for filing of Certificate of Candidacy: 1. Filing with the Secretary of the Sangguniang Barangay or the Election Registrar of the City of Municipality concerned a certificate of candidacy, in triplicate form, stating the barangay office for which he is a candidate; 2. The CoC shall be filed any day after the commencement of the election period but not later than the day before the beginning of campaign period; 67

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. The Secretary of the Sangguniang Barangay shall prepare a list of all candidates and shall post the same in the barangay hall or other conspicuous place ten (10) days before election;

Section 40. Board of Election Tellers. - (1) The Commission shall constitute not later than ten days before the election a board of election tellers in every barangay polling place, to be composed of a public elementary school teacher as chairman, and two members who are registered voters of the polling place concerned, but who are not incumbent barangay officials nor related to any candidate for any position in that barangay within the fourth civil degree of affinity or consanguinity. In case no public elementary school teachers are available, the Commission shall designate any registered voter in the polling place who is not an incumbent barangay official nor related to any candidate for any position in that barangay within the fourth civil degree of affinity or consanguinity. (2) The board of election tellers shall supervise and conduct the election in their respective polling places, count the votes and thereafter prepare a report in triplicate on a form prescribed by the Commission. The original of this report shall be delivered immediately to the barangay board of canvassers. The second copy shall be delivered to the election registrar and the third copy shall be delivered to the secretary of the sangguniang barangay who shall keep the same on file. Section 41. Registration of voters and list of voters. - Not later than seven days before the election, the board of election tellers shall meet in every barangay polling place to conduct the registration of barangay voters and to prepare the list of voters. Any voter may challenge the qualification of any person seeking to register and said challenge shall be heard and decided on the same day by the board of election tellers. The final list of voters shall be posted in the polling places at least two days before election day. The registration of any voter shall not be transferred without written notice at least two days before the date of election. Not later than the day following the barangay election, the board of election tellers shall deliver the list of voters to the election registrar for custody and safekeeping. Section 42. Polling places. - (1) The chairman of the board of election tellers shall designate the public school or any other public building within the barangay to be used as polling place in case the barangay has one election precinct. (2) For barangays with two or more election precincts 68

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the chairman of the board of canvassers shall designate the public school or any other public building to be used as polling place. In case there is no public school or other public building that can be used as polling places, other appropriate private buildings may be designated: Provided, That such buildings are not owned or occupied or possessed by any incumbent elective public official or candidate, or his relative within the fourth civil degree of consanguinity or affinity. The polling place shall be centrally located as possible, always taking into consideration the convenience and safety of the voters.

DISCUSSIONS

Sections 40 to 42 provides for the composition of the Board of Election Tellers as well as its powers and functions.

Composition of the Board of Election Tellers Chairman Two members Any public elementary school teacher Any registered voter not a candidate, an incumbent barangay official or a relative of the latter with the fourth civil degree.

Powers and Functions of the Board of Election Tellers 1. To conduct the registration of barangay voters; 2. Upon complaint, to hear and decide cases relating to the qualification of a voter; 3. Posting of the final list of registered and delivery of a copy thereof the Election Registrar; 4. Designate any public school or any public building in the barangay as polling place or places, in case the barangay has more than one election precinct; 5. To act as the Barangay Board of Canvassers should the barangay have only one polling place; 6. Supervise and conduct the election in their respective polling places; 7. Counting of votes; 8. Authentication of the barangay ballots; 9. Prepare a vote report, in triplicate on a form; 10. Delivery of the report immediately to the: a. Original copy Barangay Board of Canvassers; 69

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS b. Second copy Election Registrar; c. Third copy Secretary of the Sangguniang Barangay

Section 43. Official barangay ballots. - The official barangay ballots shall be provided by the city or municipality concerned of a size and color to be prescribed by the Commission. Such official ballots shall, before they are handed to the voter at the polling place, be authenticated in the presence of the voter, by the authorized representatives of the candidates and the chairman and members of the board of election tellers who shall affix their signatures at the back thereof. Any ballot which is not authenticated shall be deemed spurious. Section 44. Ballot boxes. - The Commission shall provide the ballot boxes for each barangay polling place, but each candidate may be permitted to provide a padlock for said ballot box. Section 45. Postponement or failure of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission, upon a verified petition of an interested party and after due notice and hearing at which the interested parties are given equal opportunity to be heard, shall postpone the election therein for such time as it may deem necessary. If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the election in any barangay has not been held on the date herein fixed or has been suspended before the hour fixed by law for the closing of the voting therein and such failure or suspension of election would affect the result of the election, the Commission, on the basis of a verified petition of an interested party, and after due notice and hearing, at which the interested parties are given equal opportunity to be heard shall call for the holding or continuation of the election within thirty days after it shall have verified and found that the cause or causes for which the election has been postponed or suspended have ceased to exist or upon petition of at least thirty percent of the registered voters in the barangay concerned. When the conditions in these areas warrant, upon verification by the Commission, or upon petition of at least thirty percent of the registered voters in the barangay concerned, it shall order the holding of the barangay election which was postponed or suspended.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

Section 45 list down the grounds and the procedure for the postponement and or declaration of failure of election in barangay level.

Grounds for postponement/failure of election a. b. c. d. e. f. Procedure a. A verified petition is filed by any interested party before the COMELEC stating the grounds for the postponement; b. The COMELEC shall publish the said petition in a newspaper of general circulation or a local newspaper of the city or municipality concerned; c. If the petition is opposed, a hearing shall be conducted by COMELEC, giving both parties opportunity to be heard and present evidence; d. The COMELEC shall decide the case within thirty days after the case have been submitted for decision; After the caused for the postponement or suspension of the holding of the election had ceased to exist or upon petition of at least thirty percent (30%) of the registered voters in the barangay concerned, COMELEC shall resume the holding of the election within thirty day after verification that the cause for postponement or suspension has in fact ceased. Violence; Terrorism; Loss or destruction of election paraphernalia or records; Force majeure; Fraud; and Other analogous causes.

Section 46. Barangay board of canvassers. - (1) The Commission shall constitute a board of canvassers at least seven days before the election in each barangay, to be composed of the senior public elementary school teacher in the barangay as chairman, and two other public elementary school teachers, as members.

71

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS In case the number of public elementary school teachers is inadequate, the Commission shall designate the chairman and members of the barangay board of canvassers from among the board of election tellers. (2) The barangay board of canvassers shall meet immediately in a building where a polling place is found and which is most centrally located in the barangay and after canvassing the results from the various polling places within the barangay, proclaim the winners. The board of canvassers shall accomplish the certificate of proclamation in triplicate on a form to be prescribed by the Commission. The original of the certificate shall be sent to the election registrar concerned, the second copy shall be delivered to the secretary of the sangguniang bayan or sangguniang panlungsod, as the case may be, and the third copy shall be kept on file by the secretary of the sangguniang barangay. (3) In a barangay where there is only one polling place, the barangay board of election tellers shall also be the barangay board of canvassers.

DISCUSSIONS

Composition of the Barangay Board of Canvassers Chairman Two members A Senior public elementary school teacher Any public elementary school teacher

Functions of the Barangay Board of Canvassers: 1. Canvassing of votes; 2. Prepare a Certificate of Proclamation; 3. Deliver the said certificate to the: a. Original copy Election Registrar; b. Second copy Secretary of the Sangguniang Panlungsod or Sangguniang Bayan; c. Third copy Secretary of the Sangguniang Barangay

Section 47. Activities during the campaign period. - During the campaign period, the punong barangay if he is not a candidate, or any resident of the barangay designated by the Commission, shall convene the barangay assembly at least once for the purpose of allowing the candidates to appear at a joint meeting duly called, upon proper and with at least two 72

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS days notice, to explain to the barangay voters their respective program of administration, their qualifications, and other information that may help enlighten voters in casting their votes. The members of the barangay assembly may take up and discuss other matters relative to the election of barangay officials. Section 48. Watchers. - Candidates may appoint two watchers each, to serve alternately, in every polling place within the barangay, who shall be furnished with a signed copy of the results of the election, in such form as the Commission may prescribe, immediately after the completion of the canvass. Section 49. Inclusion and exclusion cases. - Inclusion and exclusion cases which shall be decided not later than seven before the date of the election shall be within the exclusive original jurisdiction of the municipal or metropolitan trial court. The notice of such decision shall be served to all parties within twenty-four hours following its promulgation and any party adversely affected may appeal therefrom within twenty-four hours to the regional trial court which shall finally decide the same not later than two days before the date of the election. Section 50. Funding. - Local governments shall appropriate such funds to defray such necessary and reasonable expenses of the members of the board of election tellers, board of canvassers and the printing of election forms and procurement of other election paraphernalia, and the installation of polling booths. Sec. 51. Penalties. - Violations of any provisions of this Article shall constitute prohibited acts and shall be prosecuted and penalized in accordance with the provisions of this Code.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE VII THE COMMISSION ON ELECTIONS Sec. 52. Powers and functions of the Commission on Elections. - In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall: (a) Exercise direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. In addition, it may authorize CMT cadets eighteen years of age and above to act as its deputies for the purpose of enforcing its orders. The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of his duties relating to electoral processes that violates the election law or fails to comply with its instructions, orders, decisions or rulings, and appoint his substitute. Upon recommendation of the Commission, the corresponding proper authority shall suspend or remove from office any or all of such officers or employees who may, after due process, be found guilty of such violation or failure. (b) During the period of the campaign and ending thirty days thereafter, when in any area of the country there are persons committing acts of terrorism to influence people to vote for or against any candidate or political party, the Commission shall have the power to authorize any member or members of the Armed Forces of the Philippines, the National Bureau of Investigation, the Integrated National Police or any similar agency or instrumentality of the government, except civilian home defense forces, to act as deputies for the purpose of ensuring the holding of free, orderly and honest elections. (c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer, and require the payment of legal fees and collect the same in payment of any business done in the Commission, at rates that it may provide and fix in its rules and regulations. Rules and regulations promulgated by the Commission to implement the provisions of this Code shall take effect on the sixteenth day after publication in the Official Gazette or in at least daily newspapers of general circulation. Orders and directives issued by the Commission pursuant to 74

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS said rules and regulations shall be furnished by personal delivery to accredited political parties within forty-eight hours of issuance and shall take effect immediately upon receipt. In case of conflict between rules, regulations, orders or directives of the Commission in the exercise of its constitutional powers and those issued by any other administrative office or agency of the government concerning the same matter relative to elections, the former shall prevail. (d) Summon the parties to a controversy pending before it, issue subpoena and subpoena duces tecum, and take testimony in any investigation or hearing before it, and delegate such power to any officer of the Commission who shall be a member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof of service of the subpoena to said witnesses, may issue a warrant to arrest witness and bring him before the Commission or the officer before whom his attendance is required. Any controversy submitted to the Commission shall, after compliance with the requirements of due process, be immediately heard and decided by it within sixty days from submission thereof. No decision or resolution shall be rendered by the Commission either en banc or by division unless taken up in a formal session properly convened for the purpose. The Commission may, when necessary, avail of the assistance of any national or local law enforcement agency and/or instrumentality of the government to execute under its direct and immediate supervision any of its final decisions, orders, instructions or rulings. (e) Punish contempt provided for in the Rules of Court in the same procedure and with the same penalties provided therein. Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt thereof. (f) Enforce and execute its decisions, directives, orders and instructions which shall have precedence over those emanating from any other authority, except the Supreme Court and those issued in habeas corpus proceedings. (g) Prescribe the forms to be used in the election, plebiscite or referendum. (h) Procure any supplies, equipment, materials or services needed for the holding of the election by public bidding: Provided, That, if it finds the requirements of public bidding impractical to observe, then by negotiations or sealed bids, and in both cases, the accredited parties shall be duly notified. 75

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (i) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. (j) Carry out a continuing and systematic campaign through newspapers of general circulation, radios and other media forms to educate the public and fully inform the electorate about election laws, procedures, decisions, and other matters relative to the work and duties of the Commission and the necessity of clean, free, orderly and honest electoral processes. (k) Enlist non-partisan group or organizations of citizens from the civic, youth, professional, educational, business or labor sectors known for their probity, impartiality and integrity with the membership and capability to undertake a coordinated operation and activity to assist it in the implementation of the provisions of this Code and the resolutions, orders and instructions of the Commission for the purpose of ensuring free, orderly and honest elections in any constituency. Such groups or organizations shall function under the direct and immediate control and supervision of the Commission and shall perform the following specific functions and duties: A. Before Election Day: 1. Undertake an information campaign on salient features of this Code and help in the dissemination of the orders, decisions and resolutions of the Commission relative to the forthcoming election. 2. Wage a registration drive in their respective areas so that all citizens of voting age, not otherwise disqualified by law may be registered. 3. Help cleanse the list of voters of illegal registrants, conduct house-to-house canvass if necessary, and take the appropriate legal steps towards this end. 4. Report to the Commission violations of the provisions of this Code on the conduct of the political campaign, election propaganda and electoral expenditures. B. On Election Day: 1. Exhort all registered voters in their respective areas to go to their polling places and cast their votes. 76

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 2. Nominate one watcher for accreditation in each polling place and each place of canvass who shall have the same duties, functions and rights as the other watchers of political parties and candidates. Members or units of any citizen group or organization so designated by the Commission except its lone duly accredited watcher, shall not be allowed to enter any polling place except to vote, and shall, if they so desire, stay in an area at least fifty meters away from the polling place. 3. Report to the peace authorities and other appropriate agencies all instances of terrorism, intimidation of voters, and other similar attempts to frustrate the free and orderly casting of votes. 4. Perform such other functions as may be entrusted to such group or organization by the Commission. The designation of any group or organization made in accordance herewith may be revoked by the Commission upon notice and hearing whenever by its actuations such group or organization has shown partiality to any political party or candidate, or has performed acts in excess or in contravention of the functions and duties herein provided and such others which may be granted by the Commission. (l) Conduct hearings on controversies pending before it in the cities or provinces upon proper motion of any party, taking into consideration the materiality and number of witnesses to be presented, the situation prevailing in the area and the fund available for the purpose. (m) Fix other reasonable periods for certain pre-election requirements in order that voters shall not be deprived of their right of suffrage and certain groups of rights granted them in this Code. Unless indicated in this Code, the Commission is hereby authorized for fix the appropriate period for the various prohibited acts enumerated herein, consistent with the requirements of free, orderly, and honest elections. Sec. 53. Field offices of the Commission. - The Commission shall have the following field offices: 1. Regional Election Office, headed by the Regional Election Director and assisted by the Assistant Regional Director and such other subordinate officers or employees as the Commission may appoint. 2. Provincial Election Office, headed by the Provincial Election Supervisor and assisted by such other subordinate officers or employees as the Commission may appoint. 77

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. City/Municipal Election Office, headed by the City/Municipal Registrar who shall be assisted by an election clerk and such other employees as the Commission may appoint. The Commission may delegate its powers and functions or order the implementation or enforcement of its orders, rulings, or decisions through the heads of its field offices. Sec. 54. Qualifications. - Only members of the Philippines Bar shall be eligible for appointment to the position of regional director, assistant regional director, provincial election supervisor and election registrar: Provided, however, That if there are no members of the Philippine Bar available for appointment as election registrar, except in cities and capital towns, graduates of duly recognized schools of law, liberal arts, education or business administration who possess the appropriate civil service eligibility may be appointed to said position. Sec. 55. Office space. - The local government concerned shall provide a suitable place for the office of the provincial election supervisor and his staff and the election registrar and his staff: Provided, That in case of failure of the local government concerned to provide such suitable place, the provincial election supervisor or the election registrar, as the case may be, upon prior authority of the Commission and notice to the local government concerned, may lease another place for office and the rentals thereof shall be chargeable to the funds of the local government concerned. Sec. 56. Changes in the composition, distribution or assignment of field offices. - The Commission may make changes in the composition, distribution and assignment of field offices, as well as its personnel, whenever the exigencies of the service and the interest of free, orderly, and honest election so require: Provided, That such changes shall be effective and enforceable only for the duration of the election period concerned and shall not affect the tenure of office of the incumbents of positions affected and shall not constitute a demotion, either in rank or salary, nor result in change of status: and Provided, further, That there shall be no changes in the composition, distribution or assignment within thirty days before election, except for cause and after due notice and hearing, and that in no case shall a regional or assistant regional director be assigned to a region; a provincial election supervisor to a province; or a city or municipal election registrar to a city or municipality, where he and/or his spouse are related to any candidate within the fourth civil degree of consanguinity or affinity as the case may be. Sec. 57. Measures to ensure enforcement. - For the effective enforcement of the provisions of this Code, the Commission is further vested and charged with the following powers, duties and responsibilities: 78

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 1. To issue search warrants after examination under oath or affirmation of the complainant and the witnesses 2. To stop any illegal election activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. 3. To inquire into the financial records of candidates and any organization or group of persons, motu proprio or upon written representation for probable cause by any candidate or group of persons or qualified voter, after due notice and hearing. For purposes of this section, the Commission may avail itself of the assistance of the Commission on Audit, the Central Bank, the National Bureau of Investigation, the Bureau of Internal Revenue, the Armed Forces of the Philippines, the Integrated National Police of the Philippines, barangay officials, and other agencies of the government. Sec. 58. Disqualifications of members of the Commission. - The chairman and members of the Commission shall be subject to the canons of judicial ethics in the discharge of their functions. No chairman or commissioner shall sit in any case in which he has manifested bias or prejudice for or against or antagonism against any party thereto and in connection therewith, or in any case in which he would be disqualified under the Rules of Court. If it be claimed that the chairman or a commissioner is disqualified as above provided, the party objecting to his competency may file his objection in writing with the Commission stating the ground therefor. The official concerned shall continue to participate in the hearing or withdrawn therefrom in accordance with his determination of the question of his disqualification. The decision shall forthwith be made in writing and filed with the other papers of the case in accordance with the Rules of Court. If a disqualification should result in a lack of quorum in the Commission sitting en banc, the Presiding Justice of the Intermediate Appellate Court shall designate a justice of said court to sit in said case for the purpose of hearing and reaching a decision thereon. Sec. 59. Publication of official ballots and election returns and printing thereof. - The Commission shall publish at least ten days before an election in a newspaper of general circulation certified data on the number of official ballots and election returns and the names and addresses of the printers and the number printed by each.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS JURISDICTION General Rule: The COMELEC sitting en banc does NOT have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission: Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void. (Abad v. COMELEC, GR No. 128877, December 10, 1999) Exceptions: 1. When what is involved in the case is purely administrative, and not quasi-judicial in nature. 2. When the required number of votes to reach a decision, resolution, order or ruling is not obtained in the division. (Garvida v. Sales, Jr. GR No. 124893, April 18, 1997); 3. Where the petitioner invoked the jurisdiction of the COMELEC en banc, participated in its proceedings and sought relief therefrom, in which instance he is stopped to subsequently question the jurisdiction of the COMELEC en banc. (Ramirez v. COMELEC, GR No. 122013, March 26, 1998). 4. Petitichs for the postponement, declaration of failure of election and the calling of special elections (Loong v. COMELEC, GR 133676, April 14, 1999); and 5. The COMELEC en banc has the power to porsecute election cases, and in the exercise of such prosecutor power, it conducts preliminary investigation, decides whether or not there exists a probable cause and files the corresponding information in court. (Faelinar v. People, GR Nos. 140850-51, May 4, 2000). POWERS AND FUNCTIONS 1. 2. 3. 4. 5. 6. 7. 8. Enforcement and Administration of Election Laws and Regulations. Power to ensure free, honest, orderly credible, and peaceful elections. Rule Making Power. Quasi-Legislative Functions Quasi-Judicial Power Contempt and Subpoena Auxiliary writs and processes Specific Powers a. Power to declare failure of elections In the case of Dibratun v. Comelec (G.R. No. 179365, February 2, 2010), it was held that 2 conditions must concur before the COMELEC can act on a petition seeking to declare a failure of elections: 80

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS No voting took place in the precinct or precincts on the date fixed by law; or even if there by law; or even if there was voting, the election resulted in failure to elect; and ii. The votes not cast would have affected the result of the elections. iii. The cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud, or other analogous cases. b. Power to call for special elections In fixing the date for special elections, the Comelec should see to it that: i. It should not be later than 30 days after the cessation of the cause of the postponement of suspension of the election or failure to elect; and ii. It should be reasonably close to the date of the election not held or suspended or which resulted in the failure to elect. (Pangandaman v. Comelec G.R. No. 134340, November 25, 1999) c. Power to postpone elections d. Power to correct manifest errors on election documents With the introduction to the PCOS System Pursuant to R.A. 9369, every copy should be as good and as clear as the first one. Hence, the problem of manifest errors might be a thing in the past. [R. Avila Fundamentals of Election Law p. 59 (2010)]. e. Power to order recanvass of votes f. Power to annul or suspend proclamation of elected candidates g. Power to annul an illegal canvas h. Power to transfer polling places i. Power to Transfer Venue of Canvassing of Votes j. Power to order opening of ballot boxes k. Power to conduct initiative and plebiscite 9. Other Specific Powers a. Deputization of Peace Officers b. Investigatory and Prosecutional Power c. Deputization of on Endorsement to Prosecutors 10. Power of exclusive control and supervision over the Automated Election System (Sec. 26, RA 8436) In the case of Roque v. Comelec (G.R. No. 188456, September 10, 2009), the SC held that the COMELEC did not abdicate its mandate and responsibility under Sec. 26 of RA 8436. With the view the SC takes of the automation of the automation contract, the role of Smartmatic TIM Corporation is basically to supply the goods necessary for the automation projecxt, such as but not limites to the PCOS machines, PCs, electronic transmission devices and related equipment and the like. As 81 i.

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS lessees of the goods and the back-up equipment, the corporation and its operators would provide assistance with respect to the machines to be used by the COMELEC which at the end of the day, will be conducting the election thru its personnel and whoever it deputizes. The COMELEC should be afforded ample elbow room and enough wherewithal in devising means and initiatives that would enable it to accomplish the great objective for which it was created to promote free, orderly, honest and peaceful elections. Giving to the Provider (Smartmatic TIM) the access keys both the private and public access keys is like giving to the system administrator of Yahoo or Hotmail ones private password to his or her email account. The private key is supposed to be private to the Chair of the Board of Election Inspectors, generated by him and unknown to the Provider. Otherwise the Provider will have the capacity to alter the election results at the precinct level. Worse, even the private keys at the canvassing level are generated by the Provider, allowing the provider to change the election results at the canvassing level. Clearly, the COMELEC has abdicated control over the elections to the Provider; putting the integrity and outcome of the 10 May 2010 elections solely in the hands of the Provider (Roque v. Comelec G.R. No. 188456, September 10, 2009, Justice Carpio dissenting) Stand-by Power of COMELEC: If it shall no longer be reasonably possible to observe the periods and dates prescribed by law for certain preelection acts, the Commission shall fix other periods and dates in order to ensure accomplishment of the activities so voters shall not be deprived of their suffrage (Sec. 28, R.A. 8436 & Sec. 29 of R.A. 6646, adopted pursuant to Sec. 9, Art. IX-C of the 1987 Constitution. This stand-by power, however, does not apply to fixing the date of registration of votes because Sec. 8 of R.A. 3189 which provides for a continuing registration of voters, specifically states that: No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. Powers NOT Granted to the COMELEC 1. No power to decide questions involving the right to vote. 2. No power to include and exclude voters Currently, jurisdiction to decide controversies on inclusion or exclusion of voters belongs to the Municipal Trial Court.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

BEDOL vs. COMELEC G.R. No. 179830, December 3, 2009 The main thrust of petitioners argument is that the COMELEC exceeded its jurisdiction in initiating the contempt proceedings when it was performing its administrative and not its quasi-judicial functions as the National Board of Canvassers for the election of senators. According to petitioner, the COMELEC may only punish contemptuous acts while exercising its quasi-judicial functions. The COMELEC, through the Task Force Maguindanao, was exercising its quasijudicial power in pursuit of the truth behind the allegations of massive fraud during the elections in Maguindanao. To achieve its objective, the Task Force conducted hearings and required the attendance of the parties concerned and their counsels to give them the opportunity to argue and support their respective positions. To withhold from the COMELEC the power to punish individuals who refuse to appear during a fact-finding investigation, despite a previous notice and order to attend, would render nugatory the COMELECs investigative power, which is an essential incident to its constitutional mandate to secure the conduct of honest and credible elections. In this case, the purpose of the investigation was however derailed when petitioner obstinately refused to appear during said hearings and to answer questions regarding the various election documents which, he claimed, were stolen while they were in his possession and custody. Undoubtedly, the COMELEC could punish petitioner for such contumacious refusal to attend the Task Force hearings. PANLILIO vs. COMELEC and PINEDA G.R. No. 181478, July 15, 2009 Since the COMELECs Division issued the interlocutory Order, the same COMELEC Division should resolve the motion for reconsideration of the Order. The remedy of the aggrieved party is neither to file a motion for reconsideration for certification to the COMELEC En Banc nor to elevate the issue to this Court via a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Section 3, Article IX-C of the 1987 Constitution mandates that only motions for reconsideration of final decisions shall be decided by the COMELEC en banc. It is clear from the foregoing constitutional provision that the COMELEC en banc shall decide motions for reconsideration only of decisions of a Division, meaning those acts having a final character. Here, the assailed Second Division order did not completely dispose of the case, as there was something more to be done, which was to decide the election protest. Being 83

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS interlocutory, the assailed Second Division orders may not be resolved by the COMELEC en banc. Under Section 2(2), Article IX-C of the 1987 Constitution, the COMELEC exercises exclusive original jurisdiction over all contests relating to the elections of all elective regional, provincial, and city officials. Since the COMELEC has jurisdiction over petitioners election protest, it has the authority to issue the assailed Orders. BAI SANDRA S.A. SEMA vs. COMELEC G.R. No. 177597, July 16, 2008 It was held that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended to the Constitution. CERBO, JR. vs. COMELEC G.R. No. 168411, February 15, 2007 With respect to petitioner Cerbo who ran for the position of congressman, the COMELEC indeed had no jurisdiction over his petition, his opponent respondent Suharto T. Mangudadatu having been proclaimed as such. It is well settled that once a candidate is proclaimed as representative, the opponents recourse is to file an election protest with the House of Representatives Electoral Tribunal which has the sole and exclusive jurisdiction over all contests relative to the election, returns and qualifications of members of the House of Representatives, and this holds true even if there is an allegation of nullity of proclamation. OLANOLAN vs. COMELEC G.R. No. 165491, March 31, 2005 The COMELEC en banc, in issuing its assailed Order dated September 8, 2004, did no more than follow its own rules issued pursuant to no less than to its constitutional mandate to promulgate its rules of procedure to expedite disposition of election cases as well as to issue its own rules concerning pleadings and practice before it or before any of its offices. The rules on payment of legal fees and submission of pleadings are embodied in the COMELEC Rules of Procedure, specifically Section 7(f) of Rule 40 and Section 1, Rule 7, thereof.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS BAGATSING vs. COMELEC 320 SCRA 220 A complaint for disqualification filed before the election must be inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Second paragraph of paragraph 2 of Resolution No. 2050 provides that where a complaint is filed after the elections but before proclamation, as in this case, the complaint must be dismissed as a disqualified case but shall be referred to the Law Department for preliminary investigation. Mere pendency of a disqualification case against a candidate, and a winning candidate at that does not justify the suspension of his proclamation after winning in the election.

MOHAMMAD vs. COMELEC 320 SCRA 258 Court has already sanctioned the method of technical examination of the thumbprints of voters, over revision of ballots, where a recount or revision of the ballots will not be reflective of the sovereign will due to the irregularities committed during the elections. COMELEC was justified in ordering a technical examination of the thumbprints of the voters based on the voters affidavits and the Computerized Voters List. Factual findings of the COMELEC based on its own assessments and duly supported by evidence, are conclusive upon the Supreme Court, more so, in the absence of a substantiated attack on the validity of the same.

RELAMPAGOS vs. CUMBA 243 SCRA 690 The authority to issue writs of certiorari, prohibition and mandamus involves the exercise of original jurisdiction which has always been expressly conferred either by the Constitution or by law. In Garcia and Uy, and later in Veloria, the Supreme Court ruled that the COMELEC has no jurisdiction over the extraordinary writs of certiorari, prohibition and mandamus because there is no specific constitutional or statutory conferment to it of such jurisdiction. 85

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction. COMELEC correctly set aside the challenged order granting the motion for execution pending appeal and writ of execution issued by the trial court.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE VIII POLITICAL PARTIES Sec. 60. Political party. - "Political party" or "party", when used in this Act, means an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches and divisions. To acquire juridical personality, quality it for subsequent accreditation, and to entitle it to the rights and privileges herein granted to political parties, a political party shall first be duly registered with the Commission. Any registered political party that, singly or in coalition with others, fails to obtain at least ten percent of the votes cast in the constituency in which it nominated and supported a candidate or candidates in the election next following its registration shall, after notice and hearing be deemed to have forfeited such status as a registered political party in such constituency. Sec. 61. Registration. - Any organized group of persons seeking registration as a national or regional political party may file with the Commission a verified petition attaching thereto its constitution and bylaws, platform or program of government and such other relevant information as may be required by the Commission. The Commission shall, after due notice and hearing, resolve the petition within ten days from the date it is submitted for decision. No religious sect shall be registered as a political party and no political party which seeks to achieve its goal through violence shall be entitled to accreditation. Sec. 62. Publication of petition for registration or accreditation. - The Commission shall require publication of the petition for registration or accreditation in at least three newspapers of general circulation and shall, after due notice and hearing, resolve the petition within fifteen days from the date it is submitted for decision.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE IX ELIGIBILITY OF CANDIDATES AND CERTIFICATE OF CANDIDACY

Sec. 63. Qualifications for President and Vice-President of the Philippines. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of election, and a resident of the Philippines for at least ten years immediately preceding such election. Sec. 64. Qualifications for Members of the Batasang Pambansa. - No person shall be elected Member of the Batasang Pambansa as provincial, city or district representative unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, a registered voter in the constituency in which he shall be elected, and a resident thereof for a period of not less than six months immediately preceding the day of the election. A sectoral representative shall be a natural-born citizen of the Philippines, able to read and write, a resident of the Philippines, able to read and write, a resident of the Philippines for a period of not less than one year immediately preceding the day of the election, a bona fide member of the sector he seeks to represent, and in the case of a representative of the agricultural or industrial labor sector, shall be a registered voter, and on the day of the election is at least twenty-five years of age. The youth sectoral representative should at least be eighteen and not be more than twenty-five years of age on the day of the election: Provided, however, that any youth sectoral representative who attains the age of twenty-five years during his term shall be entitled to continue in office until the expiration of his term.

JURISPRUDENCE DOMINO vs. COMELEC 310 SCRA 546 It is doctrinally settled that the term residence, as used in the law prescribing the qualifications for suffrage and for elective office, means the same thing as domicile, which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS A persons domicile once established is considered to continue and will not be deemed lost until a new one is established. While residence simply requires bodily presence in a given place, domicile requires not only such bodily presence in that place but also a declared and probable intent to make it ones fixed and permanent place of abode, ones home. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor does the fact of physical presence without intention. The lease contract may be indicative of a persons intention to reside in a particular locality but it does not engender the kind of permanency required to prove abandonment of ones original domicile. While voting is not conclusive of residence, it does give rise to a strong presumption of residence exercising the right of election franchise is a deliberate public assertion of the fact of residence, and is said to have decided preponderance is a doubtful case upon the place the elector claims as, or believes to be, his residence. It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, in such case, the electors have failed to make a choice and the election is a nullity. When the Constitution speaks of residence, the word should be understood, consistent with Webster, to mean actual, physical and personal presence in the district that a candidate seeks to represent. The original concept of domicile, which arose from American jurisprudence, was not intended to govern political rights, it was designed to resolve the conflict of laws between or among states where a decedent may have lived for various reasons, for the purpose of determining which law was applicable as regards his estate. Applying the concept of domicile in determining residence as a qualification for an elective office would negate the objective behind the residence requirement of one year (or six months, in the case of local positions). 89

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ROMUALDEZ-MARCOS vs. COMELEC 248 SCRA 300 Residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. View that it is not the mere fact of marriage but the deliberate choice of a different domicile by the husband that will change the domicile of a wife from what it was prior to their marriage. Domicile includes the twin elements of the fact of residing or physical presence in a fixed place and animus manendi, or the intention of returning there permanently. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. When the Constitution speaks of residence in election law, it actually means domicile. It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the Constitutions residency qualification requirement. The honest mistake in the certificate of candidacy regarding the period of residency does not negate the fact of residence in a congressional district if such fact is established by means more convincing than a mere entry on a piece of paper An individual does not lose his domicile even if he has lived and maintained residences in different places. A minor follows the domicile of his parents. To successfully effect a change of domicile, one must demonstrate: 1. An actual removal or an actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and establishing a new one; and 3. Acts which correspond with the purpose.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Abandonment requires the voluntary act of relinquishing former domicile with intent to supplant the former domicile with one of her own choosing (domicilium voluntarium). The presumption that the wife automatically gains the husbands domicile by operation of law upon marriage cannot be inferred from the use of the term residence in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. A survey of jurisprudence yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husbands choice of residence upon marriage. It is illogical to conclude that Article 110 of the Civil Code refers to domicile and not to residence. What petitioner gained upon marriage was actual residence but she did not lose her domicile of origin. The common law concept of matrimonial domicile appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. The term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory.

AQUINO vs. COMELEC 248 SCRA 400 The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in which he seeks election for a period of not less than on (1) year prior to the elections. Clearly, the place where a party actually or constructively has his permanent home, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purpose of election law. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those 91

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. The absence of clear and positive proof showing a successful abandonment of domicile under the conditions in the instant case sentimental, actual or otherwise with the area, and the suspicious circumstances under which a lease agreement was effected all belie petitioners claim of residency for the period required by the Constitution.

Sec. 65. Qualifications of elective local officials. - The qualifications for elective provincial, city, municipal and barangay officials shall be those provided for in the Local Government Code. JURISPRUDENCE

ALDOVINO, Jr., et al. vs. COMELEC and ASILO G.R. No. 184836, December 23, 2009 The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officers term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. The preventive suspension of an elected public official does not interrupt of his term of office for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160. To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary some of them personal and some of them by operation of law that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service for a 92

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the threeterm limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is.

PUNDAODAYA vs. COMELEC, et al. G.R. No. 179313, September 17, 2009 In Japzon v. Commission on Elections (G.R. No. 180088, January 19, 2009), it was held that the term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). In Domino v. Commission on Elections, the Court explained that domicile denotes a fixed permanent residence to which, whenever absent for business, pleasure, or some other reasons, one intends to return. It is a question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time. If one wishes to successfully effect a change of domicile, he must demonstrate 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 definite acts which correspond with the purpose. Without clear and positive proof of the concurrence of these three requirements, the domicile of origin continues.

LIMBONA vs. COMELEC G.R. No. 181097, June 25, 2008 The Comelec correctly found that petitioner failed to satisfy the one-year residency requirement. The term "residence" as used in the election law is synonymous with "domicile," which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. The manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. 93

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS For purposes of election law, the question of residence is mainly one of intention. There is no hard and fast rule by which to determine where a person actually resides. Three rules are, however, well established: first, that a man must have a residence or domicile somewhere; second, that where once established it remains until a new one is acquired; and third, a man can have but one domicile at a time. In order to acquire a domicile by choice, there must be (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. A persons "domicile" once established is considered to continue and will not be deemed lost until a new one is established. To successfully effect a change of domicile one must demonstrate 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 definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. PAPANDAYAN, JR. v. COMELEC and BALT G.R. No. 147909, April 16, 2002 FACTS: In the 2001 elections, three candidates ran for the position of mayor of Tubaran, Lanao del Sur: Papandayan, Jr., Balt, and Bantuas. Balt, the incumbent mayor seeking re-election, sought the disqualification of Papandayan, Jr., alleging that he was not a resident of Tangcal, Tubaran, Lanao del Sur but a permanent resident of Bayang, Lanao del Sur. On May 8, 2001, the COMELEC (Second Division) issued a resolution. It declared Papandayan, Jr. to be disqualified and ordered his name to be stricken off the list of candidates and all votes cast in his favor not to be counted but considered as stray votes. It ruled that it was the fact of Papandayans residence, not the statement in his certificate of candidacy, which determined whether or not he had satisfied the residency requirement of one (1) year preceding the May 14, 2001 elections. In finding that Papandayan, Jr. never intended to relinquish his former domicile in Bayang, the COMELEC took note of the testimony of petitioner in the exclusion proceedings against him before the municipal trial, in which he stated that he was living in Marawi City where he was the private secretary of Mayor Abdillah Ampatua. On May 15, 2001, Papandayan, Jr. received a telegram from the COMELEC notifying him of the resolution of the COMELEC en banc dated May 12, 2001, of the COMELEC which denied his motion for reconsideration. On May 17, 2001, he filed the present petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction. Meanwhile, on May 19, he filed a petition with the COMELEC seeking the 94

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS issuance of an order directing the Board of Election Inspectors (BEI) of Tubaran to count and tally the ballots cast in his favor. On the other hand, Balt filed a pre-proclamation case in the COMELEC. On May 29, 2001, the COMELEC issued an order suspending the proclamation of Papandayan, Jr. as the duly elected mayor of Tubaran pending the resolution of this present petition. However, despite the said order, the Municipal Board of Canvassers of Tubaran proceeded with the proclamation. Upon motion of Balt, the COMELEC issued an order setting aside the proclamation of Papandayan, Jr., without prejudice to the filing of the appropriate charges against the members of the Board responsible for the proclamation. Thereafter, the COMELEC en banc issued a resolution, sustaining the annulment of the proclamation of Papandayan, Jr. As a consequence thereof, the incumbent Vice-Mayor of Tubaran assumed the position of mayor pursuant to the COMELEC en banc resolution. On May 22, 2001, the Supreme Court required the COMELEC and Balt to comment on the petition and, upon the posting of a bond by Papandayan, Jr. in the amount of P10,000.00, it issued a temporary restraining order enjoining the COMELEC from implementing its resolutions of May 8 and May 12, 2001. ISSUES: 1. Whether or not the petition for certiorari filed by Papandayan, Jr. should be granted; 2. Whether or not the COMELEC acted with grave abuse of discretion in declaring Papandayan, Jr. disqualified on the ground that he is not a resident of Tuburan. RULING: 1. Yes. The petition should be granted. At the time the elections were held in May 14, 2001, the resolution, dated May 12, 2001, had not become final and executory. Hence, the Board of Election Inspectors (BEI) was duty bound to tally and count the votes cast in favor of petitioner. 2. Yes. With due regard for the expertise of the COMELEC, the SC found the evidence to be insufficient to sustain its resolution. Papandayan, Jr. has duly proven that, although he was formerly a resident of the Municipality of Bayang, he later transferred residence to Tangcal in the Municipality of Tubaran as shown by his actual and physical presence therein for 10 years prior to the May 14, 2001 elections. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart there from. As it was held in Romualdez v. RTC, Br. 7, Tacloban City, "domicile" and "residence" are synonymous. The term "residence," as used in the election 95

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. The Court explained that in order to acquire a new domicile by choice, the following must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. The record shows that when Papandayan, Jr. and his wife got married in 1990, they resided in Tangcal, Tubaran. From then on, there was manifest intention on his part reside in Tubaran, which he deemed to be the place of his conjugal abode with his wife. The fact that he and his wife transferred residence from Bayang to Tubaran shows that he was relinquishing his former place of residence in Bayang and that he intended Tubaran to be his place of domicile. Although he worked as a private secretary of the mayor of Bayang, he went home to Tubaran every day after work. This is proof of animus manendi. Further, the evidence shows that in the May 11, 1998 election, he was registered as a voter in Tubaran and that in fact he filed his certificate of candidacy although he later withdrew the same. In the May 8, 1999 registration of voters, he was again registered as a voter in Precinct No. 28-A of Barangay Tangcal in Tubaran. LONZANIDA vs. COMELEC 311 SCRA 602 Conditions for the application of the disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms. Proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. 96

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The proclamation or the assumption to the office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits. MERCADO vs. MANZANO G.R. No. 135083. May 26, 1999 FACTS: Petitioner Ernesto Mercado and Private respondent Eduardo Manzano are candidates for the position of Vice-Mayor of Makati City in the May, 1998 elections. Private respondent was the winner of the said election but the proclamation was suspended due to the petition of Ernesto Mamaril regarding the citizenship of private respondent. Mamaril alleged that the private respondent is not a citizen of the Philippines but of the United States. COMELEC granted the petition and disqualified the private respondent for being a dual citizen, pursuant to the Local Government code that provides that persons who possess dual citizenship are disqualified from running any public position. Private respondent filed a motion for reconsideration which remained pending until after election. Petitioner sought to intervene in the case for disqualification. COMELEC reversed the decision and declared private respondent qualified to run for the position. Pursuant to the ruling of the COMELEC, the board of canvassers proclaimed private respondent as vice mayor. This petition sought the reversal of the resolution of the COMELEC and to declare the private respondent disqualified to hold the office of the vice mayor of Makati ISSUE: Whether or Not private respondent is qualified to hold office as ViceMayor. RULING: Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Private respondent is considered as a dual citizen because he is born of Filipino parents but was born in San Francisco, USA. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. Dual allegiance, on the other concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the 97

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippine, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist ,and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. Sec. 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. JURISPRUDENCE

QUINTO and TOLENTINO, Jr. vs. COMELEC G.R. No. 189698, December 1, 2009 In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment. 98

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

Sec. 67. Candidates holding elective office. - Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

JURISPRUDENCE

AGUINALDO v. COMELEC 308 SCRA 770 Section 67 of the Omnibus Election Code was crafted with the intention of giving flesh to the constitutional pronouncement that public service is a public trust. The situation that results with the application of Section 67 is covered by the term "voluntary renunciation".

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

RENALD F. VILANDO VS HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL G.R NOS: 192147 & 192149, August 23, 2011 An attack on a person's citizenship may only be done through a direct action for its nullity. The proper proceeding to assail the citizenship of Limkaichongs father should be in accordance with Section 18 of Commonwealth Act No. 473. Such power of the HRET, no matter how complete and exclusive, does not carry with it the authority to delve into the legality of the judgment of naturalization in the pursuit of disqualifying Limkaichong. To rule otherwise would operate as a collateral attack on the citizenship of the father which, as already stated, is not permissible. The only instance where this Court may intervene in the exercise of its so-called extraordinary jurisdiction is upon a determination that the decision or resolution of the HRET was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of such arbitrary and improvident use of its power to constitute a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy for such abuse. AMORA vs COMELEC G.R. No. 192280, January 25, 2011 Facts: On December 1, 2009, petitioner Sergio G. Amora, Jr. filed his Certificate of Candidacy for Mayor of Candijay, Bohol. To oppose Amora, the Nationalist Peoples Coalition fielded Trygve L. Olaivar for the mayoralty post. Respondent Arnielo S. Olandria was one of the candidates for councilor of the NPC in the same municipality. On March 5, 2010, Olandria filed before the COMELEC a Petition for Disqualification against Amora. Olandria alleged that Amoras COC was not properly sworn contrary to the requirements of the Omnibus Election Code (OEC) and the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora merely presented his Community Tax Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of presenting competent evidence of his identity. Consequently, Amoras COC had no force and effect and should be considered as not filed. 100

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Atty. Granada counters that while he normally requires the affiant to show competent evidence of identity, in Amoras case, however, he accepted Amoras CTC since he personally knows him. Amora was victorious in the local elections. A week later, COMELEC en banc granted Olandrias petition. Thus, this case. Issue: Whether or not petitioner should be disqualified by presenting his community tax certificate as competent evidence of identity in executing his COC. Held: No. An improperly sworn COC is not equivalent to possession of a ground for disqualification. Neither OEC and LGC provides for such nor can the courts infer this as an additional ground for disqualification. Laws prescribing qualifications for and disqualifications from office are liberally construed in favor of eligibility. Competent evidence of identity is not required in cases where the affiant is personally known to the Notary Public, which is the case herein. The purpose of election laws is to give effect to, rather than frustrate, the will of the voters. DISCUSSIONS

DISQUALIFICATIONS: 1. Those declared by final decision or found by the Commission to have: a. given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions. b. committed acts of terrorism to enhance his candidacy. c. spent in his election campaign an amount in excess of that allowed by this Code d. solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104: Sec. 89 Sec. 95 Sec. 96 Transportation, food and drinks Enumerates the list of prohibited contributions Soliciting or receiving contributions from foreign 101

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS sources Prohibited raising of funds Prohibited donations by candidates, treasurers of parties or their agents.

Sec. 97 Sec. 104

e. violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office: Sec. 80 Sec. 83 Sec. 85 Sec. 86 Sec 261 (d) Sec 261 (e) Sec 261 (k) Sec 261 (v) Sec. 261(cc) subparagraph 6 Election campaign or partisan political activity outside campaign period Removal, destruction or defacement of lawful election propaganda prohibited Enumerates prohibited forms of election propaganda Regulation of election propaganda through mass media Coercion of subordinates Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion Unlawful electioneering Prohibition against release, disbursement or expenditure of public funds Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof

2. Candidates who are permanent resident or Immigrant of a foreign country. To qualify to run for an elective office, they should waive their status as a permanent resident or immigrant of the foreign country.

JURISPRUDENCE

MAQUILING vs COMELEC G.R. No. 195649, July 02, 2013 Anyone who seeks to run for public office must be solely and exclusively a Filipino citizen. The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to 102

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS what he has sworn to. only those who are exclusively Filipinos are qualified to run for public office.

GONZALES vs. COMELEC G.R. 192856, March 8, 2011 Cancellation of Certificate of Candidacy. The prohibited acts covered by Section 68 refer to election campaign or political activity outside the campaign period (Section 80); removal, destruction or defacement of lawful election propaganda (Section 83); certain forms of election propaganda (Section 85); violation of rules and regulations on election propaganda through mass media; coercion of subordinates (Section 261 [d]); threats, intimidation, terrorism, use of fraudulent device or other forms of coercion (Section 261 [e]); unlawful electioneering (Section 261 [k]); release, disbursement or expenditure of public funds (Section 261 [v]); solicitation of votes or undertaking any propaganda on the day of the election (Section 261 [cc], sub-par.6).

PANLAQUI vs. COMELEC and VELASCO G.R. No. 188671, February 24, 2010 On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a false representation of a material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a material fact or those that refer to a candidates qualifications for elective office. Apart from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible or, otherwise stated, with the intention to deceive the electorate as to the would-be candidates qualifications for public office. In Velasco, the Court rejected Velascos contention that the Comelec improperly ruled on the right to vote when it cancelled his COC. The Court stated that the Comelec merely relied on or recognized the RTCs final and executory decision on the matter of the right to vote in the precinct within its territorial jurisdiction. In the present petition, it is Panlaquis turn to proffer the novel interpretation that the RTC properly cancelled Velascos COC when it ruled on his right to vote. The Court rejects the same. It is not within the province of the RTC in a voters inclusion/exclusion proceedings to take cognizance of and determine the presence of a false representation of a material fact. It has no jurisdiction to try the issues of whether the misrepresentation relates to material fact and whether there was an intention to deceive the electorate in terms of ones qualifications for public office. The finding that Velasco was not qualified to vote due to lack of residency 103

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS requirement does not translate into a finding of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render him ineligible.

QUINTO and TOLENTINO, Jr. vs. COMELEC G.R. No. 189698, February 22, 2010 Appointive Officials; Filing of Certificate of Candidacy. This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the over breadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort. In the United States, claims of facial over breadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished. Facial over breadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged over breadth of the statute. In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute. In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe. Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself. Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of highranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts. Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces. Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009 even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which 104

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.

BAGATSING vs. COMELEC 320 SCRA 817 The Supreme Court did not strike down COMELEC Resolution No. 2050 in Sunga vs. COMELEC, 288 SCRA 76 (1989). A disqualification case may have two (2) aspects, the administrative, which requires only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. There is no provision in R.A. 6646 that treats of a situation where the complaint for disqualification is filed after the election. Why there is a difference between a petition for disqualification filed before and after the election, the question of disqualification is raised as an issue before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or invalid votes and that would not be true in the case of one filed after the electorate has already voted. The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate in the absence of an order suspending proclamation, the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. The mere pendency of a disqualification case against a candidate, and a winning candidate at that, does not justify the suspension of his proclamation after winning in the election. The Court does not look with favor the practice of seeking remedy from the Supreme Court without waiting for the resolution of the pending action before the tribunal below, absent extraordinary circumstances warranting appropriate action by the Supreme Court.

Sec. 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate 105

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. The Commission may motu propio or upon a verified petition may refuse to give due course or cancel the certificate of candidacy of a person found to be a nuisance candidate.

DISCUSSIONS

Nuisance Candidates 1. Those whose certificate has been filed for the purposes of creating a mockery or disrepute on the election process or; 2. Those whose certificate has been to cause confusion among the voters by the similarity of names of the registered candidates; 3. Other circumstances or an act that manifests that the candidate has no bona fide intention to run.

Sec. 70. Guest candidacy. - A political party may nominate and/or support candidates not belonging to it. Guest Candidates- a candidate nominated or supported by a political party not connected with them. Sec. 72. Effects of disqualification cases and priority. - The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

Priority of Disqualification Cases The court shall give priority to disqualification cases to render a final decision not later than seven (7) days before election of the position sought. Effects of Disqualification 1. Declared disqualified with Final Judgment before election Votes cast for him shall not be counted. 2. Not declared disqualified with Final Judgment before election If the candidate wins, he should not be prevented to be proclaimed and assume office.

JURISPRUDENCE

ALBAA vs. COMELEC G.R. No. 163302, July 23, 2004 It is well-settled that the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. The votes intended for the disqualified candidate should not be considered null and void, as it would amount to disenfranchising the electorate in whom sovereignty resides. As we held in Reyes vs. Commission on Elections: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 73. Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. DISCUSSIONS

To be eligible for an elective public office: A person should file a sworn certificate of candidacy. The filing of certificate of candidacy should be within the fixed period given. Withdrawal of Certificate of Candidacy It should be made prior to the election. The candidate must submit under oath a written declaration of withdrawal to the Commission of Election. Filing of Multiple Certificates on More than One Office in the Same Election It will render the candidate not to be eligible for any of them. However, before the expiration of the period of filing a certificate of candidacy he may declare under oath for which he desires to be eligible as candidate and cancel the certificate of candidacy for the other offices. Withdrawal of certificate of candidacy will not affect the liabilities a candidate incurred. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. 108

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

JURISPRUDENCE

GO vs. COMELEC 357 SCRA 739 The requirement that the withdrawal be filed before the election officer of the place where the certificate of candidacy was filed, such requirement is merely directory, and is intended for convenience. It is not mandatory or jurisdictional.

Sec. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; Unless a candidate has officially changed his name through a court approved proceeding, a certificate shall use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware or such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data 109

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS and program of government not exceeding one hundred words, if he so desires. DISCUSSIONS

Contents of certificate of candidacy 1. Shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office. For Members of the Batasang Pambansa they should also include the province, including its component cities, highly urbanized city or district or sector which he seeks to represent 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. His Political Party Civil Status Date of Birth Residence Profession or Occupation That he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. That he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities. That he is not a permanent resident or immigrant to a foreign country. That the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion. That the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion.

The person filing a certificate of candidacy shall also affix his latest photograph, in passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. Candidates Name Unless the candidate changed his name officially through court proceedings, he shall use the name by which he had been baptized. For those who were not baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law. In the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage. He may also include one nickname or stage name by which he is generally or popularly known in the locality. 110

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS For Candidates with the Same Name When there are two or more candidates for an office with the same name and surname, both of them will be informed or such fact and shall state his paternal and maternal surname. Except the incumbent official who may continue to use the name and surname stated in his certificate of candidacy when he was elected. JURISPRUDENCE

MITRA vs. COMELEC, et al. G.R. No. 191938, October 19, 2010 The present petition arose from a petition to deny due course or to cancel Mitras COC. This is the context of and take-off point for our review. From this perspective, the nature and requisites of the COC cancellation proceedings are primary considerations in resolving the present petition. Section 74, in relation to Section 78, of the Omnibus Election Code (OEC) governs the cancellation of, and grant or denial of due course to, COCs. The combined application of these sections requires that the candidates stated facts in the COC be true, under pain of the COCs denial or cancellation if any false representation of a material fact is made. To quote these provisions: While it is undisputed that Mitras domicile of origin is Puerto Princesa City, Mitra adequately proved by substantial evidence that he transferred by incremental process to Aborlan beginning 2008, and concluded his transfer in early 2009.
Given this proof, the burden of evidence lies with the private respondents to establish the contrary, which the latter failed to do. On the other hand, the COMELEC based its ruling that Mitra did not take up residence in Aborlan largely on the photographs of Mitras Aborlan premises; it concluded that the photographed premises could not have been a residence because of its assessment of the interior design and furnishings of the room.
Thus, the COMELEC Second Divisions Resolution (which the COMELEC en banc fully supported) did not merely conclude that Mitra does not live in the photographed premises; more than this, it ruled that these premises cannot be considered a home or a residence, for lack of the qualities of a home that the Second Division wanted to see. The COMELEC not only grossly misread the evidence but even used personal and subjective standards in its assessment of Mitras dwelling when, in fact, the law is replete with standards, i.e., the dwelling must be where a person permanently intends to return and to remain. 111

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

Sec. 75. Filing and distribution of certificate of candidacy. - The certificate of candidacy shall be filed on any day from the commencement of the election period but not later than the day before the beginning of the campaign period: Provided, That in cases of postponement or failure of election under Sections 5 and 6 hereof, no additional certificate of candidacy shall be accepted except in cases of substitution of candidates as provided under Section 77 hereof. The certificates of candidacy for President and Vice-President of the Philippines shall be filed in ten legible copies with the Commission which shall order the printing of copies thereof for distribution to all polling places. The certificates of candidacy for the other offices shall be filed in duplicate with the offices herein below mentioned, together with a number of clearly legible copies equal to twice the number of polling places in the province, city, district, municipality or barangay, as the case may be: a. For representative in the Batasang Pambansa, with the Commission, the provincial election supervisor, city election registrar in case of highly urbanized cities, or an officer designated by the Commission having jurisdiction over the province, city or representative district who shall send copies thereof to all polling places in the province, city or district; b. For provincial offices, with the provincial election supervisor of the province concerned who shall send copies thereof to all polling places in the province; c. For city and municipal offices, with the city or municipal election registrar who shall send copies thereof to all polling places in the city or municipality; and d. For punong barangay or kagawad ng sangguniang barangay, the certificates of candidacy shall be filed in accordance with the provisions of Section 39 of Article VI of this Code. The duly authorized receiving officer shall immediately send the original copy of all certificates of candidacy received by him to the Commission.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

Filing of Certificate of Candidacy On any day from the commencement of the election period but not later than the day before the beginning of the campaign period. Exceptions: 1. Postponement or failure of election under Section 5 and 6. 2. In cases of substitution of candidates as provided under Section 77 hereof. Distribution of Certificate of Candidacy I. For President and Vice-President It shall be filed in ten legible copies with the Commission which shall order the printing of copies thereof for distribution to all polling places.

II. For other Offices The certificates of candidacy for the other offices shall be filed in duplicate with the offices herein below mentioned, together with a number of clearly legible copies equal to twice the number of polling places in the province, city, district, municipality or barangay, as the case may be: a. Representatives in the Batasang Pambansa With the Commission, the provincial election supervisor, city election registrar in case of highly urbanized cities, or an officer designated by the Commission having jurisdiction over the province, city or representative district who shall send copies thereof to all polling places in the province, city or district. b. For Provincial Offices With the provincial election supervisor of the province concerned who shall send copies thereof to all polling places in the province. c. For City and Municipal Offices 113

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS With the city or municipal election registrar who shall send copies thereof to all polling places in the city or municipality d. For Punong Barangay or Kagawad ng Sangguniang Barangay The certificates of candidacy shall be filed in accordance with the provisions of Section 39 of Article VI of this Code. The duly authorized receiving officer shall immediately send the original copy of all certificates of candidacy received by him to the Commission

Sec. 76. Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.

DISCUSSIONS

Who may receive the Certificate of Candidacy The following receiving officers shall have ministerial duty to receive and acknowledge receipt of the certificate of candidacy. 1. 2. 3. 4. The Commission Provincial Election Supervisor Election Registrar Officers designated by the Commission or the board of election inspectors.

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the 114

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.

DISCUSSIONS

Substitution of Candidates in case of Death, Disqualification or Withdrawal After the last day for the filing of certificates of candidacy, if an official candidate of a registered or accredited political party dies, withdraws or is disqualified, he may be substituted. a. Who may substitute? A person belonging to, and certified by the same political party. b. When can the substitute file his certificate of candidacy? The substitute may file his certificate of candidacy for the office affected not later than the mid-day of the day of the election c. What if the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day? The said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate.

JURISPRUDENCE

SINACA vs. MULA 315 SCRA 266 Rule on substitution of an official candidate of a registered or accredited political party who dies, withdraws or is disqualified for any cause after the last day for the filing of certificates of candidacy is governed by Section 77 of the 115

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Omnibus Election Code. A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. As the official candidate of an organized political party, he is bound by the party's rule. He owes loyalty to the party, its tenet and its policies, its platforms and programs of government. To the electorate he represents the party, its principles, ideals and objectives. There is nothing in the Constitution or the statute which requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. The decision of a candidate on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to his discretion. The determination of disputes as to party nominations rests with the party, in the absence of statutes giving the court's jurisdiction. Where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. In the absence of a statutory provision to the contrary, an election may not even be invalidated by the fact that the nomination of the successful candidate was brought about by fraud, and not in the manner prescribed by the statute, provided it appears that noncompliance with the law did not prevent a fair and free vote. With respect to election laws, it is an established rule of interpretation that mandatory provisions requiring certain steps before election will be construed as directory after the elections, to give effect to the will of the electorate. Where a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people.

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

Grounds for Petition to Deny Due Course to or Cancel a Certificate of Candidacy 116

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS It may be filed exclusively on the ground that any information contained on the certificate of candidacy as required under section 74 is false. When the Petition may be Filed It shall be filed at any time not later than twenty-five (25) days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

JURISPRUDENCE

GONZALES vs. COMELEC G.R. 192856, March 8, 2011 As to the ground of false representation in the COC under Section 78, it was held in Salcedo II v. Commission on Elections, G.R. No. 135886, August 16, 1999, that in order to justify the cancellation of COC, it is essential that the false representation mentioned therein pertain to a material matter that would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a material representation, the Court concluded that this refers to qualifications for elective office. Citing previous cases in which the Court interpreted this phrase, it was held that Section 78 contemplates statements regarding age, residence and citizenship or nonpossession of natural-born Filipino status. Furthermore, aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to ones qualification for public office.

MARUHOM vs. COMELEC and ABINAL G.R. No. 179430, July 27, 2009 Under Section 78 of the Omnibus Election Code (OEC), a false representation of material fact in the Certificate of Candidacy (COC) is a ground for the denial or cancellation of the COC. The false representation must pertain to a material fact that affects the right of the candidate to run for the election for which he filed his COC. Such material fact refers to a candidates eligibility or qualification for elective office like citizenship, residence or status as a registered voter. Aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact that would otherwise 117

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS render a candidate ineligible. In other words, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public office. It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the OEC. In the exercise of such jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the COC. If the candidate states a material representation in the COC that is false, the COMELEC is empowered to deny due course to or cancel the COC. The person whose COC is denied due course or cancelled under Section 78 of the OEC is not treated as a candidate at all, as if such person never filed a COC.

MIRANDA vs. ABAYA 311 SCRA 694 While Section 78 of the Election Code enumerated the occasions where a candidate may validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all cannot, by any stretch of the imagination, be a candidate at all. A certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. A valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Election Code.

SALCEDO II vs. COMELEC 312 SCRA 447 In order to justify the cancellation of the certificate of candidacy under Section 78 of the Omnibus Election Code, it is essential that the false representation mentioned therein pertain to a material matter. There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: (1) Before election, pursuant to Section 78 thereof; and (2) After election, pursuant to Section 253 thereof. 118

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Under Section 78 of the Omnibus Election Code, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections. Under Section 253 of the Omnibus Election Code, a candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office. The material misrepresentation contemplated by Section 78 of the Omnibus Election Code refers to qualifications for elective office. A false representation under Section 78 of the Omnibus Election Code must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. GARVIDA vs. SALES, JR., HON. RIOS and PROVINCIAL SUPERVISOR PIPO G.R. No. 124893, April 18, 1997 Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy. In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself and that the jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. The Katipunan ng Kabataan was originally created by PD 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age. RA 7160 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan. The chairman automatically becomes ex-officio member of the Sangguniang Barangay. A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office. 119

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude. For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write. Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioners age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections. Section 424 of the Code sets a members maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old on the day of his election. The addition of the phrase on the day of his election is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio. The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification. 120

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each. One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth the last day of the year. In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. The phrase not more than 21 years of age means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. Not more than 21 years old is not equivalent to less than 22 years old, contrary to petitioners claims. The law does not state that the candidate be less than 22 years on election day. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible. Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office. Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman. To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office. IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE X CAMPAIGN AND ELECTION PROPAGANDA Sec. 79. Definitions. - As used in this Code: (a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties; (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party 122

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. DISCUSSIONS Candidate Refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.

Election Campaign or Partisan Political Activity Refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office.

Kinds of Allowable Political Activity 1. Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; 2. Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; 3. Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; 4. Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or 5. Directly or indirectly soliciting votes, pledges or support for or against a candidate. JURISPRUDENCE

PANERA vs. COMELEC and ANDANAR G.R. No. 181613, September 11, 2009 The conduct of a motorcade is a form of election campaign or partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election Code, on holding political caucuses, conferences, meetings, rallies, 123

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate. A motorcade is a procession or parade of automobiles or other motor vehicles. The conduct thereof during election periods by the candidates and their supporters is a fact that need not be belabored due to its widespread and pervasive practice. The obvious purpose of the conduct of motorcades is to introduce the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates. In the instant Petition, Penera never denied that she took part in the conduct of the motorcade after she filed her COC on the day before the start of the campaign period. For violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera must be disqualified from holding the office of Mayor of Sta. Monica.

Sec. 80. Election campaign or partisan political activity outside campaign period. - It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election.

DISCUSSIONS

Political Activity Outside Campaign Period is Prohibited It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. Provided, that political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

PANERA vs. COMELEC and ANDANAR G.R. No. 181613, September 11, 2009 The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No. 8436, as amended, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at any time. We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act No. 8436, as amended. A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436, would readily reveal that that it did not contain an express repeal of Section 80 of the Omnibus Election Code. An express repeal is one wherein a statute declares, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed. Absent this specific requirement, an express repeal may not be presumed. To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give effect to both.

Sec. 81. Intervention of foreigners. - It shall be unlawful for any foreigner, whether judicial or natural person, to aid any candidate or political party, directly or indirectly, or take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity.

DISCUSSIONS

Intervention of Foreigners 1. Foreigners are not allowed to aid candidate or political party. 2. Take part in or influence in any manner any election. 125

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. To contribute or make expenditure with any election campaign or partisan political activity.

Sec. 82. Lawful election propaganda. - Lawful election propaganda shall include: a. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length; b. Handwritten or printed letters urging voters to vote for or against any particular candidate; c. Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or d. All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted.

DISCUSSIONS

List of Lawful Election Propaganda: a. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length; b. Handwritten or printed letters urging voters to vote for or against any particular candidate; c. Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the 126

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or d. All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. Under Sec. 3 of R.A. no. 9006 Lawful Election Propaganda includes: Section 3. Lawful Election Propaganda. Election propaganda, whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). For the purpose of this Act, lawful election propaganda shall include: 3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length; 3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; 3.3. Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; 3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and 127

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act. Hence, the following means are deemed to be forms of Election Propaganda as provided and allowed by law: I. Printed or published materials - Pamphlets - Leaflets - Cards - Decals - Stickers - Handwritten or Printed letters - Posters (Cloth, Paper or Cardboard - Streamers Paid advertisementsin broadcast media and in print - Newspaper - Newsletter - Newsweekly - Gazette or Magazine Advertising - Comic Books - Handbills - Circulars - Radio Advertisment - Television Advertisement Other means analogous to those mentioned and not prohibited by the COMELEC - Public Rallies - Public Meetings

II.

III.

The following requirements for different forms of election propaganda shall be complied with: i. Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper stickers, streamers, sample list of candidates or any published or printed political matter and any broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words "political advertisement paid for," followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. (Section 4, paragraph 4.1, R.A. No. 9006) 128

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ii. iii. iv. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials shall not exceed: - 81/2 inch in width and 14 inches in length Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding: - 2 feet by 3 feet Streamers, at the site of and on occassion of public meeting or rally, or in announcing the holding of such , are allowed and shall: - Not exceed 3 feet by 8 feet - Maybe displayed or posted 5 days before the date of such meeting or rally - Be removed within 24 hours after such meeting or rally If the broadcast is given free of charge by the radio or television station, it shall be identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. (Sec. 4 par. 4.2 R.A. No. 9006) Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast, or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as provided in Subsection 6.3. hereof. (Sec. 4 par. 4.3 R.A. No. 9006) Print advertisements shall not exceed one-fourth (1/4) page, in broad sheet and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or other publications, during the campaign period. (Sec. 6 par. 6.1 R.A. No. 9006). Under Sec. 6 par. 6.2 R.A. No. 9006: a. Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation. b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party. Sec. 86 of B.P. Blg. 881 provides: Section 86. Regulation of election propaganda through mass media.

v.

vi.

vii.

viii.

ix.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS a. The Commission shall promulgate rules and regulations regarding the sale of air time for partisan political purposes during the campaign period to insure the equal time as to duration and quality in available to all candidates for the same office or political parties at the same rates or given free of charge; that such rates are reasonable and not higher than those charged other buyers or users of air time for nonpolitical purposes; that the provisions of this Code regarding the limitation of expenditures by candidates and political parties and contributions by private persons, entities and institutions are effectively enforced; and to ensure that said radio broadcasting and television stations shall not unduly allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including said candidate and/or political party in such program respecting, however, in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest. b. All contracts for advertising in any newspaper, magazine, periodical or any form of publication promoting or opposing the candidacy of any person for public office shall, before its implementation, be registered by said newspaper, magazine, periodical or publication with the Commission. In every case, it shall be signed by the candidate concerned or by the duly authorized representative of the political party. c. No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period. Any radio or television stations, including that owned or controlled by the Government, shall give free of charge equal time and prominence to an accredited political party or its candidates if it gives free of charge air time to an accredited political party or its candidates for political purposes. In all instances, the Commission shall supervise the use and employment of press, radio and television facilities so as to give candidates equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in this Code on election spending. x. Subject to the requirements of local ordinances on the issuance of permits, any political party supporting official candidates or any candidate individually or jointly with other aspirants may hold peaceful political rallies, meetings, and other similar activities 130

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS during the campaign period: Provided, That all applications for permits to hold meetings, rallies and other similar political activities, receipt of which must be acknowledged in writing and which application shall be immediately posted in a conspicuous place in the city or municipal building, shall be acted upon in writing by local authorities concerned within three days after the filing thereof and any application not acted upon within said period shall be deemed approved: and Provided, further, That denial of any application for said permit shall be appealable to the provincial election supervisor or to the Commission whose decision shall be made within forty-eight hours and which shall be final and executory: Provided, finally, That one only justifiable ground for denial is a prior written application by any candidate or political party for the same purpose has been approved. (Sec. 87, B.P. Blg. 881) Any political party or candidate shall notify the election registrar concerned of any public rally said political party or candidate intends to organize and hold in the city or municipality, and within seven working days thereafter submit to the election registrar a statement of expenses incurred in connection therewith. (Sec 87, B.P. Blg. 881) The COMELEC shall procure shall in at least one (1) newspaper of general circulation and air time in at least one (1) major broadcasting station or entity in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "COMELEC Space": Provided, further, That in the absence of said broadcasting station or entity, broadcasting shall be done in any radio or television station in said province or city, which shall be known as "COMELEC Time". Said time shall be allocated to the COMELEC free of charge, while said space shall be allocated to the COMELEC upon payment of just compensation. The COMELEC time and space shall be utilized exclusively by the COMELEC for public information dissemination on election-related concerns. (Sec. 8, R.A. no 9006) COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. (Sec. 9 R.A 9006) Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent. (Sec. 9 R.A. no. 9006) 131

xi.

xii.

xiii.

xiv.

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS xv. Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or property which shall be allocated equitably and impartially among the candidates. (Sec. 9, R.A. no 9006)

Sec. 83. Removal, destruction or defacement of lawful election propaganda prohibited. - It shall be unlawful for any person during the campaign period to remove, destroy, obliterate, or in any manner deface or tamper with, or prevent the distribution of lawful election propaganda.

DISCUSSIONS It shall be unlawful for any person during the campaign period: a. To remove, destroy, obliterate, in any manner deface or tamper a lawful election propaganda. b. To prevent the distribution of lawful election propaganda.

Sec. 84. Requirements for published or printed election propaganda. - Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, circulars, handbills, bumper stickers, streamers, simple list of candidates or any published or printed political matter for or against a candidate or group of candidates to any public office shall bear and be identified by the words "paid for by" followed by the true and correct name and address of the payor and by the words "printed by" followed by the true and correct name and address of the printer.

DISCUSSIONS Requirements of published or printed election propaganda: Any published or printed election propaganda should bear and be identified by the words: 1. "paid for by" followed by name and address of the payor and; 2. by the words "printed by" folowed by the name and address of the printer.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 85. Prohibited forms of election propaganda. - It shall be unlawful: (a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84 hereof; (b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party; (c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate; (d) To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audiovisual units or other screen projections except telecasts which may be allowed as hereinafter provided; and (e) For any radio broadcasting or television station to sell or give free of charge air time for campaign and other political purposes except as authorized in this Code under the rules and regulations promulgated by the Commission pursuant thereto. Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission. The following are list of Prohibited forms of election propaganda: a.) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84 hereof; b.) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party. c.) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of 133

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate. d.) To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audiovisual units or other screen projections except telecasts which may be allowed as hereinafter provided e.) For any radio broadcasting or television station to sell or give free of charge air time for campaign and other political purposes except as authorized in this Code under the rules and regulations promulgated by the Commission pursuant thereto. Any prohibited election propaganda shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission. Sec. 86. Regulation of election propaganda through mass media. - (a) The Commission shall promulgate rules and regulations regarding the sale of air time for partisan political purposes during the campaign period to insure the equal time as to duration and quality in available to all candidates for the same office or political parties at the same rates or given free of charge; that such rates are reasonable and not higher than those charged other buyers or users of air time for non-political purposes; that the provisions of this Code regarding the limitation of expenditures by candidates and political parties and contributions by private persons, entities and institutions are effectively enforced; and to ensure that said radio broadcasting and television stations shall not unduly allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including said candidate and/or political party in such program respecting, however, in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest. (b) All contracts for advertising in any newspaper, magazine, periodical or any form of publication promoting or opposing the candidacy of any person for public office shall, before its implementation, be registered by said newspaper, magazine, periodical or publication with the Commission. In every case, it shall be signed by the candidate concerned or by the duly authorized representative of the political party. (c) No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period. Any 134

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS radio or television stations, including that owned or controlled by the Government, shall give free of charge equal time and prominence to an accredited political party or its candidates if it gives free of charge air time to an accredited political party or its candidates for political purposes. In all instances, the Commission shall supervise the use and employment of press, radio and television facilities so as to give candidates equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in this Code on election spending. Rules and regulations promulgated by the Commission under and by authority of this section shall take effect on the seventh day after their publication in at least two daily newspapers of general circulation. Prior to the effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through the mass media. Violation of the rules and regulations of the Commission issued to implement this section shall be an election offense punishable under Section 264 hereof. Regulation of Election Propaganda through Mass Media. a.) The Commission shall promulgate rules and regulations Regarding the sale of air time during the campaign period Make sure that the limitation of expenditures are effectively enforced Ensure that said radio broadcasting and television stations shall not allow scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party except for newsworthy events and matters of public interest.

b.) All contracts for advertising in any newspaper, magazine, periodical or any form of publication promoting or opposing the candidacy of any person for public office shall: 1.) Before its implementation, be registered with the Commission. 2.) Be signed by the candidate concerned or by the duly authorized representative of the political party. 3.) No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period. Any radio or television stations, 135

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS including that owned or controlled by the Government, shall give free of charge equal time and prominence to an accredited political party or its candidates if it gives free of charge air time to an accredited political party or its candidates for political purposes. In all instances, the Commisson shall supervise the use and employment of press, radio and television facilities so as to give candidates equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in this Code on election spending. Any violation of the rules and regulations of the Commission on this section shall be an election offense punishable under Section 264 hereof. Sec. 87. Rallies, meetings and other political activities. - Subject to the requirements of local ordinances on the issuance of permits, any political party supporting official candidates or any candidate individually or jointly with other aspirants may hold peaceful political rallies, meetings, and other similar activities during the campaign period: Provided, That all applications for permits to hold meetings, rallies and other similar political activities, receipt of which must be acknowledged in writing and which application shall be immediately posted in a conspicuous place in the city or municipal building, shall be acted upon in writing by local authorities concerned within three days after the filing thereof and any application not acted upon within said period shall be deemed approved: and Provided, further, That denial of any application for said permit shall be appealable to the provincial election supervisor or to the Commission whose decision shall be made within forty-eight hours and which shall be final and executory: Provided, finally, That one only justifiable ground for denial is a prior written application by any candidate or political party for the same purpose has been approved. DISCUSSIONS Requirements for Issuance of Permits: 1. Receipt of applications for permits must be acknowledged in writing. 2. Posting of the application in a conspicuous place in the city or municipal building. The application shall be acted upon in writing by local authorities concerned within three days after the filing thereof and any application not acted upon within said period shall be deemed approved.

136

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Where to appeal a Denied Permit 1. To the provincial election supervisor or; 2. The Commission

When Decision shall be made Decision shall be made within forty-eight hours and which shall be final and executory.

Ground for Denial of a Permit The one and only justifiable ground for denial is a prior written application by any candidate or political party for the same purpose has been approved. Sec. 88. Public rally. - Any political party or candidate shall notify the election registrar concerned of any public rally said political party or candidate intends to organize and hold in the city or municipality, and within seven working days thereafter submit to the election registrar a statement of expenses incurred in connection therewith.

DISCUSSIONS

Public Rallies 1. The election registrar should be informed with regard to any public rally a political party or candidate intends to organize and hold; 2. and within 7 days submit to the election registrar a statement of expenses incurred in the public rally theyve organized. Sec. 89. Transportation, food and drinks. - It shall be unlawful for any candidate, political party, organization, or any person to give or accept, free of charge, directly or indirectly, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; or to give or contribute, directly or indirectly, money or things of value for such purpose. 137

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

When does it become unlawful? It shall be unlawful to give or accept, free of charge, directly or indirectly, transportation, food or drinks or things of value: 1. five hours before and after a public meeting; 2. on the day preceding the election; and 3. on the day of the election

Sec. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated.

DISCUSSIONS

The Commission shall procure space: 1. At least one newspaper of general circulation in the said province or city. 2. In the absence of said newspaper in any other magazine or periodical in said province or city. The space acquired shall be known as Comelec Space where the candidates can announce their candidacy. The said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated.

138

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

PHILIPPINE PRESS INSTITUTE, INC. vs. COMELEC 244 SCRA 272 A written communication officially directing a print media company to supply free print space, dispatched by a government agency and signed by a member of the Commission presumably legally authorized to do so, is bound to produce a coercive effect upon the company so addressed. To compel print media companies to donate COMELEC space of the dimensions specified in Section 2 of Resolution No. 2772, amounts to taking of private property for public use or purpose. The element of necessity for the taking has not been shown by respondent COMELEC. The taking of private property for public use is authorized by the Constitution, but not without payment of just compensation. Section 2 of Resolution No. 2772 does not constitute a valid exercise of the power of eminent domain.

Sec. 91. Comelec poster area. - Whenever practicable, the Commission shall also designate and provide for a common poster are in strategic places in each town wherein candidates can announce and further their candidacy through posters, said space to be likewise allocated free of charge, equally and impartially by the Commission among all the candidates concerned.

DISCUSSIONS

Comelec poster area A common poster space designated and provided by the Commission. The space shall likewise be allocated free of charge, equally and impartially by the Commission among all the candidates concerned 139

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS . Sec. 92. Comelec time. - The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television station are hereby amended so as to provide radio television time, free of charge, during the period of the campaign.

DISCUSSIONS

Comelec Time Air time obtained from radio and television. For this purpose, the franchise of all radio broadcasting and television station are hereby amended so as to provide radio television time, free of charge, during the period of the campaign The space shall likewise be allocated free of charge, equally and impartially by the Commission among all the candidates concerned.

Sec. 93. Comelec information bulletin. - The Commission shall cause the printing, and supervise the dissemination of bulletins to be known as "Comelec Bulletin" which shall be of such size as to adequately contain the picture, bio-data and program of government of every candidate. Said bulletin shall be disseminated to the voters or displayed in such places as to give due prominence thereto. Any candidate may reprint at his expense, any "Comelec Bulletin" upon prior authority of the Commission: Provided that the printing of the names of the different candidates with their biodata must be in alphabetical order irrespective of party affiliation.

DISCUSSIONS

Comelec Information Bulletin A journal containing the picture, bio-data and program of government of every candidate. 140

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Said bulletin shall be disseminated to the voters or displayed in such places as to give due prominence thereto. Any candidate may reprint at his expense, any "Comelec Bulletin" upon prior authority of the Commission.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XI ELECTORAL CONTRIBUTIONS AND EXPENDITURES

Sec. 94. Definitions. - As used in this Article: (a) The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. (b) The term "expenditure" includes the payment or delivery of money of anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area. (c) The term "person" includes an individual, partnership, committee, association, corporation, and any other organization or group of persons.

DISCUSSIONS Contribution Includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area.

142

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Exception: Services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party.

Expenditure Includes the payment or delivery of money of anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area.

Definition of Person An individual, partnership, committee, association, corporation, and any other organization or group of persons.

Sec. 95. Prohibited contributions. - No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following: (a) Public or private financial institutions: Provided, however, That nothing herein shall prevent the making of any loan to a candidate or political party by any such public or private financial institutions legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business; (b) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; (c) Natural and juridical persons who hold contracts or subcontracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works;

143

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (d) Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations; (e) Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations; (f) Educational institutions which have received grants of public funds amounting to no less than P100,000.00; (g) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines ; and (h) Foreigners and foreign corporations. It shall be unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated herein.

DISCUSSIONS

It shall be unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated herein: 1. 2. 3. Public or private financial institutions except for loans from public or private financial institutions legally in the business of lending money Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation Natural and juridical persons who hold contracts or subcontracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations 144

4.

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 5. Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations Educational institutions which have received grants of public funds amounting to no less than P100,000.00 Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines Foreigners and foreign corporations

6. 7. 8.

Section 96. Soliciting or receiving contributions from foreign sources. - It shall be unlawful for any person, including a political party or public or private entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or nature from any foreign national, government or entity for the purposes of influencing the results of the election. Section 97. Prohibited raising of funds. - It shall be unlawful for any person to hold dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, or cinematographic, theatrical or other performances for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; or for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including election day; Provided, That normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition. Section 98. True name of contributor required. - No person shall make any contribution in any name except his own nor shall any candidate or treasurer of a political party receive a contribution or enter or record the same in any name other than that of the person by whom it was actually made. Section 99. Report of contributions. - Every person giving contributions to any candidate, treasurer of the party, or authorized representative of such candidate or treasurer shall, not later than thirty days after the day of the election, file with the Commission a report under oath stating the amount of each contribution, the name of the candidate, agent of the candidate or political party receiving the contribution, and the date of the contribution. 145

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 100 and Section 101 as amended by Section 13 of R.A. 7166; Section 13. Authorized Expenses of Candidates and Political Parties. The agreement amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates. - Ten pesos (P10.00) for President and VicePresident; and for other candidates Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and (b) For political parties. - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates. Any provision of law to the contrary notwithstanding any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission shall not be subject to the payment of any gift tax. Section 102. Lawful expenditures. - To carry out the objectives of the preceding sections, no candidate or treasurer of a political party shall, directly or indirectly, make any expenditure except for the following purposes: (a) For travelling expenses of the candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto; (b) For compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign; (c) For telegraph and telephone tolls, postage, freight and express delivery charges; (d) For stationery, printing and distribution of printed matters relative to candidacy; (e) For employment of watchers at the polls; (f) For rent, maintenance and furnishing of campaign headquarters, office or place of meetings;

146

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (g) For political meetings and rallies and the use of sound systems, lights and decorations during said meetings and rallies; (h) For newspaper, advertisements; radio, television and other public

(i) For employment of counsel, the cost of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Section 100 and 101 hereof; (j) For copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the lists the costs of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Sections 100 and 101 hereof; or (k) For printing sample ballots in such color, size and maximum number as may be authorized by the Commission and the cost of such printing shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Sections 100 and 101 hereof. Section 103. Persons authorized to incur election expenditures. - No person, except the candidate, the treasurer of a political party or any person authorized by such candidate or treasurer, shall make any expenditure in support of or in opposition to any candidate or political party. Expenditures duly authorized by the candidate or the treasurer of the party shall be considered as expenditures of such candidate or political party. The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission signed by the candidate or the treasurer of the party and showing the expenditures so authorized, and shall state the full name and exact address of the person so designated. Section 104. Prohibited donations by candidates, treasurers of parties or their agents. - No candidate, his or her spouse or any relative within the second civil degree of consanguinity or affinity, or his campaign manager, agent or representative shall during the campaign period, on the day before and on the day of the election, directly or indirectly, make any donation, contribution or gift in cash or in kind, or undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization: Provided, That normal and customary religious dues or contributions, such as religious stipends, tithes or 147

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS collections on Sundays or other designated collection days, as well as periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period, are excluded from the prohibition. The same prohibition applies to treasurers, agents or representatives of any political party. Section 105. Accounting by agents of candidate or treasurer. - Every person receiving contributions or incurring expenditures by authority of the candidate or treasurer of the party shall, on demand by the candidate or treasurer of the party and in any event within five days after receiving such contribution or incurring such expenditure, render to the candidate or the treasurer of the party concerned, a detailed account thereof with proper vouchers or official receipts. Section 106. Records of contributions and expenditures. (a) It shall be the duty of every candidate, treasurer of the political party and person acting under the authority of such candidate or treasurer to issue a receipt for every contribution received and to obtain and keep a receipt stating the particulars of every expenditure made. (b) Every candidate and treasurer of the party shall keep detailed, full, and accurate records of all contributions received and expenditures incurred by him and by those acting under his authority, setting forth therein all information required to be reported. (c) Every candidate and treasurer of the party shall be responsible for the preservation of the records of contributions and expenditures, together with all pertinent documents, for at least three years after the holding of the election to which they pertain and for their production for inspection by the Commission or its duly authorized representative, or upon presentation of a subpoena duces tecum duly issued by the Commission. Failure of the candidate or treasurer to preserve such records or documents shall be deemed prima facie evidence of violation of the provisions of this Article. Section 107. Statement of contributions and expenditures. - Every candidate and treasurer of the political party shall, not later than seven days, or earlier than ten days before the day of the election, file in duplicate with the office indicated in the following section, full, true and itemized, statement of all contributions and expenditures in connection with the election. 148

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Within thirty days after the day of the election, said candidate and treasurer shall also file in duplicate a supplemental statement of all contribution and expenditures not included in the statement filed prior to the day of the election. Section 108. Place for filing statements. - The statements of contributions and expenditures shall be filed as follows: (a) Those of candidates for President and Vice-President, with the Commission. (b) Those of candidates for Members of the Batasang Pambansa, with the provincial election supervisor concerned, except those of candidates in the National Capital Region which shall be filed with the regional election director of said region. (c) Those of candidates for provincial offices, with the provincial election supervisor concerned. (d) Those of candidates for city, municipal and barangay offices, with the election registrar concerned. If the statement is sent by mail, it shall be by registered mail, and the date on which it was registered with the post office may be considered as the filing date thereof if confirmed on the same date by telegram or radiogram addressed to the office or official with whom the statement should be filed. The provincial election supervisors and election registrars concerned shall, within fifteen days after the last day for the filing of the statements, send to the Commission duplicate copies of all statements filed with them.

JURISPRUDENCE PILAR vs. COMELEC 245 SCRA 759 Section 14 of Republic Act No. 7166 states that every candidate has the obligation to file his statement of contributions and expenditures. The rule is well recognized that where the law does not distinguish courts should not distinguish. The term every candidate must be deemed to refer not only to a candidate who pursued his campaign but also to one who withdrew his candidacy. 149

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 13 of Resolution No. 2348 categorically refers to all candidates who filed their certificate of candidacy. Petitioners withdrawal of his candidacy did not extinguish his liability for the administrative fine. View that Section 14 of Republic Act No. 7166 states that every candidate has the obligation to file his statement of contributions and expenditures. View that the term candidate is used to designate a person who actually submits himself and is voted for at our election.

Section 109. Form and contents of statement. - The statement shall be in writing, subscribed and sworn to by the candidate or by the treasurer of the party, shall be complete as of the date next preceding the date of filing and shall set forth in detail (a) the amount of contribution, the date of receipt, and the full name and exact address of the person from whom the contribution was received; (b) the amount of every expenditure, the date thereof, the full name and exact address of the person to whom payment was made, and the purpose of the expenditure; (c) any unpaid obligation, its nature and amount, and to whom said obligation is owing; and (d) such other particulars which the Commission may require. If the candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact. Section 110. Preservation and inspection of statements. - All statements of contributions and expenditures shall be kept and preserved at the office where they are filed and shall constitute part of the public records thereof for three years after the election to which they pertain. They shall not be removed therefrom except upon order of the Commission or of a competent court and shall, during regular office hours, be subject and open to inspection by the public. The officer in-charge thereof, shall, on demand, furnish certified copies of any statement upon payment of the fee prescribed under Section 270 hereof. It shall be the duty of the Commission to examine all statements of contributions and expenditures of candidates and political parties to determine compliance with the provisions of this Article. Section 111 was amended by Section 14 of R.A. 7166 Section 111 hereof; Section 14. Statement of Contributions and Expenditures: Effect of Failure to File Statement. - Every candidate and treasurer of the 150

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act. Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures. For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two thousand pesos (P2,000.00) to Sixty thousand pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office. Section 14 of R.A. 7166 states that every candidate has the obligation to file his statement and contributions and expenditures. The law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, therefore the term every candidate must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy.

151

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 112. Report of contractor and business firms. - Every person or firm to whom any electoral expenditure is made shall, within thirty days after the day of the election, file with the Commission a report setting forth the full names and exact addresses of the candidates, treasurers of political parties, and other persons incurring such expenditures, the nature or purpose of each expenditure, the date and costs thereof, and such other particulars as the Commission may require. The report shall be signed and sworn to by the supplier or contractor, or in case of a business firm or association, by its president or general manager. It shall be the duty of such person or firm to whom an electoral expenditure is made to require every agent of a candidate or of the treasurer of a political party to present written authority to incur electoral expenditures in behalf of such candidate or treasurer, and to keep and preserve at its place of business, subject to inspection by the Commission or its authorized representatives, copies of such written authority, contracts, vouchers, invoices and other records and documents relative to said expenditures for a period of three years after the date of the election to which they pertain. It shall be unlawful for any supplier, contractor or business firm to enter into contract involving election expenditures with representatives of candidates or political parties without such written authority.

152

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XII REGISTRATION OF VOTERS

Section 113. Repealed by RA 8189 Section 7 Section 7. General Registration of Voters. Immediately after the barangay elections in 1997, the existing certified list of voters shall cease to be effective and operative. For purposed of the May 1998 elections and all elections, plebiscites, referenda, initiatives, and recalls subsequent thereto, the Commission shall undertake a general registration of voters before the Board of Election Inspectors on June 14, 15, 21, and 22 and, subject to the discretion of the Commission, on June 28 and 29, 1997 in accordance with this Act. Section 114. Repealed by RA 8189 Section 8 Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. Section 115. Repealed by RA 8189 Section 4 Section 4. Permanent List of Voters. There shall be a permanent list of voters per precinct in each city or municipality consisting of all registered voters residing within the territorial jurisdiction of every precinct indicated by the precinct maps. Such precinct-level list of voters shall be accompanied by an addition deletion list of the purpose of updating the list. For the purpose of the 1997 general registration, the Commission shall cause the preparation and posting of all precinct maps in every barangay nationwide. Five days before the 1997 general registration, individual precinct maps shall be posted at the door of each polling place. Subsequently, the Election Officer shall be responsible for the display, throughout the year, of precinct maps in his office and in the bulletin board of the city or municipal hall. The precinct assignment of a voter in the permanent list of voters shall not be changed or altered or transferred to another precinct 153

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS without the express written consent of the voter: Provided, however, That the voter shall not unreasonably withhold such consent. Any violation thereof shall constitute an election offense which shall be punished in accordance with law. Section 116 and Section 117 Repealed by R.A. 8189 - Section 9 Section 9. Who may Register. All citizens of the Philippines not otherwise disqualified by law who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one (1) year, and in the place wherein they propose to vote, for at least six (6) months immediately preceding the election, may register as a voter. Any person who temporarily resides in another city, municipality or country solely by reason of his occupation, profession, employment in private or public service, educational activities, work in the military or naval reservations within the Philippines, service in the Armed Forces of the Philippines, the National Police Forces, or confinement or detention in government institutions in accordance with law, shall not be deemed to have lost his original residence. Any person, who, on the day of registration may not have reached the required age or period of residence but, who, on the day of the election shall possess such qualifications, may register as a voter. Only citizen of the Philippines may register to vote. As a general proposition, all citizens of age, not otherwise disqualified by law who meet the residency requirements enjoy the right to suffrage. However, one cannot exercise the right to suffrage without first registering to vote. It is incumbent upon one who claims Philippine citizenship to prove to the satisfaction of the court that he is really a Filipino. No presumption can be indulged in favor of the claimant of the Philippine citizenship and any doubt regarding the citizenship must be resolved in favor of the state. It is a settled rule that only legitimate children follow the citizenship of the father and that illegitimate children are under the parental authority of the mother and follow her nationality. Moreover, we have also ruled that an illegitimate child of a Filipina need not perform any act to confer upon him all the rights and privileges attached to citizens of the Philippines; he automatically becomes citizen himself. 154

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Change of Residence to another City or Municipality Section 12. Change of Residence to Another City or Municipality. Any registered voter who has transferred residence to another city or municipality may apply with the Election Officer of his new residence for the transfer of his registration records. The application for transfer of registration shall be subject to the requirements of notice and hearing and the approval of the Election Registration Board, in accordance with this Act. Upon approval of the application for transfer, and after notice of such approval to the Election Officer of the former residence of the voter, said Election Officer shall transmit by registered mail the voters registration record to the Election Officer of the voters new residence. Change of Address in the Same City or Municipality Section 13. Change of Address in the Same City or Municipality. Any voter who has changed his address in the same city or municipality shall immediately notify the Election Officer in writing. If the change of address involves a change in precinct, the Board shall transfer his registration record to the precinct book of voters of his new precinct and notify the voter of his new precinct all changes of address shall be reported to the office of the provincial election supervisor and the Commission in Manila.

JURISPRUDENCE

ASISTIO vs. TRINIDAD-PE AGUIRRE, et al. G.R. No. 191124, April 27, 2010 The residency requirement of a voter is at least one (1) year residence in the Philippines and at least six (6) months in the place where the person proposes or intends to vote. Residence, as used in the law prescribing the qualifications for suffrage and for elective office, is doctrinally settled to mean domicile, importing not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention inferable from a persons acts, activities, and utterances. Domicile denotes a fixed permanent residence where, when absent for business or pleasure, or for like reasons, one intends to return. In the consideration of circumstances obtaining in each particular case, three rules must be borne in mind, namely: (1) that a person must have a residence or domicile somewhere; (2) once established, it remains until a new one is acquired; and (3) that a person can 155

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

Section 118. Repealed by R.A. 8189 Section 11 Section 11. Disqualification. The following shall be disqualified from registering: a) Any person who has been sentenced by final judgment to suffer imprisonment of not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence; b) Any person who has been adjudged by final judgment by a competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the 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 automatically reacquire the right to vote upon expiration of five (5) years after service of sentence; and c) Insane or incompetent persons declared as such by competent authority unless subsequently declared by proper authority that such person is no longer insane or incompetent. Section 119. Preparation of the permanent list of voters. - For the preparation of the permanent list of voters in nineteen hundred and ninety-six and every twelve years thereafter, the board of election inspectors referred to in Article XIV hereof of each election precinct shall hold four meetings on the seventh Saturday, seventh Sunday, sixth Saturday and sixth Sunday preceding the date of the regular election to be held. At these meetings the board shall prepare eight copies of the list of voters of the precinct wherein it shall register the electors applying for registration. 156

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 120 and Section 121 Repealed by R.A. 8189 Section 30 Section 30. Preparation and Posting of the Certified List of Voters. The Board shall prepare and post certified list of voters ninety (90) days before a regular election and sixty (60) days before a special election and furnish copies thereof to the provincial, regional and national central files. Copies of the certified list, along with a certified list of deactivated voters categorized by precinct per barangay, within the same period shall likewise be posted in the office of the Election Officer and in the bulletin board of each city/municipal hall. Upon payment of the fees as fixed by the Commission, the candidates and heads of registered political parties shall also be furnished copies thereof. The Board shall also furnish two (2) certified copies for said certified list of voters, along with a certified list of deactivated voters to the Board of Election Inspectors for posting in the polling place and for their reference on election day. Sealing of Precinct Book of Voters Section 31. Sealing of Precinct Book of Voters. The Board shall notify within fifteen (15) days before the start of the campaign period of all registered political parties and members of the Board of Election Inspectors to inspect and verify the completeness of the voters registration records for each precinct compiled in the book of voters. After verification and certification by the Board of Election Inspectors and party representatives as to the completeness of the voters registration records in the precinct book of voters, the Board shall seal the book of voters in the presence of the former at the start of the campaign period and take custody of the same until their distribution to the Board of Election Inspectors on election day. The Election Officer shall deliver the sealed precinct book of voters to the chairman of the Board of Election Inspectors when the latter secures its official ballots and other paraphernalia for Election Day. Section 122. Transfer of names of voters from the permanent list to the current one. - The transfer of the names of the voters of the precinct already registered in the list used in the preceding election to the list to be made as provided for in the two preceding sections is a ministerial duty of the board, and any omission or error in copying shall be corrected motu proprio, or upon petition of the interested party, without delay and in no case beyond three days from the time such error is noticed; and if the board should refuse, the interested party may apply for such correction to 157

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the proper municipal or metropolitan trial court which shall decide the case without delay and in no case beyond three days from the date the petition is filed. The decision of the proper municipal or metropolitan trial court shall be final and unappealable in whatever form or manner. To facilitate the transfer of names of voters, the election registrar shall deliver the book of voters to the board of election inspectors on the day before the registration of voters, to be returned after the last day of registration. Section 123. Cancellation and exclusion in the transfer of names. - In transferring the names of the voters of the precinct from the list used in the preceding election to the current list, the board shall exclude those who have applied for the cancellation of their registration, those who have died, those who did not vote in the immediately preceding two successive regular elections, those who have been excluded by court orders issued in accordance with the provisions of this Code, and those who have been disqualified, upon motion of any member of the board or of any elector or watcher, upon satisfactory proof to the board and upon summons to the voter in cases of disqualification. The motion shall be decided by the board without delay and in no case beyond three days from its filing. Should the board deny the motion, or fail to act thereon within the period herein fixed, the interested party may apply for such exclusion to the municipal or metropolitan trial court which shall decide the petition without delay and in no case beyond three days from the date the petition is filed. The decision of the court shall be final. The poll clerk shall keep a record of these exclusions and shall furnish three copies thereof to the election registrar who shall, in turn keep one copy and send the two other copies thereof to the provincial election supervisor and the Commission, to be attached by them to the permanent list under their custody. In case of death, refer to R.A. 8189, Section 29 Section 124. Meeting to close the list of voters. - The board of election inspectors shall also meet on the second Saturday immediately preceding the day of the regular election, or on the second day immediately preceding the day of the special election, plebiscite or referendum whether it be Sunday or a legal holiday, for the purpose of making such inclusions, exclusions, and corrections as may be or may have been ordered by the courts, stating opposite every name so corrected, added, or cancelled, the date of the order and the court which issued the same; and for the consecutive numbering of the voters of the election precinct. Should the board fail to include in the list of voters any person ordered by competent court to be so included, said person shall, upon presentation of a certified copy of the order of inclusion and upon proper identification, be allowed by the board to vote. 158

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Should the board fail to exclude from the list of voters any person ordered by the court to be so excluded, the board shall not permit said person to vote upon presentation to it by any interested party of a certified copy of the order of exclusion. Section 125. Re-registration. - A voter who is registered in the permanent list of voters need not register anew for subsequent elections unless he transfer residence to another city or municipality, or his registration has been cancelled on the ground of disqualification and such disqualification has been lifted or removed. Likewise a voter whose registration has been cancelled due to failure to vote in the preceding regular election may register anew in the city or municipality where he is qualified to vote. Section 126. Repealed by R.A. 8189 Section 10 Section 10. Registration of Voters. A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter. The application shall contain the following data: a) Name, surname, middle name, and/or maternal surname; b) Sex; c) Date, and place of birth; d) Citizenship; e) Civil status, if married, name of spouse; f) Profession, occupation or work; g) Periods of residence in the Philippines and in the place of registration; h) Exact address with the name of the street and house number for location in the precinct maps maintained by the local office of the Commission, or in case there is none, a brief description of his residence, sitio, and barangay;

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS i) A statement that the applicant possesses all the qualifications of a voter; j) A statement that the applicant is not a registered voter of any precinct; and k) Such information or data as may be required by the Commission. The application for registration shall contain three (3) specimen signatures of the applicant, clear and legible rolled prints of his left and right thumbprints, with four (4) identification size copies of his latest photograph, attached thereto, to be taken at the expense of the Commission. Before the applicant accomplishes his application for registration, the Election Officer shall inform him of the qualifications and disqualifications prescribed by law for a voter, and thereafter, see to it that the accomplished application contains all the data therein required and that the applicants specimen signatures, fingerprints, and photographs are properly affixed in all copies of the voters application.

JURISPRUDENCE

AKBAYAN-YOUTH vs. COMELEC 355 SCRA 318 The standby power of the COMELEC to fix additional dates and periods for registration under Section 29 of Republic Act No. 6646 and Section 28 of Republic Act No. 8436 must be understood in the context of the inadequacy of the registration period under the law then prevailing, i.e., the period provided in Section 126 of Batas Pambansa Blg. 881, under which provision of the registration of voters was held only on the seventh and sixth Saturdays before a regular election. Obviously, when Congress prescribed the new system of registration under Republic Act No. 8189, it intended to discard the system set forth in Batas Pambansa Blg. 881. The right to suffrage is so important that every citizen knows or ought to know that it is his right, duty and privilege to register and vote, if qualified. Determination of the feasibility of conducting a special registration less than fifty (50) days prior to the regular election must be dealt with realistically and not from the standpoint of pure theory. Since it is the COMELECs honest-to160

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS goodness assessment that it cannot undertake the conduct of special registration without compromising the integrity of the entire election process, then the Court would do well to respect this administrative finding of fact.

Section 127. Repealed by R.A. 8189 Section 14 Section 14. Illiterate or Disabled Applicants. Any illiterate person may register with the assistance of the Election Officer or any member of an accredited citizens arms. The Election Officer shall place such illiterate person under oath, ask him the questions, and record the answers given in order to accomplish the application form in the presence of the majority of the members of the Board. The Election Officer or any member of an accredited citizens arm shall read the accomplished form aloud to the person assisted and ask him if the information given is true and correct The accomplished form shall be subscribed by the applicant in the presence of the Board by means of thumb mark or some other customary mark and it shall be subscribed and attested by the majority of the members of the Board. The attestation shall state the name of the person assisted, the name of the Election Officer or the member of the accredited citizens arm who assisted the applicant, the fact that the Election Officer placed the applicant under oath, that the Election Officer or the member of the accredited citizens arm who assisted the applicant read the accomplished form to the person assisted, and that the person assisted affirmed its truth and accuracy, by placing his thumbmark or some other customary mark on the application in the presence of the Board. The application for registration of a physically disabled person may be prepared by any relative within the fourth civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizens arm using the data supplied by the applicant. The fact of illiteracy or disability shall be so indicated in the application. An illiterate or disabled person refers to one who cannot by himself prepare an application for registration because of his physical disability and/ or inability to read and write (R.A. 8189, Sec. 3). An illiterate or disabled voter under the law is one who is duly registered as such, and the fact of which is clearly indicated the voters registration record (VRR). No person may vote as an illiterate or disabled voter, requiring assistance without prior registration of such at the time of his application for registration. 161

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Under Sec. 30 of the COMELECs instructions to the Board of Election Inspectors dated December 29, 2009, no voter shall be allowed to vote as illiterate or person with disability/disabled, unless such fact is indicated in the EDCL or the VRR. However, note that there is an exception to the requirement to prior registration, under the same section, thus a person with physically impaired capacity to use the AES my also be assisted in feeding his ballot into the PCOS. Consequently, someone suffering from tremors because of Parkinsons disease, for example, may be assisted in the feeding of the ballot into the machine, but not with the actual voting itself. Section 128. Repealed by R.A. 8189 Section 25 Section 25. Voters Identification Card. The voters identification card issued to the registered voter shall serve as a document for his identification. In case of loss or destruction, no copy thereof may be issued except to the registered voter himself and only upon the authority of the Commission. The Commission shall adopt a design for the voters identification card which shall be, as much as possible, tamper proof. It shall provide the following: the name and address of the voter, his date of birth, sex, photograph, thumbmark, and the number of precinct where he is registered, the signature of the voter and the chairman of the Election Registration Board and the voters identification number (VIN). Section 26. Voters Identification Number (VIN). The Commission shall assign every registered voter a voters identification number (V1N) consisting of three parts, each separated by a dash. For example: 7501 -00191 -C145BCD. a) Part 1: Current Address of the Voter 1) The first two digits 75 stand for the province; and 2) The last two digits, 01, stand for the city, municipality, or a district, particularly in Manila. The code assignment for provinces, cities and municipalities shall follow the Urban Code devised by the National Census and Statistics Office (NCSO). b) Part II: Current Precinct Assignment of the Voter 162

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 1) The first four digits, 0019, stand for the permanent number of the precinct where the voter is currently assigned: and 2) The letter indicates whether it is a mother or a daughter precinct. The number assigned to the precinct in every city or municipality shall be permanent but the voter may transfer his precinct number. The VIN reflects the current precinct assignment of the voter. c) Part III: Permanent Birth and Name Code Unique to the Voter 1) The letter, C, stands for the month, i.e., A for January, B for February, and so forth; 2) The next two digits, 14, stand for the date of birth; 3) The next two digits, 51, stand for the year of birth; and 4) The last three letters, BCD, stand for the name code, i.e., Bayani Cruz Davide. The last three letters shall stand for the first letter of the first name, the middle name, and the last name in that order. The Commission shall ensure that Part III hereof of the voters identification number (VIN) shall be permanent and unique to each voter. If necessary, the Commission may expand and modify the same. d) The combined birth and name code is assigned during the lifetime of every voter. Upon transfer of the voter to another precinct, the first two parts of the VIN shall change. Petitions for Exclusion and Inclusion R.A. 8189, Section 19. Power to Administer Oath and Issue Summons. For purposes of determining the right of the applicants to be registered as a voter, the Election Officer shall have the power to administer oath, issue subpoena duces tecum and swear in witnesses. The fees and expenses incidental thereto shall be paid in advance by the party in whose behalf the summons is issued.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS In cases of approval and disapproval, any aggrieved party may file a petition for exclusion or inclusion, as the case may be, the proper Municipal or Metropolitan Trial Court as provided for in this act. Section 129. Action by the board of election inspectors. - Upon receipt of the voter's affidavit, the board of election inspectors shall examine the data therein. If it finds that the applicant possesses all the qualifications and none of the disqualifications of a voter, he shall be registered. Otherwise, he shall not be registered. The name and address of each registered voter shall, immediately upon his registration, be entered in the proper alphabetical group in the list after which the voter identification card shall be issued to the voter. Section 130. Provincial central file of registered voters. - There shall be a provincial central file of registered voters containing the duplicate copies of all approved voter's affidavits in each city and municipality in the province which shall be under the custody and supervision of the provincial election supervisor. The applications shall be compiled alphabetically by precincts so as to make the file an exact replica of the book of voters in the possession of the election registrar. Should the book of voters in the custody of the election registrar be lost or destroyed at a time so close to the Election Day that there is no time to reconstitute the same, the corresponding book of voters in the provincial file shall be used during the voting. Section 131. Repealed by R.A. 8189 Section 24 Section 24. National Central File. There shall be a national central file under the custody of the Commission in Manila consisting of the third copies of all approved voter registration records in each city or municipality. It shall be compiled by precinct in each city/municipality and arranged alphabetically by surname so as to make the file a replica of the book of voters in the possession of the Election Officer. Thereafter a national list shall be prepared following the alphabetical arrangements of surnames of voters. There shall be a national file consisting of the computerized voters list (CVL), both in print and in diskette, submitted by the Election Officers in each city and municipality concerned, under the custody of the Commission in Manila. The computerized voters list shall make use of a single and uniform computer program that will have a detailed sorting capability to list voters alphabetically by the precincts where they 164

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS vote, by the barangays, municipalities, cities or provinces where they reside and by their voters identification number (VIN). Deactivation of Registration Section 27. Deactivation of Registration. The board shall deactivate the registration and remove the registration records of the following persons from the corresponding precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause or causes of deactivation: a) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence as certified by the clerks of courts of the Municipal/Municipal Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan; b) Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law; Provided, That he shall regain his right to vote automatically upon expiration of five (5) years after service of sentence; c) Any person declared by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration of a proper authority that such person is no longer insane or incompetent; d) Any person who did not vote in the two (2) successive preceding regular elections as shown by their voting records. For this purpose, regular elections do not include the Sangguniang Kabataan (SK) elections; e) Any person whose registration has been ordered excluded by the Court; and f) Any person who has lost his Filipino citizenship. For this purpose, the clerks of court for the Municipal/Municipal Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan shall furnish the Election Officer of the city or municipality 165

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS concerned at the end of each month a certified list of persons who are disqualified under paragraph (a) hereof, with their addresses. The Commission may request a certified list of persons who have lost their Filipino Citizenship or declared as insane or incompetent with their addresses from other government agencies. The Election Officer shall post in the bulletin board of his office a certified list of those persons whose registration were deactivated and the reasons therefor, and furnish copies thereof to the local heads of political parties, the national central file, provincial file, and the voter concerned. Reactivation of Registration Section 28. Reactivation of Registration. Any voter whose registration has been deactivated pursuant to the preceding Section may file with the Election Officer a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist any time but not later than one hundred twenty (120) days before a regular election and ninety (90) days before a special election. The Election Officer shall submit said application to the Election Registration Board for appropriate action. In case the application is approved, the Election Officer shall retrieve the registration record from the inactive file and include the same in the corresponding precinct book of voter. Local heads or representatives of political parties shall be properly notified on approved applicants. Cancellation of Registration Section 29. Cancellation of Registration. The Board shall cancel the registration records of those who have died as certified by the Local Civil Registrar. The Local Civil Registrar shall submit each month a certified list of persons who died during the previous month to the Election Officer of the place where the deceased are registered. In the absence of information concerning the place where the deceased is registered, the list shall be sent to the Election Officer of the city or municipality of the deceaseds residence as appearing in his death certificate. In any case, the Local Civil Registrar shall furnish a copy of this list to the national central file and the proper provincial file. The Election Officer shall post in the bulletin board of his office a list of those persons who died whose registrations were cancelled, and furnish 166

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS copies thereof to the local heads of the political parties, the national central file, and the provincial file. Section 132. Preservation of voter's affidavits. - A copy of the affidavit of each voter shall be kept by the board of election inspectors until after the election when it shall deliver the same to the election registrar together with the copies of the list of voters and other election papers for use in the next election. The election registrar shall compile the voter's affidavits by precinct alphabetically in a book of voters. The other two copies shall be sent by the board of election inspectors on the day following the date of the affidavit to the office of the provincial election supervisor and the Commission in Manila. The provincial election supervisor and the Commission shall respectively file and preserve the voter's affidavits by city and municipality and in alphabetical order of their surnames. The fourth copy shall be given to the voter as evidence of his registration. Section 133. Columns in the list of voters. - The list of voters shall be arranged in columns as follows: In the first column there shall be entered, at the time of closing of the list before the election, a number opposite the name of each voter registered, beginning with number one and continuing in consecutive order until the end of the list. In the second column, the surnames of the registered voters shall be written in alphabetical order followed by their respective first names, without abbreviations of any kind. In the third column, the respective residences of such persons with the name of the street and number, or, in case there be none, a brief description of the locality or place. In the fourth column, shall be entered the periods of residence in the Philippines and in the city or municipality. In the fifth column, there shall be entered on the day of the election the numbers of the ballots which were given successively to each voter. In the sixth column, the voter shall stamp on the day of the election the mark of the thumb of his right hand and under said mark his signature. And in the seventh column, the signature of the chairman of the board of election inspectors who has handed the ballot to the voter. It will be sufficient that the fifth, sixth, and seventh columns shall be filled in the copy of the list under the custody of the board of election inspectors which shall see to it that the thumb mark is stamped plainly. Section 134. Certificate of the board of election inspectors in the list of voters. - Upon the adjournment of each meeting for the registration of voters, the board of election inspectors shall close each alphabetical group of surnames of voters by writing the dates on the next line in blank, which shall be forthwith signed by each member, and, before adding a new name on the same page at the next meeting, it shall write the following: "Added at the _ _ _ meeting" specifying if it is the second third or fourth meeting of the board, as the case may be. If the meeting adjourned is the last one for the registration of voters, the board shall, besides closing each alphabetical group of voters as above provided, add at the end of the list a 167

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS certificate (a) of the corrections and cancellations made in the permanent list, specifying them, or that there has been none, and (b) of the total number of voters registered in the precinct. Section 135. Publication of the list. - At the first hour of the working day following the last day of registration of voters, the poll clerk shall deliver to the election registrar a copy of the list certified to by the board of election inspectors as provided in the preceding section; another copy, also certified, shall be sent to the provincial election supervisor of the province, and another, likewise certified, shall be sent to the Commission, in whose offices said copies shall be open to public inspection during regular office hours. On the same day and hour, the poll clerk shall also post a copy of the list in the polling place in a secure place on the door or near the same at a height of a meter and a half, where it may be conveniently consulted by the interested parties. The chairman, poll clerk and the two members of the board of election inspectors shall each keep a copy of the list which may be inspected by the public in their residence or office during regular office hours. Immediately after the meeting for the closing of the list, the poll clerk shall also send a notice to the election registrar, provincial election supervisor and the Commission regarding the changes and the numbering above referred to, to be attached to the copy of the list under their custody. Section 136. Challenge of right to register. - Any person applying for registration may be challenged before the board of election inspectors on any registration day be any member, voter, candidate, or watcher. The board shall then examine the challenged person and shall receive such other evidence as it may deem pertinent, after which it shall decide whether the elector shall be included in or excluded from the list as may be proper. All challenges shall be heard and decided without delay, and in no case beyond three days from the date the challenge was made. After the question has been decided, the board of election inspectors shall give to each party a brief certified statement setting forth the challenge and the decision thereon. Section 137. Power of the board of election inspectors to administer oaths and issue summons. - For the purpose of determining the right of applicants to be registered as voters in the list, the board of election inspectors shall have the same power to administer oaths, to issue subpoena and subpoena duces tecum and to compel witnesses to appear and testify, but the latter's fees and expenses incident to the process shall be paid in advance by the party in whose behalf the summons is issued.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 138. Jurisdiction in inclusion and exclusion cases. - The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Decisions of the municipal or metropolitan trial courts may be appealed directly by the aggrieved party to the proper regional trial court within five days from receipt of notice thereof, otherwise said decision of the municipal or metropolitan trial court shall become final and executory after said period. The regional trial court shall decide the appeal within ten days from the time the appeal was received and its decision shall be immediately final and executory. No motion for reconsideration shall be entertained by the courts.

JURISPRUDENCE

CANICOSA vs. COMELEC G.R. No. 120318, December 5, 1997 FACTS: Ricardo Boy Canicosa and Severino Lajara were candidates for Mayor in Calamba, Laguna during the 8 May 1995 elections. Lajara was proclaimed winner by the Municipal Board of Canvassers. On 15 May Canicosa filed with the COMELEC a Petition to Declare Failure of Election and to Declare Null and Void the Canvass and Proclamation because of alleged widespread frauds and anomalies. However, the COMELEC en banc dismissed the petition on the ground that the allegations therein did not justify a declaration of failure of election. ISSUE: Whether or not a COMELEC division should have first heard the petition before deciding on it en banc on a motion for reconsideration. HELD: NO. Section 3, Article IX-C applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative functions. Moreover, it is expressly provided in Rule 27, Section 7 of the COMELEC Rules of Procedure that any party dissatisfied with the ruling of the board of canvassers shall have a right to appeal to the COMELEC en banc. Questions as to whether elections have been held or whether certain returns were falsified or manufactured and therefore should be excluded from the canvass do not involve the right to vote. Such questions are properly within the administrative jurisdiction of COMELEC, hence, may be acted upon directly by the COMELEC en banc without having to pass through any of its divisions. There are only three instances where a failure of election may be declared, namely: 169

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS a. The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; b. The election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or c. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes. The question of inclusion or exclusion from the list of voters involves the right to vote which is not within the power and authority of COMELEC to rule upon. The determination of whether one has the right to vote is a justiciable issue properly cognizable by our regular courts. It is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by Division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional. The COMELEC exercises direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. Its power to direct supervision and control includes the power to review, modify, or set aside any act of such national and local officials. It exercises immediate supervision over the members of the boards of election inspectors and canvassers. Its statutory power of supervision and control includes the power to revise, reverse, or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be required pursuant to law.

Section 139. Repealed by R.A. 8189 Section 34 Section 34. Petition for Inclusion of Voters in the List. Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except one hundred five (105) days prior to a regular election or seventy-five (75) days prior to a special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. The petition shall be decided within fifteen (15) days after its filing.

170

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS If the decision is for the inclusion of voters in the permanent list of voters, the Board shall place the application for registration previously disapproved in the corresponding book of voters and indicate in the application for registration the date of the order of inclusion and the court which issued the same. Section 140. Repealed by R.A. 8189 Section 37 and Section 38 Section 37. Voter Excluded Through Inadvertence or Registered with an Erroneous or Misspelled name. - Any registered voter who has not been included in the precinct certified list of voters or who has been included therein with a wrong or misspelled name may file with the Board an application for reinstatement or correction of name. If it is denied or not acted upon, he may file on any date with the proper Municipal Circuit, Municipal or Metropolitan Trial Court a petition for an order directing that his name be entered or corrected in the list. He shall attach to the petition a certified copy of his registration record or identification card or the entry of his name in the certified list of voters used in the preceding election, together with the proof that his application was denied or not acted upon by the Board and that he has served notice to the Board. Section 38. Voters Excluded through Inadvertence or Registered with an Erroneous or Misspelled Name. - Any registered voter whose registration record has not been included in the precinct book of voters, or whose name has been omitted in the list of voters or who has been included therein with a wrong or misspelled name may file with the Board an application for inclusion of his record, or reinstatement or correction of his name as the case may be. If it is denied or not acted upon, the voter may file on any date with the proper Municipal or Metropolitan Trial Court a petition for an order directing that the voters name be entered or corrected in the list. The voters shall attach to the petition a certified true copy of his registration record or identification card or the entry of his name in the list of voters used in the preceding election, together with proof that his application was denied or not acted upon by the Board and that he has served notice thereof to the Board. Annulment at Book of Voters Section 39. Annulment at Book of Voters. The Commission shall, upon verified petition of any voter or election officer or duly registered political party, and after notice and hearing, annul any book of voters that is not prepared in accordance with the provisions of this Act or was prepared through fraud, bribery, forgery, impersonation, intimidation, force or any similar irregularity, or which contains data that are statistically 171

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS improbable. No order, ruling or decision annulling a book of voters shall be executed within ninety (90) days before an election. Section 141. Change of name of registered voter. - Any previously registered voter whose name has been changed by reason of marriage or by virtue of a court order may request the board of election inspectors during any of its meetings held under this Article that his registration in the list be recorded under his or her new name. Section 142. Repealed by R.A. 8189 Section 35 Section 35. Petition for Exclusion of Voters from the List. Any registered voters, representative of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter at any time except one hundred (100) days prior to a regular election or sixty-five (65) days before a special election. The petition shall be accompanied by proof of notice to the Board and to the challenged voter and shall be decided within ten (10) days from its filing. If the decision is for the exclusion of the voter from the list, the Board shall, upon receipt of the final decision, remove the voters registration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place the record in the inactive file. Section 143. Repealed by R.A. 8189 Section 32 Section 32. Common Rules Governing Judicial, Proceedings in the Matter of Inclusion, Exclusion, and Correction of Names of Voters. a) Petition for inclusion, exclusion or correction of names of voters shall be filed during office hours; b) Notice of the place, date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon filing of the petition. Service of such notice may be made by sending a copy thereof by personal delivery, by leaving it in the possession of a person of sufficient discretion in the residence of the challenged voter, or by registered mail. Should the foregoing procedures not be practicable, the notice shall be posted in the bulletin board of the city or municipal hall and in two (2) other conspicuous places within the city or municipality; c) A petition shall refer only to one (1) precinct and implead the Board as respondents; 172

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS d) No costs shall be assessed against any party in these proceedings. However, if the court should find that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses; e) Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence; f) The decision shall be based on the evidence presented and in no case rendered upon a stipulation of facts. If the question is whether or not the voter is real or fictitious, his non-appearance on the day set for hearing shall be prima facie evidence that the challenged voter is fictitious; and g) The petition shall be heard and decided within ten (10) days from the date of its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days from receipt of the appeal. In all cases, the court shall decide these petitions not later than fifteen (15) days before the election and the decision shall become final and executory.

JURISPRUDENCE

MERCADO, et al. vs. JUDGE DYSANGCO, and ESTEBAN A.M. No. MTJ-00-1301, July 30, 2002 FACTS: The complainants alleged that prior to the Barangay Elections of May 12, 1997, 48 persons (9 were supporters of Mercado, while 39 were supporters of Gonzales) filed with the Municipal Circuit Trial Court of Natividad-Llanera, Nueva Ecija a petition for inclusion in the voters list. Mercado and Gonzales were candidates for the position of Barangay Chairman of Kabulihan, Gen. Natividad, Nueva Ecija. Consequently, complainants filed an opposition to the petition of the 39 supporters of Gonzales. Several hearing dates were set. The first three hearings were cancelled due to the absence of either Judge Dysangco or petitioners counsel. The May 8 hearing proceeded, the 9 petitioners (Mercados supporters) presented their evidence. The 39 petitioners (Gonzales supporters) requested the postponement of the hearing to May 9. However, they did not appear the following day, thus, the Judge dismissed their petitions. On May 10, the Judge assured the complainants that he did not issue an order for the inclusion of the 39 Mercados supporters in the voters list. However, on the 173

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS day of the election, they were surprised to find the 34 (out of the 39 petitioners) with an order signed by the Judge and attested by the clerk of court, directing their inclusion in the voters list. On May 29, 1997, the complainants filed a complaint against the respondents for aiding the flying voters in violating the Election Laws and influencing the result of the Barangay Elections in Kabulihan, Gen. Natividad, Nueva Ecija. On January 3, 2000, Executive Judge Ballutay found that the act of the Judge Dysangco of ordering the inclusion of the 34 petitioners on the voters list and allowing them to vote based on the strength of personal interview conducted by the Judge without the presence of the counsel, is not only reprehensible, but also denial of due process. He recommended that the Judge be fined P5,000 with a warning that a repetition will be dealt with more severely and on the part of Esteban, the Clerk of Court, she must be reprimanded and warned that she should be more careful in her actuation and she should act strictly in accordance with her duties. The Court Administrator concurred with the observation of Executive Judge Ballutay, however, the liability of the Clerk of Court was not sufficiently established. Accordingly, the SC dismissed the complaint against Esteban. RULING: Section 143 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, explicitly lays down the procedure governing petitions for inclusion, exclusion, and correction of names of voters. The clear mandate of the law is for the municipal judge a) to decide the petition on the basis of the evidence presented, b) to conduct a hearing thereon, and c) to render a decision within 10 days from the filing of the petition. Respondent judge, unfortunately, does not know the above legal provisions. The respondent judge claimed that he personally interviewed 34 petitioners on April 25, 1997 and that this was the basis of his Order. And, second, he issued the Order beyond the ten-day period required by Section 143. The petitions of the 39 Gonzales supporters were filed prior to April 17, 1997, yet the Order granting them was issued only on May 9, 1997. In releasing the Order two days before the Barangay Elections, he effectively deprived the complainants of their right to appeal to the Regional Trial Court. Clearly, they were deprived of their right to due process.

Section 144. Repealed by R.A. 8189 Section 36 Section 36. Verification of Registered Voters. The Election officer shall, in order to preserve the integrity of the permanent list of voters, file exclusion proceedings when necessary, and verify the list of the registered voters of any precinct by regular mail or house to house canvass. 174

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Commission may enlist the help of representatives of political parties and deputize non-government organizations (NGOs), civic organizations and barangay officials to assist in the verification and house to house canvass of registered voters in every precinct. Section 145. Annulment of permanent lists of voters. - Any book of voters not prepared in accordance with the provisions of this Code or the preparation of which has been effected with fraud, bribery, forgery, impersonation, intimidation, force, or any other similar irregularity or which list is statistically improbable may, upon verified petition of any voter or election registrar, or duly registered political party, and after notice and hearing, be annulled by the Commission: Provided, That no order, ruling or decision annulling a book of voters shall be executed within sixty days before an election.

Amended by Section10 of R.A. 7166 hereof: Section 10. Annulment of the List of Voters. - Any book of voters the preparation of which has been affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar irregularity or which is statistically improbable may be annulled, after due notice of a verified complaint: Provided, That, no order, ruling or decision annulling a book of voters shall be executed within sixty (60) days before an election. Rule 31 of the COMELEC Rules of Procedure Section 1. Grounds. - Any book of voters not prepared in accordance with the provisions of law, or the preparation of which has been effected with fraud, bribery, forgery, impersonation, intimidation, force, or any other similar irregularity, or which list is statistically improbable, may be annulled by the Commission. Section 2. Petition to Annul. - Any voter, election registrar, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to annul a permanent list of voters. Section 3. Notice of Hearing. - Within three days from the filing of the petition, the Clerk of Court concerned shall make a report of the petition of the Commission which shall determine either to give it due course or to deny the same. If the Commission shall decide to give it due course, an Order to that effect, fixing the date of hearing, shall be published in a newspaper of general circulation in the province or city concerned once a week for two consecutive weeks, 175

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the last of which shall not be less than ten days prior to the date of hearing. Copies of the order shall likewise be furnished to all registered political parties, organization or coalition or political parties in the province or city concerned. Expenses for the publication and notices shall be borne by the petitioner, which as preliminary estimated, shall be deposited with the Commission. If the petitioner is an Election Registrar the expenses for publication shall be borne by the Commission. Section 4. Time to File Opposition. - On or before the date set for the hearing, any interested party may file a verified opposition to the petition. Section 5. Summary Proceedings. - The petition may be heard summarily. Section 6. Delegation of Hearing and Reception of Evidence. - The hearing and reception of evidence may be delegated by the Commission to any of its officials who are members of the Philippine Bar. Section 7. Prohibition of Execution of Decision. - Any provision of these Rules to the contrary notwithstanding, a decision to annul a book of voters shall not be executed within sixty (60) days before an election. Section 146. Repealed by R.A. 8189 Section 40 Section 40. Reconstitution of Lost or Destroyed Registration Records. The Commission shall reconstitute all registration records which have been lost or destroyed by using the corresponding copies of the provincial or national central files. In case of conflict the Commission shall determine which file shall be used for reconstitution purposes. If this is not feasible, the Commission shall conduct a general registration of voters in the affected area: Provided, that there is a scheduled election before the next scheduled general registration of voters in accordance with the Omnibus Election Code. All such voters shall retain their voters identification number. Reconstituted forms shall be clearly marked with the word "reconstituted." It shall be the duty of the Election Officer to immediately report to the Commission any case of loss or destruction of registration record in his custody.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The reconstitution of any lost or destroyed registration records shall not affect the criminal liability of any person who is responsible for such loss or destruction. Section 43. Computerization at Permanent List of Voters. - A permanent and computerized list arranged by precinct, city or municipality, province and region shall be prepared by the Commission. Thereafter, another list shall be prepared consisting of the names of the voters, arranged alphabetically according to surnames. The computer print-outs of the list of voters duly certified by the Board are official documents and shall be used for voting and other election related purposes as well as for legitimate research needs. The total number of voters in the permanent list shall be the basis for the printing of the official ballots by the Commission. Section 147. Examination of registration records.- All registration records in the possession of the city or municipal election registrar, the provincial election supervisor, and the Commission shall, during regular office hours, be open to examination by the public with legitimate inquiries for purposes of election. Law enforcement agencies shall, upon prior authorization by the Commission, have access to said registration records should the same be necessary to, or in aid of, their investigative functions and duties, subject to regulations promulgated by the Commission. Comment: This is to assure the public of the transparency and integrity of the Commission. Section 148. List of voters.- Fifteen days before the date of the regular election or special election, referendum or plebiscite, the board of election inspectors must post the final list of voters in each precinct with each and every page thereof duly signed and subscribed and sworn to by the members of the board of election inspectors and that failure to comply with this provision will constitute an election offense. Any candidate or authorized representative of an accredited political party, upon formal request made to an election registrar, shall be entitled to a certified copy of the most recent list of voters in any precinct, municipality, city or province, upon payment of a reasonable fee as may be prescribed by the Commission. R.A. No. 8189 or The Voters Registration Act of 1996 amended the provisions in Article XII on Registration of Voters. 177

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Book of Voters, once it is sealed, cannot be opened until election day. This means that no Voters Registration Record (VRR) may be added or removed from it after it is sealed.

DISCUSSIONS

Registration of Voters Registration is a condition precedent to the exercise of the right of suffrage. (YRA vs. Abano, G.R. L-30187, November 15, 1928). The State has adopted a method to systematize registration in order to establish a clear, complete, permanent and updated list of voters, described hereunder: The act of registration is done by a qualified voter by accomplishing and filing a sworn application for registration before the Election Officer of the city or municipality where he resides. An application for registration duly approved by the Election Registration Board is called a Registration Record while a compilation of Registration Records per precinct is called a Book of Voters. The Board of Election Inspectors use the Book of Voters as reference in case questions arise on the list of registered voters certified by the Election Registration Board and posted in the precincts for use on election day. The State recognizes that the right of suffrage is in line with the State policy of people empowerment. Congress mandated a continuing registration of voters, daily, during office hours in the office of the Election Officer, (Bautista vs. COMELEC, 414 SCRA 299, G.R. Nos. 154796-97, October 23, 2003), except during the period starting 120 days before a regular election and 90 days before a special election (Kabataan Party List vs. COMELEC , GR No. 189868, Dec. 15, 2009) to give COMELEC enough time to make all the necessary preparations with respect to the coming elections. Moreover, COMELEC cannot be compelled to conduct a special registration of voters because it is not a ministerial act but a discretionary one. (AKBAYAN Youth vs. COMELEC, GR No. 147066, 26 March 2001) Who are qualified to register 1. Citizens of the Philippines Filipino citizenship must be proven to the satisfaction of the court. Legitimate children follow the citizenship of the father while illegitimate children under the parental authority of the mother, will follow her nationality (Carlos T. Go, Sr. vs. Luis T. Ramos/ Hon. Alipio Fernandez vs. Jimmy T. Go; GR Nos. 167569/570 and 171946 Sept. 4, 2009) 178

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 2. Those not disqualified by law to register. Persons disqualified are the following: a. Those sentenced by final judgment to suffer imprisonment of not less than one (1) year, not having received pardon or amnesty . However, the right to vote shall be reacquired upon expiration of five years after serving sentence. b. Those adjudged by final judgment by Court or Tribunal of having committed rebellion, sedition, violation of firearms or any crime against national security, unless restored to his full civil and political rights in accordance with law. The right to vote shall be reacquired after the lapse of five years after service of sentence. c. Insane or incompetent persons declared as such by competent authority unless later declared by proper authority that he/she is no longer insane or incompetent d. Section 5 of Republic Act 9189 also provides disqualification for those who have lost their Filipino citizenship in accordance with Philippine laws, those who have renounced their Philippine citizenship or those who have pledged allegiance to a foreign country and recognized as such by the host country, unless he/she executes an affidavit declaring that he/she shall resume physical permanent residence in the Philippines not later than 3 years from the approval of his/her registration to vote. (Makalintal vs. COMELEC, GR No. 157013 10 July 2003 ) & ( Nicolas- Lewis vs. COMELEC G.R. No. 162759, 4 August 2006) 3. Those 18 years old and above 4. Those who have resided in the Philippines for at least one year 5. Resident in the City or Municipality where he proposes to vote for at least 6 months immediately preceding the election. In Election Law, the term residence which shows intention to reside in a fixed place with personal presence in that place and conduct indicative of such intention , has the same meaning as domicile which is a fixed permanent residence to which one who is absent for business or pleasure intend to return. (Philip G. Romualdez vs. RTC Br. 7, GR No. 104960, Sept. 14, 1993), (Perez vs. COMELEC, G.R. No. 133944, 317 SCRA 641 (1999) and (Domino vs. COMELEC, G.R. No. 134015, 19 July 1999) An illiterate or disabled voter , whose disability to read and write renders him unable to prepare for himself his application for registration (such fact must be indicated in the Voters Registration Record), his voters affidavit maybe prepared by any relative within the fourth civil degree of consanguinity or affinity or by any member of the Board of Election Inspectors who shall prepare the Affidavit in accordance with the data supplied by the applicant (1987 Bar Question No. XII) With respect to the Automated Election System, a person physically impaired to use the AES, maybe assisted in feeding the ballot into the PCOS machine. 179

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Registration Procedure During office hours on any date within the registration period set by the COMELEC , a qualified voter shall personally go to the office of the Election Officer of the city or municipality where he resides Accomplish the COMELEC Application Form for Registration in 3 copies before the Election Officer. The Application Form shall have the following data : the applicants name, surname, middle name and/or maternal surname; sex; date and place of birth; citizenship; civil status and if married, name of spouse; profession, occupation or work; periods of residence in the Philippines and in the place of registration; exact address with street and home no.; statement that the applicant possess all the qualifications of a voter and a statement that the applicant is not a registered voter of any precinct. The applicant shall then affix his signature on the application form three times (3) and his clean and legible left and right thumbprints and his 4 ID pictures , to be taken at the expense of the COMELEC. The Election Officer sets a hearing for the applications for registration, notice of which shall be posted in the City or Municipal bulletin board and in the office of the Election Officer at least one week before the hearing. Copies thereof shall be given to the applicant, representatives of political parties and other groups which actively participate in the electoral process in the city or municipality. Hearing and processing of registration shall be on quarterly basis so the Election Registration Board shall convene on the 3rd Monday of April, July, October and January of every calendar year, except in an election year to conform with the 120 days prohibitive period before election day. The Board shall adjourn from day to day if all accepted applications can be processed within one day. An applicants application for inclusion in the Voters list can be challenged by any voter, candidate or representative of a registered political party. The challenge shall be in writing, under oath and attached to the application, with proof of notice to the applicant and the challenger. It should be filed not later than the second Monday of the month when it is scheduled to be heard by the Election Registration Board. The hearing of the challenge shall be on the 3rd Monday of the month. During the hearing, the Election Officer shall receive evidence for or against the applicant. If there is opposition, the applicant should appear in the hearing to refute evidence presented against his registration. The decision is rendered before the end of the month and any party aggrieved in cases of approval or disapproval of the voters application, may file a petition for exclusion or inclusion with the proper Municipal or Metropolitan Trial Court. [Ozamis vs. Zosa, 34 SCRA 424 (1970)]

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Disqualifications A. If sentenced by final judgment to suffer imprisonment for not less than one (1) year and such disability was not removed by plenary pardon or has not been granted amnesty. However, any person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5 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 or any crime against national security: 1. UNLESS restored to his full civil and political rights in accordance with law. 2. However, he shall regain his right to vote automatically upon expiration of 5 years after service of sentence. C. Insane or incompetent persons as declared by competent authority.

Jurisdiction in Inclusion/Exclusion cases A. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any time except 105 days before regular election or 75 days before special election B. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision. C. RTC will decide the appeal within 10 days. Decision is final and executory. D. Note: Relate this to Article IX of the Constitution which provides that the COMELEC has no jurisdiction over questions involving the right to vote. E. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days before special election.

Posting of the Certified List of Voters The Election Registration Board shall prepare and post the certified list of voters , along with a certified list of deactivated voters by precinct per barangay, ninety days before a regular election and 60 days before a special election. The list shall be posted in the office of the Election Officer and in the bulletin board of each city or municipal hall. Two certified true copies of said list shall be given to the Board of Election Inspectors for posting in the polling place and reference 181

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS on election day. Subject to reasonable regulations of the COMELEC, the public and the duly authorized representatives of a registered political party or bonafide candidate have the right to inspect or copy the list of registered voters. Sealing of the Precinct Book of Voters Fifteen days before the start of the campaign period, the Election Registration Board shall inform all registered political parties and members of the Board of Election Inspectors to inspect and verify the completeness of the voters registration records for each precinct compiled in the Book of Voters. After certification of completeness is issued by the Board of Election Inspectors and party representatives, the Election Registration Board shall seal the Book of Voters and take custody of the same until election day when the Election Officer will deliver the sealed Book of Voters to the Chairman of the Board of Election Inspectors. After Notice and Hearing, a Book Of Voters proven to be prepared through irregularities like impersonation, forgery, bribery, fraud or intimidation, with data that are statistically improbable, shall be annulled by COMELEC before 90 days prior to an election. In case of loss or destruction of Registration Records, either the provincial or national central files shall be used for reconstitution purposes. If not feasible, a general registration of voters shall be conducted by the COMELEC in the area affected. In accordance with the Omnibus Election Code, this is done if there is a scheduled election before the next scheduled general registration of voters. Persons responsible for loss or destruction of the registration of voters shall be criminally liable for such action. Grounds when the List of Voters may be altered: (This list is Exclusive) 1. 2. 3. 4. 5. 6. Deactivation/ Reactivation Exclusion/ Inclusion Cancellation of Registration in case of Death New voters Annulment of Book of Voters Transfer of Residence

Disabled or Illiterate Voters No voter who is illiterate or disabled shall not be allowed or deprived of his right to vote based on such ground alone. Illiterate or disabled persons maybe assisted in the preparation of his ballot by a relative, by affinity or consanguinity, within the fourth (4th) civil degree, in the absence of such by any person who belongs to the same household or any member of the BEI.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS It must be noted however that such voter cannot vote as an illiterate or disabled and be assisted by another person, unless it is indicated in his registration record that such person is illiterate or disabled and that such fact appears in the Election Day Computerized Voters List (EDCVL) and the VRR. The person thus chosen must only do so not more than three (3) times with the only exception of the non-party member of the BEI who may assist any number of illiterate or disabled persons. Any violation of these provisions shall be considered as an election offense. With respect to the feeding of the ballots in the PCOS Machine, a person who is unable to feed the ballot into the PCOS Machine may likewise be assisted in feeding his ballot in the machine. During the process of feeding the assistant must make sure that the contents of the ballot are not exposed to the view of other people during the process of feeding.

Challenging Illegal or Flying Voters 1. Persons who can Challenge Illegal Voters: a. Voters b. Accredited Watchers 2. Grounds for Challenging the Voter a. Identity the BEI shall resolve the issue by requiring a valid identification from the alleged illegal voter. If he can present a valid identification and his name appears in the Election Day Computerized Voters List (EDVCL) he should be allowed to vote, subject to the written protest of the watcher should he insist on protesting the voters identity. Barangay certifications and Community Tax Certificates (Cedula) are not acceptable for only government issued identification cards are allowed. He, the voter is not required to present his voters affidavit on the day of the election if he can be identified by any other manner as provided by the election code or under the instructions of COMELEC under Resolution No. 8739. b. Other Illegal Acts a voter maybe challenged if he has received or expects to receive, has paid, offered, or promised to pay, has contributed, offered or promised to contribute money, or anything of value as consideration for his vote or for another persons vote, or if he has received a promise or has made a promise to influence the giving or withholding of any to such voter, or if he has made a bet or is directly or indirectly interested in a bet which depends in the result of the election. Before the challenged voter is allowed to cast his vote he must first take an oath before the BEI that he has not in any way shape or form committed any of the acts as alleged by the 183

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS challenger. The challenge shall be dismissed after the oath. However if the voter refuses to take the oath and the challenge is sustained then such voter shall be prohibited from voting. BAR QUESTION 1. A, while of legal age and of sound mind, is illiterate. He has asked you for advice on how he can vote in the coming elections for his brother, who is running for mayor. This will be the first time that A will vote and he has never registered as a voter before. What advice will you give him on the procedure that he needs to follow in order to be able to vote (1987 Bar Examinations Question 12)? Answer: The constitution provides that until the congress shall have provided otherwise. Illiterate and disabled voters shall be allowed to vote under existing laws and regulations (Art. V Sec. 2). It is necessary for any qualified voter to register in order to be allowed to vote. In the case of illiterate and disabled voters, their voters affidavit may be prepared by any relative within the fourth (4th) civil degree of consanguinity or affinity or by any member of the household or by any member of the BEI who shall prepare the affidavit in accordance with the data supplied by the applicant. (Answer Supplied by the U.P Law Center) Let us suppose that congress enacted a law which amended the Omnibus Election Code (B.P 881) (particularly secs. 138, 139, 142, 143) by vesting in the COMELEC the jurisdiction over inclusion and exclusion cases filed by voters, instead of in the courts (MTC, then RTC). 2. Is the law valid or not, why? Answer: The law granting the COMELEC jurisdiction over the inclusion or exclusion cases is unconstitutional. Under Sec. 2(3), Art. IX-C of the Constitution, the COMELEC cannot decide the right to vote, which refers to the inclusion and exclusion of voters. Under Sec. 2(6), Art. IX-C of the Constitution , it can only file petitions in court for inclusion or exclusion of voters. Grounds for Deactivation of Registration The registration records of persons who are covered by the disqualification rules discussed earlier and those who did not vote in two successive regular elections as shown by their voting records or those who lose 184

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS their Filipino citizenship or whose registration has been ordered excluded by the Court , shall be placed in the inactive file. Not later than 120 days before a regular election and 90 days before a special election, any deactivated voter may file with the Election Officer a sworn application for reactivation thru an affidavit stating that the grounds for deactivation no longer exist and shall be submitted to the Election Registration Board for appropriate action. In case the Election Registration Board approves the application, his registration record will be retrieved from the inactive file and included in the precinct book of voters. Cancellation of Registration The Local Civil Registrar shall submit monthly to the Election Officer a certified list of persons who died in the previous month. The list of dead persons whose registration were canceled shall be posted in the office of the Election Officer and copies sent to the local heads of the political parties, the provincial file and the national central file. If any voter was unintentionally excluded from the certified list of voters or whose name was misspelled therein, he/she may file an application for reinstatement for correction of name. If denied or not acted upon, the voter can file on any date with Municipal/ Metropolitan Trial Court, a petition for an order directing that the voters name be corrected or entered in the list. The petition should include a certified true copy of his registration record and ID Card as well as the list of voters in the preceding election with his name on it and proof that his application for Inclusion /Exclusion of name was denied or was not acted upon by the Board. [Domino vs. COMELEC, 310 SCRA 546, G.R. No. 13401 (July 19, 1999)]

185

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XIII PRECINCTS AND POLLING PLACES

Section 8 of R.A. 7166 amended Section 149 hereof: Section 8. Precincts and their Establishment.- Any provision of law to the contrary notwithstanding, where it is not practicable to divide the precinct by territory, the Commission may adjust or split the precinct by assigning the registered voters therein alphabetically and equitably among the adjusted or split precincts: Provided, That, the polling places of said precincts shall be in the same building or premises. The Commission may resort to this only when necessary and the circumstances warrant. Section 150. Arrangements of election precincts.- (a) Each election precinct shall have, as far as possible not more than three hundred voters and shall comprise, as far as practicable, contiguous and compact territory. (b) When it appears that an election precinct contains more than three hundred voters, the Commission shall, in the interest of orderly election, and in order to facilitate the casting of votes, be authorized to divide a precinct not later than one week after the last day of registration of voters. But the polling place of all the precincts created thereby shall be located in the same building or compound where the polling place of the original precinct is located, and if this be not feasible, in a place as close as possible to the polling place of the original precinct: Provided, however, That the polling place of the new precinct may be located elsewhere upon written petition of the majority of the voters of the new precinct: Provided, further, That when a precinct is divided into two or more precincts, the registered voters shall be included in the precinct wherein they reside. Every case of alteration of a precinct shall be duly published by posting a notice of any change in conspicuous location in the precinct, and in the municipal building or city hall, as the case may be. (c) A municipality which has been merged with another municipality shall constitute at least one election precinct, if the distance between the remotest barangay of the merged municipality and the nearest polling place in the municipality to which it has been merged shall, by the shortest road, exceed five kilometers.

186

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (d) An island or group of islands having one hundred and fifty or more voters shall constitute a precinct. (e) Any alteration of the election precincts or the establishment of new ones shall be communicated to the provincial election supervisor, the provincial superintendent of schools, etc. together with the corresponding maps, which shall be published as prescribed in the next succeeding sections. Comment: The Commission is empowered to do this to maintain the orderly administration of the voting process and to expedite the voting and counting in every precinct. Section 151. Publication of maps or precincts.- At least five days before the first registration day preceding a regular election or special election or a referendum or a plebiscite, the Commission shall, through its duly authorized representative, post in the city hall or municipal building and in three other conspicuous places in the city or municipality and on the door of each polling place, a map of the city or municipality showing its division into precincts with their respective boundaries and indicating therein all streets and alleys in populous areas and the location of each polling place. These maps shall be kept posted until after the election, referendum or plebiscite. Comment: There is a need of the posting so that on the day of the election the voters of each precinct would know where to go to and cast their votes. This will work to the advantage of the Commission to lessen its burden on the election day and for the speedy voting and counting. Section 152. Polling Place.- A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes. Comment: It is the most important place come election day. Section 153. Designation of polling places.- The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing: Provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used. 187

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Comment: The location of polling places may be changed when necessary for the safety and convenience of the voters. Section 154. Requirements for polling places.- Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors. The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing. A public building having the requirements prescribed in the preceding paragraph shall be preferred as polling place. Comment: It is for the easy access for the voters if the location of the polling place is along a public road. Section 155. Building that shall not be used as polling places.- No polling place shall be located in a public or private building owned, leased, or occupied by any candidate or of any person who is related to any candidate within the fourth civil degree of consanguinity or affinity, or any officer of the government or leader of any political party, group or faction, nor in any building or surrounding premises under the actual control of a private entity, political party or religious organization. In places where no suitable public building is available, private school buildings may be used as polling places. No polling place shall be located within the perimeter of or inside a military or police camp or reservation or within a prison compound. Any registered voter, candidate or political party may petition the Commission not later than thirty days before the first registration day for the transfer of the polling place from the prohibited buildings provided herein. Such petition shall be heard and decided by the Commission within twenty days from the filing of the petition. Failure to effect the transfer of the polling place after the Commission found it to be located in violation of this section within the period prescribed herein shall be a ground for the postponement of the election in the polling place concerned. Comment: The rationale of this provision is to maintain the independence and integrity of the Commission. Section 156. Signs and flags of polling places.- On the day of the voting as well as on any day that the board of election inspectors might meet, every polling place shall have in front a sign showing the number of the precinct 188

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS to which it belongs and the Philippine flag shall be hoisted at the proper height. Comment: This is to inform the voters on where to proceed and cast their votes. Section 157. Arrangement and contents of polling places.- Each polling place shall conform as much as possible to the sketch on the following page. Comment: Polling places must be organized so as not to mislead the registered voters. Section 11 of R.A. No. 7166 amended Section 158 hereof: Section 11. Voting Booth.- Any provision of law to the contrary notwithstanding, there shall be in each polling place at least ten (10) voting booths of such size, specifications and materials as the Commission may provide to enable the voters to fill out their ballots secretly. DISCUSSIONS

Shall the election in certain municipalities be declared null and void for the reason that proper voting booths had not been prepared, by reason of which the voters were not able to prepare their ballots in secret? It was held in the case of Gardiner v. Romulo, (26 Phil. 521) that the requirements of the Election Law, providing for the location of polling stations and the construction of booths and guard rails for the latter, may be departed from in some particulars and yet preserve in substantial form from the secrecy which the law requires. But the failure to provide doors and guard rails for the booths and the placing of the writing shelf so that it faces the side instead of the rear of the booth are, combined, a fatal disregard of the law, inasmuch as such an arrangement does not offer, even in substantial form, the secrecy and seclusion which, according to the purpose and spirit of the Election Law, it is most mandatory requirement.

A. Precincts Every barangay must have atleast one precinct; the COMELEC may also introduce adjustments, changes, create new divisions or abolish a precinct itself if necessary. It must however be remembered that the territory comprising an election precinct must not be altered or create a new precinct 189

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS within forty (40) days before the regular election or within thirty (30) days before a special election, referendum or plebiscite. (Sec. 149 B.P 881) The COMELEC during the last election passed Resolution No. 8699 which provides that precincts shall be clustered into groups of not less than three (3) or more than seven (7). For the purpose of such clustering the equitable distribution of voters per precinct shall be taken into consideration. In no case however shall the aggregate number of registered voters in the clustered or grouped precinct exceed One Thousand (1,000). The passing of such resolution amended Sec. 150 of B.P 881 which limited the number of voters per precinct to merely three hundred; thus now due to such clustering a precinct may have the maximum of one thousand voters casting their votes.

B. Polling Places a. General Provisions Polling places are buildings or places where the BEI conducts its proceedings and where the voters cast their votes (Sec. 152 B.P 881). It must be as far as possible on the ground floor, of sufficient size to admit and comfortably accommodate at least forty (40) voters at one time. It must be located within the territory of the precinct, and if possible it must be along a public road. A public building having the same requirements may likewise be used as a polling place Sec. 154 B.P 881). On the day or the election, as well as on any day that the BEI might meet, every polling place must have in front a sign showing the number of the precinct to which it belongs and the Philippine flag shall be joisted at the proper height (sec. 156 B.P 881). The COMELEC may also change the location of the polling place if it is necessary, however before doing that it must first notify the political parties or candidates that are affected by such change and then conduct a hearing. The Commission must not however change the location of the polling place within forty-five (45) days a regular election or within thirty (30) days before a special election, referendum or plebiscite. Only except when such polling place is destroyed or dilapidated, the use thereof might cause injury to the voters or when it can no longer be used (Sec. 153 B.P 881). Before the day of the election the Chairman of the COMELEC shall, through his authorized representatives, see to it that all polling places 190

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS are inspected and such omissions and defects corrected. The COMELEC shall keep a record of such reports (Sec. 163 B.P 881). b. Buildings that shall not be used as Polling Places 1. Any building, private or publicly owned, leased, or occupied by any candidate or any person who is related to any candidate within the fourth (4th) civil degree of consanguinity or affinity or any officer of the government or leader of any political party, group or faction; 2. Any building or surrounding premises under the control of a private entity, political party or religious organization. 3. Any building located within the perimeter of or inside a military or police camp or reservation or within a prison compound (Sec. 155 B.P 881).

JURISPRUDENCE\ In the case of Paulino v. Cailles, (No. L-12753, 37 Phil. 825) however, booths were prepared, so far as the record shows, in accordance with the provisions of the law. During the progress of the voting, however, some of the partitions between the different booths, which seem to have been made of paper, were, by a strong wind, destroyed or broken down to some extent. No one seems to have been responsible except that the inspectors failed to take the proper precaution in the construction of the booths. Neither does it appear that there were not sufficient booths left intact to permit all those voters, who, in fact, desired to prepare their ballots in secret, to do so. While there was almost an inexcusable negligence on the part of those in authority in the construction of the booths, the Court found no reason for modifying the conclusion of the lower court. While the law provides the manner of constructing voting booths, and while the provisions are in a sense mandatory yet the purpose of the law is to require voting booths which afford the voter an opportunity, if he desires, to prepare his ballot in absolute secrecy. Secrecy is the object of the booth. An opportunity to prepare the ballot in private is the purpose of the provision. When the booth affords that protection the purpose of the law is fulfilled. To hold otherwise- to establish a different rule would make the manner of performing a public duty more important than the performance of the duty itself. (Lino Luna v. Rodriguez, No. 13744, 39 Phil. 208)

Section 159. Guard rails.- (a) In every polling place there shall be a guard rail between the voting booths and the table for the board of election 191

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS inspectors which shall have separate entrance and exit. The booths shall be so arranged that they can be accessible only by passing through the guard rail and by entering through its open side facing the table of the board of election inspectors. (b) There shall also be a guard rail for the watchers between the place reserved for them and the table for the board of election inspectors and at a distance of not more than fifty centimeters from the latter so that the watchers may see and read clearly during the counting of the contents of the ballots and see and count the votes recorded by the board of election inspectors member on the corresponding tally sheets. ( c ) There shall also be, if possible, guard rails separating the table of the board of election inspectors from the voters waiting for their turn to cast their votes, with entrance and exit to give them orderly access to the table and the booths during the voting. (d) The polling place shall be so arranged that the booths, the table, the ballot boxes and the whole polling place, except what is being written within the booths, shall be in plain view of the board of election inspectors, the watchers and other persons who may be within the polling place. This is resorted to for the orderly and organized voting process and to sanction parameters among voters, watchers, election inspectors and those who may be within the polling place. Section 160. Ballot boxes.- (a) There shall be in each polling place on the day of the voting a ballot box one side of which shall be transparent which shall be set in a manner visible to the voting public containing two compartments, namely, the compartment for valid ballots which is indicated by an interior cover painted white and the compartment for spoiled ballots which is indicated by an interior cover painted red. The boxes shall be uniform throughout the Philippines and shall be solidly constructed and shall be closed with three different locks as well as three numbered security locks and such other safety devices as the Commission may prescribe in such a way that they can not be opened except by means of three distinct keys and by destroying such safety devices. (b) In case of the destruction or disappearance of any ballot box on election day, the board of election inspectors shall immediately report it to the city or municipal treasurer who shall furnish another box or receptacle as equally adequate as possible. The election registrar shall report the incident and the delivery of a new ballot box by the fastest means of communication on the same day to the Commission and to the provincial election supervisor.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 161. Tally boards.- At the beginning of the counting, there shall be placed within the plain view of the board of election inspectors, watchers and the public, a tally board where the names of all registered candidates or the issues or questions to be voted upon shall be written, and the poll clerk shall record thereon the votes received by each of them as the chairman of the board of election inspectors reads the ballot. Section 162. Furnishing of ballot boxes, forms, stationeries and materials for election.- The Commission shall prepare and furnish the ballot boxes, forms, stationeries and materials necessary for the registration of voters and the holding of the election. The provincial, city and municipal treasurer shall have custody of such election paraphernalia, supplies and materials as are entrusted to him under the law or rules of the Commission and shall be responsible for their preservation and storage, and for any loss, destruction, impairment or damage of any election equipment, material or document in their possession furnished under this Code.

DISCUSSIONS

Resolution No. 8696 xxx The following policy directions for the Automated Election System in the May 10, 2010 national and local elections, as follows: 1. The ballot box shall have only one compartment. 2. Rejected ballots will be returned to the voter, who will in turn give the same to the Board of Election Inspectors. The voter will not be issued a replacement ballot. 3. A vote is considered valid if the mark or shade on the oval reaches the threshold of 50%. 4. The ballot shall contain the name of the candidate, stage name/nickname and political party affiliation. For every position, each candidate shall be assigned a number which shall be in sequential order beginning with the number 1 in accordance with their alphabetical listing. 5. Party-list groups shall be listed on the ballot by their acronym. The full name of the party-list group shall be indicated in a certified list which shall be printed in newsprint for distribution to all precincts or clustered precincts. Each party-list group shall also be assigned a number which shall be in sequential order beginning with the number 1 in accordance with their alphabetical listing. 193

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 6. The procurement of ballot boxes shall be through any of the applicable alternative methods of procurement authorized under Republic Act No. 9184. To expedite the manufacturing process, the manufacturing contract may be multi-sourced, provided such fact of multi-sourcing shall be disclosed in the request for Proposal. xxx

Section 163. Inspection of polling places.- Before the day of the election, referendum or plebiscite, the Chairman of the Commission shall, through its authorized representatives, see to it that all polling places are inspected and such omissions and defects as may be found corrected. The Commission shall keep the reports on these inspections. Checking the Voting Centers and Polling Places prior to Elections by the Board of Election Inspectors (BEI). The BEIs, with the assistance of the Supervisors or Principals, should verify and check from the E.O., the exact location of the polling place preferably one or two weeks before election. The BEIs should inspect the polling place to determine if there is adequate lighting, etc. so that repairs can be recommended and performed before Election Day.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XIV BOARD OF ELECTION INSPECTORS

Section 164. Composition and appointment of board of election inspectors.- At least thirty days before the date when the voters list is to be prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment.

DISCUSSIONS

Section 13 of RA No. 6646 amended Section 164 hereof: Section 13. Board of Election Inspectors.- The board of election inspectors to be constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom shall be public school teachers, giving preference to those with permanent appointments. In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence who are registered voters of the city or municipality may be appointed for election duty.

Section 165. Oath of the members of the board of election inspectors.- The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election inspectors present, or in case no one is present, they shall take it before any voter. The oaths shall be sent immediately to the city or municipal treasurer. 195

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS This is because of the nature of their office. They are serving the Republic of the Philippines, thus it is a delicate duty because their task is to ascertain the will of the people. Section 166. Qualification of members of the board of election inspectors.No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. Note: This is to maintain the integrity of the votes and the Commission itself. Section 167. Disqualification.- No person shall serve as chairman or member of the board of election inspectors if he is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or to any candidate to be voted for in the polling place or his spouse.

DISCUSSIONS

Under Comelec Resolution No. 7798, there is a prohibition for barangay officials to become members of the BEI. This provision is basic, the purpose of which is in order to prevent fraud.

Section 168. Powers of the board of election inspectors.- The board of election inspectors shall have the following powers and functions: a. Conduct the voting and counting of votes in their respective polling places; b. Act as deputies of the Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; and 196

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS c. Perform such other functions prescribed by this Code or by the rules and regulations promulgated by the Commission. Section 169. Voting privilege of members of board of election inspectors.Members of the board of election inspectors and their substitutes may vote in the polling place where they are assigned on election day: Provided, That they are registered voters within the province, city or municipality where they are assigned: and Provided, finally, that their voting in the polling places where they are not registered voters be noted in the minutes of the board of election inspectors. This privilege is given to insure that the right to vote of the members of the board of election inspectors is not defeated. Section 170. Relief and substitution of members of the board of election inspectors.- Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing. Any member of the board of election inspectors, nominated by a political party, as well as his substitute may at any time be relieved from office and substituted with another having the legal qualifications upon petition of the authorized representative of the party upon whose nomination the appointment was made, and it shall be unlawful to prevent said person from, or disturbed him in, the performance of the duties of the said office. A record of each case of substitution shall be made, setting forth therein the hour in which the replaced member has ceased in the office and the status of the work of the board of election inspectors. Said record shall be signed by each member of the board of election inspectors including the incoming and the outgoing officers. Note: This is resorted to whenever the circumstances so warrant. Section 171. Vacancy in the board of election inspectors.- Every vacancy in the board of election inspectors shall be filled in the remaining period in the manner hereinbefore prescribed. Section 172. Proceedings of the board of election inspectors.- The meetings of the board of election inspectors shall be public and shall be held only in the polling place authorized by the Commission. The board of election inspectors shall have full authority to maintain order within the polling place and its premises, to keep access thereto open and 197

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS unobstructed, and to enforce obedience to its lawful orders. If any person shall refuse to obey lawful orders of the board of election inspectors, or shall conduct himself in a disorderly manner in its presence or within its hearing and thereby interrupt or disturb its proceedings, the board of election inspectors may issue an order in writing directing any peace officer to take such person into custody until the adjournment of the meeting, but such order shall not be executed as to prevent any person so taken into custody from exercising his right to vote. Such order shall be executed by any peace officer to whom it may be delivered, but if none be present, by any other person deputized by the board of election inspectors in writing. Note: The order must be in writing. Section 173. Prohibition of political activity.- No member of the board of election inspectors shall engage in any partisan political activity or take part in the election except to discharge his duties as such and to vote. Section 174. Functioning of the board of election inspectors.- The board of election inspectors shall act through its chairman, and shall decide without delay by majority vote all questions which may arise in the performance of its duties. Section 175. Temporary vacancies.- If, at the time of the meeting of the board of election inspectors, any member is absent, or the office is still vacant, the members present shall call upon the substitute or the absent members to perform the duties of the latter; and, in case such substitute cannot be found, the members present shall appoint any non-partisan registered voter of the polling place to temporarily fill said vacancy until the absent member appears or the vacancy is filled. In case there are two or more member present, they shall act jointly: Provided, That if the absent member is one who has been proposed by an accredited political party, the representative of said political party or in his absence the watchers belonging to said party shall designate a registered voter of the polling place to temporarily fill said vacancy: Provided, further, That in the event or refusal or failure of either representative or watchers of said political party to make the designation, the members of the board of election inspectors present shall choose a non-partisan registered voter of the polling place to fill the vacancy. Section 176. Temporary designation of members of the board of election inspectors by watchers.- If at the time the board of election inspectors must meet, all the positions in the board of election inspectors are vacant, 198

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS or if not one of the appointed members shall appear, the watchers present may designate voters of the polling place to act in the place of said members until the absentees shall appear or the vacancies are filled. Section 177. Arrest of absent members.- The member or members of the board of election inspectors present may order the arrest of any other member or substitute thereof, who in their judgment, has absented himself with intention of obstructing the performance of duties of the board of election inspectors. Note: This depends upon the sound judgment of such member or members of the board of election inspectors. They should have a valid and clear basis before making such an order.

DISCUSSIONS

The Board of Election Inspectors (BEI): A. Composition: The board comprises of a chairman, a poll clerk who must be both public school teachers, priority shall be given to civil service eligibles and two members each representing tow accredited political parties. Among those 4 members of the board Sec. 3 of R.A 9369 requires that atleast one of the members is an Information Technology (I.T) capable person who was either trained or certified by the DOST to handle or use the Automated Election System (AES). B. General Qualifications: B.P 881 Sec. 166 No person shall be appointed as chairman, member or substitute member of the BEI unless he is: 1. Of good moral character and irreproachable reputation; 2. A registered voter of the city or municipality; 3. Has never been convicted of any other crime punishable by more than six (6) months imprisonment, or if he has pending against him an information for any election 4. In addition Sec. 3 of R.A 9369 provides that atleast one member of the BEI is an information technology (I.T) capable person who was trained or certified by the DOST to use the AES.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS C. Disqualifications: Sec. 167 of B.P 881 provides that a person shall be disqualified to serve as the chairman or member of the BEI if he is relative within the fourth (4th) civil degree of consanguinity or affinity to any member of the board of election inspectors or to any candidate to be voted upon in the polling place or his spouse. Simply put if you are the spouse or relative up to 4th degree of affinity or consanguinity or a relative up to your 1st cousin of a candidate or any member of the board of election inspectors you are disqualified to hold the position of either chairman or member of the BEI. The soundest reason for such prohibition is to prevent any possibility of contriving to manipulate or alter the ballots that ultimately might affect the outcome of the election.

D. Powers and Functions: Sec. 168 of B.P 881 provides that the Board of Election Inspectors has the following powers and functions; a. Conduct the voting and counting of votes in their respective polling places; b. Act as the deputies of the COMELEC in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; and c. Perform such other powers and prescribes by the code or by the rules and regulations promulgated by the COMELEC.

JURISPRUDENCE In Pangandaman v. Comelec, (G.R. No. 134340, November 25, 1999, 319 SCRA 283) it was held therein that the insistence of petitioner that the Comelec violated Sections 166, 170, 175 and 176 of B.P. 881 when it ordered elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis--vis the underlying reason of the public respondent to have an effective and impartial military presence to avoid the risk of another failure of elections.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XV WATCHERS

Section 178. Official watchers of candidates.- Every registered political party, coalition or political parties and every independent candidate shall each be entitled to one watcher in every polling place. No person shall be appointed watcher unless he is a qualified voter of the city or municipality, of good reputation and shall not have been convicted by final judgment of any election offense or of any other crime, must know how to read and write Pilipino, English, Spanish or any of the prevailing local dialects, and not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher. Each candidate, political party or coalition of political parties shall designate in every province, highly urbanized city or district in the Metropolitan Manila area, a representatives authorized to appoint watchers, furnishing the provincial election supervisor or the city election registrar, as the case may be, the names of such representatives. The provincial election supervisors shall furnish the municipal election registrars and election registrars of component cities with the list of such representatives. In the case of Metropolitan Manila, the designation of the persons authorized to appoint watchers shall be filed with the Commission, which shall furnish the list of such representatives to the respective city and municipal election registrars. Section 26 of R.A. 7166 amended Section 178 hereof: Sec. 26. Official Watchers.- Every registered political party or coalition of political parties, and every candidate shall each be entitled to one watcher in every polling place and canvassing center: Provided, that candidates for the Sangguniang Panlalawigan, Sangguniang Panlungsod, or Sangguniang Bayan belonging to the same slate or ticket shall collectively be entitled to only one watcher. There shall also be recognized six (6) principal watchers, representing the six (6) accredited major political parties, who shall be designated by the Commission upon nomination of the said parties. These political parties shall be determined by the 201

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Commission upon notice and hearing on the basis of the following circumstances: a. The established record of the said parties, coalition or groups that now composed them, taking into account, among other things, their showing in the past elections; b. The number of incumbent elective officials belonging to them ninety (90) days before the date of election; c. Their identifiable political organizations and strengths as evidenced by their organized chapters; d. The ability to fill a complete slate of candidates from the municipal level to the position of president; and e. Other analogous circumstances that may determine their relative organizations and strengths. Section 178, as amended by Sec. 26 of RA No. 7166 is further amended by Sec. 34 of RA 9369. Sec. 34. Sec. 26 of RA No. 7166 is hereby amended to read as follows: Sec. 26. Official Watchers. - Every registered political party or coalition of political parties, and every candidate shall each be entitled to one watcher in every polling place and canvassing center: Provided, that, candidates for the Sangguniang Panlalawigan, Sangguniang Panlungsod, or Sangguniang Bayan belonging to the same slate or ticket shall collectively be entitled to only one watcher. The dominant majority party and dominant minority party, which the Commission shall determine in accordance with law, shall each be entitled to one official watcher who shall be paid a fix per diem of Four hundred pesos (P400.00). There shall also be recognized six principal watchers, representing the six accredited major political parties excluding the dominant majority and minority parties, who shall be designated by the Commission upon nomination of the said parties. These political parties shall be determined by the Commission upon notice and hearing on the basis of the following circumstances: a. The established record of the said parties, coalition of groups that now composed them, taking into account, among other things, their showing in past elections; b. The number of incumbent elective officials belonging to them ninety (90) days before the data of election; 202

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS c. Their identifiable political organizations and strengths as evidenced by their organized/chapters; d. The ability to fill a complete slate of candidates from the municipal level to the position of President; and e. Other analogous circumstance that may determine their relative organizations and strengths. Section 179. Rights and duties of watchers.- Upon entering the polling place, the watchers shall present and deliver to the chairman of the board of election inspectors his appointment, and forthwith, his name shall be recorded in the minutes with a notation under his signature that he is not disqualified under the second paragraph of Section 178. The appointments of the watchers shall bear the personal signature or the facsimile signature of the candidate or the duly authorized representatives of the political party or coalition of political parties who appointed him or of organizations authorized by the Commission under Section 180. The watchers shall have the right to stay in the space reserved for them inside the polling place. They shall have the right to witness and inform themselves of the proceedings of the board of election inspectors, including its proceedings during the registration of voters, to take notes of what they may see or hear, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as of election returns, tally boards and ballot boxes, to file a protest against any irregularity or violation of law which they believe may have been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificate as to the filing of such protest and/or of the resolution thereon, to read the ballots after they shall have been read by the chairman, as well as the election returns after they shall have been completed and signed by the members of the board of election inspectors without touching them, but they shall not speak to any member of the board of election inspectors, or to any voter, or among themselves, in such a manner as would distract the proceedings, and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors. Refusal of the chairman and the members of the board of election inspectors to sign and furnish such certificate shall constitute an election offense and shall be penalized under this Code. Section 180. Other watchers.- The duly accredited citizens arm of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority of the Commission, shall be entitled collectively to appoint one watcher in every polling place.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

A. Power to Appoint Watchers Sec. 178 of B.P 881 provides that every registered political party, coalition of political parties and every independent candidate is entitled to one poll watcher in every polling place. This measure is used to assure or guarantee every candidate whether or not he belongs a political party that votes cast in his favor are protected, however in order to avoid any possible confusion due to the number of people inside the present only one watcher per candidate or party is allowed. B. Qualifications of Watchers 1. Qualified voter of the city or municipality 2. Of good reputation 3. Shall not have been convicted by final judgment of any offense of any election offense or of any other crime 4. Must know how to read and write Filipino, English, Spanish or any of the prevailing local dialects, and 5. Not related within the fourth (4th) civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher. Note: Each candidate, political party or coalition of political parties can designate in every province, highly urbanized city or district in the Metropolitan Manila area, a representative to appoint watcher, furnishing the provincial election supervisor or the city election registrar, as the case maybe, the names of such representatives. In Metro Manila, the designation of the persons authorized to appoint watchers shall be filed in the Commission itself. C. Rights and Duties of Watchers The watchers must upon entering the polling place present his appointment to the chairman of the BEI, after which his name shall be recorded in the minutes with a notation under his signature that he is not disqualified under the second paragraph of Sec. 178. His appointment must bear the personal signature or the facsimile signature of the candidate or political party who appointed him. Sec 178 of B.P 881 provides that every watcher shall have the right among other things to; first, stay in the place or space reserved for them inside the polling precint.; second, to witness and inform themselves of the proceedings of the board of election inspectors, including its proceedings during the registration of voters; third, to take notes of what they might hear 204

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS or see, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as election returns, tally boards and ballot boxes; fourth, to file any protest against any irregularity or violation of law which they believe may have been committed by the BEI or by any other person; and lastly, to obtain from the board of election inspectors a certificate as to the filing of such protest and/or of the resolution thereon. Due to the advent of the passing of R.A 9369 some rights may no longer be applicable such as the reading of the ballots after they had been read by the chairman of the BEI after they had been completed and signed by the members thereof without touching them, because due to the automation there is no longer a need to manually read the ballots.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XVI OFFICIAL BALLOTS AND ELECTION RETURNS Sec. 181. Official ballots. - Ballots for national and local offices shall be of uniform size and color and shall be provided at public expense. They shall be printed on paper with watermarks or other marks that will readily distinguish the ballot paper from ordinary paper. Each ballot shall be in the shape of a strip with stub and detachable coupon containing the serial number of the ballot, and a space for the thumb mark of the voter on the detachable coupon. It shall bear at the top on the middle portion thereof the coat of arms of the Republic of the Philippines, the words "Official Ballot", the name of the city or the municipality and province in which the election is held, the date of the election, and the following notice: "Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark on any part of this ballot." The ballot shall also contain the names of all the offices to be voted for in the election, allowing opposite the name of each office, sufficient space or spaces with horizontal lines where the voter may write the name or names of the individual candidates voted for by him. There shall not be anything on the reverse side of the ballot. Ballots in cities and municipalities where Arabic is of general use shall have each of the titles of offices to be voted printed in Arabic in addition to and immediately below the English title. Notwithstanding the preceding provisions of this section, the Commission is hereby empowered to prescribe a different form of ballot to facilitate voting by illiterate voters and to use or adopt the latest technological and electronic devices as authorized under paragraph (i) of Section 52 hereof. JURISPRUDENCE ALBERTO vs. COMELEC 311 SCRA 215 While it may be true that there is no specific COMELEC rule governing the photocopying of ballots, it has become a practice allowed by the Commission itself in numerous election cases. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. Election contests should be rapidly and economically decided, avoiding unnecessary delays. 206

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JUAN vs. COMELEC G.R. No. 166639, April 24, 2007 A ballot indicates the voters will. There is no requirement that the entries in the ballot be written nicely or that the name of the candidate be spelled accurately. In the reading and appreciation of ballots, every ballot is presumed valid unless there is a clear reason to justify its rejection. The object in the appreciation of ballots is to ascertain and carry into effect the intention of the voter, if it can be determined with reasonable certainty. When placed in issue, as in this case, the appreciation of contested ballots and election documents which involves a question of fact, is best left to the determination of the COMELEC.

Sec. 182. Emergency ballots. - No ballots other than the official ballots shall be used or counted, except in the event of failure to receive the official ballots on time, or where there are no sufficient ballots for all registered voters or where they are destroyed at such time as shall render it impossible to provide other official ballots, in which cases the city or municipal treasurer shall provide other ballots which shall be as similar to the official ones as circumstances will permit and which shall be uniform within each polling place. The treasurer shall immediately report such action to the Commission. The municipal treasurer shall not undertake the preparation of the emergency ballots unless the political parties, candidates and the organizations collectively authorized by the Commission to designate watchers have been sufficiently notified to send their representatives and have agreed in writing to the preparation and use of emergency ballots. Sec. 183. Requisition of official ballots and election returns. - Official ballots and election returns shall be printed upon orders of the Commission. Requisition of official ballots shall be for each city and municipality, at the rate of one and one-fifth ballots for every registered voter in the next preceding election; and for election returns, at one set thereof for every polling place. Sec. 184. Printing of official ballots and elections returns. - The official ballots and election returns shall be printed by the Government Printing Office and/or the Central Bank printing facilities exclusively, under the exclusive supervision and control of the Commission which shall determine and provide the necessary security measures in the printing, storage and distribution thereof. Each ballot shall be joined by a perforated line to a stub numbered consecutively, beginning with number "1" in each city and municipality. Each ballot shall also have at the bottom a detachable coupon bearing the 207

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS same number of the stub. Each pad of ballots shall bear on its cover the name of the city or municipality in which the ballots are to be used and the inclusive serial numbers of the ballots contained therein. The official ballots shall be bound in separate pads of fifty or one hundred ballots each as may be required. The election returns shall be prepared in sets of six copies per set and shall be numbered consecutively, beginning with number "1" in each city and municipality. Each set of the election returns shall be printed in such a manner that will ensure that the entries on the original of the returns are clearly reproduced on the other copies thereof and shall bear the name of the city or municipality in which the returns are to be used. For this purposes, the Commission shall acquire, if necessary, a special kind of carbon paper or chemically treated paper. Sec. 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. Sec. 186. Distribution of official ballots and election returns. - The official ballots and the election returns shall be distributed by the Commission to each city and municipality at the rate of one and one-fifth ballots for every voter registered in each polling place; and for election returns, at the rate of one set each for every polling place. 1. The ballot box shall have only one compartment. 2. Rejected ballots will be returned to the voter, who will in turn give the same to the Board of Election Inspectors. The voter will not be issued a replacement ballot. 3. A vote is considered valid if the mark or shade on the oval reaches the threshold of 50%. 4. The ballot shall contain the name of the candidate, stage name/nickname and political party affiliation. For every position, each candidate shall be assigned a number which shall be in sequential order beginning with the number 1 in accordance with their alphabetical listing. 5. Party-list groups shall be listed on the ballot by their acronym. The full name of the party-list group shall be indicated in a certified list which shall be printed in newsprint for distribution to all precinct or clustered precincts. Each party208

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS list group shall also be assigned a number which shall be in sequential order beginning with the number 1 in accordance with their alphabetical listing. 6. The procurement of ballot boxes shall be through any of the applicable alternative methods of procurement authorized under Republic Act No. 9184. To expedite the manufacturing process, the manufacturing contract may be multi-sourced, provided such fact of multi-sourcing shall be disclosed in the Request for Proposal. Section 187 was amended by Section 8 of R.A. 6646. Section 8. Representatives of parties during printing of returns and ballots.- The registered political parties or coalition of parties, or their components should there be any dissolution or division of said coalition, whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof. Section 188. Duties of the committee on printing of official ballots and election returns.- Under such orders or instructions as the Commission may issue, and in addition to general supervision and control over the printing and shipment of official ballots and election returns, the committee on printing of official ballots and election returns shall (a) take charge of the room or rooms where the paper and paraphernalia used in the printing of official ballots and election returns are stored and where printed official ballots and election returns are packed and prepared for shipment, (b) supervise all aspects relating to the printing, storage and shipment of official ballots and election returns and report to the Commission any irregularity which they believe may have been committed, and (c) perform such other related functions as the Commission may direct. Section 189. Representatives of the registered political parties in the verification and distribution of official ballots and election returns.- The ruling party and the dominant opposition party or their respective duly authorized representatives in the different provinces, cities and municipalities, shall submit the names of their respective watchers who, together with the representatives of the Commission and the provincial, city and municipal treasurer shall verify the contents of the boxes containing the shipment of official ballots, election returns and sample official ballots received by the said treasurers. The provincial treasurers shall keep a record of their receipt and distribution to each municipal 209

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS treasurer, while the city and municipal treasurer shall each keep a record of their distribution to the board of election inspectors. Note: Watchers should keep a watchful eye on the BEI members. It is during this critical period that the BEI members are exposed to all sorts of temptation. DISCUSSIONS

The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain: the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size. A fixed space where the chairman of the board of election inspector shall affix her/her signature to authenticate the official ballot shall be provided. "To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot. (Sec. 15, R.A. no 9369)

With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contact the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizen's arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. (Sec. 15, R.A. 9369) 210

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct. (Sec. 15 R.A. no 9369) Spoiled ballots Previous to the use of the Automated Election System, there was what was called spoiled ballots. Under Sec. 197 of B.P. Blg. 881, spoiled ballots are: If a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used, he shall surrender if folded to the chairman who shall note in the corresponding space in the voting record that said ballot is spoiled. The voter shall then be entitled to another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording said serial number in the corresponding spaces in the voting record. If the second ballot is again spoiled or defaced in such a way that it cannot lawfully be used, the same shall be surrendered to the chairman and recorded in the same manner as the first spoiled or defaced ballot. However, no voter shall change his ballot more than twice. The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word "spoiled" and signed by the board of election inspectors on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots.

However due to the Automated Election System the following matters relating to ballots are provided by Resolution no. 8786: Section 38. Rejected ballots; Procedure. - Ballots may be rejected by then PCOS during the scanning. There will be three (3) different types of messages when the PCOS rejects a ballot. For each messages, the BEI shall observe the following procedures: (As Revised) a. "AMBIGUOUS MARK" i. Let the voter review his ballot and ensure that the ovals opposite the name of candidate/party voted for are fully shaded. b. "MISREAD BALLOT" - let the voter re-feed the ballot in 4 different orientations of ballot. c. "INVALID BALLOT" i. Verify if the ballot belongs to the precinct. If the ballot belongs to another precinct, the voter shall return the ballot to the Chairman who shall proceed to Step 4 and 5 hereof;

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ii. If the ballot belongs to the precinct, let the voter re-feed the ballot in 4 different orientations. d. In all cases, if the PCOS rejects a ballot, the voter shall return the ballot to the Chairman who shall: i. Distinctly mark the back thereof as "REJECTED"; ii. Require all members of the BEI to sign at the back thereof, and place inside the Envelope for Rejected Ballots (A15). e. No replacement ballot shall be issued to a voter whose ballot is rejected by the PCOS; f. Any party objecting to the rejection of the ballot shall reduce his objection in writing, which the BEI shall attach and note in the Minutes. Section 39. Disposition of unused ballots. - After the voting, the chairman in the presence of the BEI shall: (Renumbered) a. Record in the Minutes the quantity of unused ballots; (Renumbered) b. Tear the unused ballots in half lengthwise; (Renumbered) c. Place one half in the envelope (A15), and submit to the EO for safekeeping; and (Renumbered) d. Place the other half in another envelope (A15), and then deposit inside the compartment of the ballot box for valid ballots. Such facts shall be entered in the Minutes. (Renumbered)

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XVII CASTING OF VOTES

Section 190. Voting hours.- The casting of votes shall start at seven oclock in the morning and shall end at three oclock in the afternoon, except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption. The poll clerk shall, without delay, prepare a complete list containing the names of said voters consecutively numbered, and the voters so listed shall be called to vote by announcing each name repeatedly three times in the order in which they are listed. Any voter in the list who is not present when his name is called out shall not be permitted to vote. Voting commences at exactly 7:00 A.M. and ends at exactly 3:00 P.M. However, voters within thirty meters in front of the polling place who have not yet cast their votes shall be allowed to cast their votes even after 3:00 P.M. However, in the May 10, 2010 national and local elections the Commission extended the voting hours until 6:00 P.M. Sec. 191. Preliminaries to the voting. - (a) The board of election inspectors shall meet at the polling place at six-thirty o'clock in the morning of election day and shall have the book of voters containing all the approved applications of registration of voters pertaining to the polling place, the certified list of voters, the certified list of candidates, the ballot box, the official ballots, sufficient indelible pencils or ball pens for the use of the voters, the forms to be used, and all other materials which may be necessary. (b) Immediately thereafter, the chairman of the board of election inspectors shall open the ballot box, empty both of its compartments, exhibit them to all those present and being empty, lock its interior covers with three padlocks. (c) The chairman shall forthwith show to the public and the watchers present the package of official ballots received from the city, or municipal treasurer duly wrapped and sealed and the number of pads, the serial numbers and the type forms of the ballots in each pad appearing on the cover, and the book of voters duly sealed. The board of election inspectors shall then break the seals of the package of official ballots and the book of voters. The board of election inspectors shall enter in the minutes the fact that the package of ballots, and the book of voters were shown to the 213

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS public with their wrapping and corresponding seals intact and/or if they find that the wrapping and seals are broken, such fact must be stated in the minutes as well as the number of pads and the serial numbers of ballots that they find in the package. Ballots with separately printed serial numbers shall be deemed spurious and shall not be utilized by the board of election inspectors unless the Commission representative shall order their use in writing, stating the reasons therefor. (d) The chairman and the two party members of the board of election inspectors shall retain in their possession their respective keys to the padlocks during the voting. (e) The box shall remain locked until the voting is finished and the counting begins. However, if it should become necessary to make room for more ballots, the board of election inspectors may open the box in the presence of the whole board of election inspectors and the watchers, and the chairman shall press down with his hands the ballots contained therein without removing any of them, after which the board of election inspectors shall close the box and lock it with three padlocks as hereinbefore provided.

DISCUSSIONS

Resolution No. 8696 xxx Relative to the conduct of the Automated Election System (AES) for the May 10, 2010 national and local elections in order to provide directions to the COMELEC Project Management Office and the Smartmatic TIM Project management Team on the preparations necessary to ensure as successful implementation of the AES. xxx

Section 192. Persons allowed in and around the polling place. - During the voting, no person shall be allowed inside the polling place, except the members of the board of election inspectors, the watchers, the representatives of the Commission, the voters casting their votes, the voters waiting for their turn to get inside the booths whose number shall not exceed twice the number of booths and the voters waiting for their turn to cast their votes whose number shall not exceed twenty at any one time. The watchers shall stay only in the space reserved for them, it being 214

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS illegal for them to enter places reserved for the voters or for the board of election inspectors or to mingle and talk with the voters within the polling place. It shall be unlawful for any officer or member of the Armed Forces of the Philippines including the Philippine Constabulary or the Integrated National Police or peace officer or any armed person belonging to any extra-legal police agency, special forces, reaction forces, strike forces, home defense units, barangay tanod, or other similar forces or paramilitary forces, including special forces, security guards, special policeman, and all other kinds of armed or unarmed extra-legal police officers, to enter any polling place, unless it is his polling place where he will vote but in such case he should immediately leave the polling place, no policeman or peace officer shall be allowed to enter or stay inside the polling place except when there is an actual disturbance of the peace and order therein. However, the board of election inspectors upon majority vote, if it deems necessary, may make a call in writing, duly entered in the minutes, for the detail of a policeman or any peace officer for their protection or for the protection of the election documents and paraphernalia, in which case, the said policeman or peace officer shall stay outside the polling place within a radius of thirty meters near enough to be easily called by the board of election inspectors at any time, but never at the door, and in no case shall the said policeman or peace officer hold any conversation with any voter or disturb or prevent or in any manner obstruct the free access of the voters to the polling place. It shall likewise be unlawful for any barangay official to enter and stay inside any polling place except to vote or except when serving as a watcher or member of the board of election inspectors, in which case, he shall leave the polling place immediately after voting. Section 193. Order of voting. - The voters shall vote in the order of their entrance into the polling place. The voters shall have the right to freely enter the polling place as soon as they arrive unless there are voters waiting inside, in which case they shall fall in line in the order of their arrival and shall not crowd around the table of the board of election inspectors. The voters after having cast their votes shall immediately depart. Note: SUPPLEMENTED BY COMELEC RESOLUTION 7797 (May 14, 2007) In Re: Absentee Voting Section 194. Manner of obtaining ballots. - The voter shall approach the chairman and shall give his name and address together with other data concerning his person. In case any member of the board of election inspectors doubts the identity of the voter, the board of election inspectors shall check his voter's identification card or, if he does not have any, the board of election inspectors shall refer to his photograph and signature in 215

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the voter's application for registration. If the board of election inspectors is satisfied with his identity, the chairman shall distinctly announce the voter's name in a tone loud enough to be plainly heard throughout the polling place. If such voter has not been challenged, or if having been challenged, the question has been decided in his favor, the voter shall forthwith affix his signature in the proper space in the voting record, and the chairman shall, after first entering the number of the ballot in the corresponding space of the voting record, deliver to the voter one ballot correctly folded. No person other than the chairman shall deliver official ballots nor shall more than one ballot be delivered at one time.

DISCUSSIONS

SUPPLEMENTED BY Section 24 RA 7166 Signature of Chairman at the Back of Every Ballot. - In every case before delivering an official ballot to the voter, the chairman of the board of election inspectors shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the board of election inspectors and shall constitute an election offense punishable under Section 263 and 264 of the Omnibus Election Code.

Section 195. Manner of preparing the ballot. - The voter, upon receiving his folded ballot, shall forthwith proceed to one of the empty voting booths and shall there fill his ballot by writing in the proper space for each office the name of the individual candidate for whom he desires to vote. No voter shall be allowed to enter a booth occupied by another, nor enter the same accompanied by somebody, except as provided for in the succeeding section hereof, nor stay therein for a longer time than necessary, nor speak with anyone other than as herein provided while inside the polling place. It shall be unlawful to prepare the ballot outside the voting booth, or to exhibit its contents to any person, or to erase any printing from the ballot, or to intentionally tear or deface the same or put thereon any distinguishing mark. It shall likewise be unlawful to use carbon paper, paraffin paper, or other means for making a copy of the contents of the ballot or make use of any other means to identify the vote of the voter.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 196. Preparation of ballots for illiterate and disabled persons. - A voter who is illiterate or physically unable to prepare the ballot by himself may be assisted in the preparation of his ballot by a relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors, except the two party members: Provided, That no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record: Provided, further, That in no case shall an assistor assist more than three times except the non-party members of the board of election inspectors. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an election offense. Section 197. Spoiled ballots. - If a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used, he shall surrender if folded to the chairman who shall note in the corresponding space in the voting record that said ballot is spoiled. The voter shall then be entitled to another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording said serial number in the corresponding spaces in the voting record. If the second ballot is again spoiled or defaced in such a way that it cannot lawfully be used, the same shall be surrendered to the chairman and recorded in the same manner as the first spoiled or defaced ballot. However, no voter shall change his ballot more than twice. The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word "spoiled" and signed by the board of election inspectors on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots. Section 198. Voting. (a) After the voter has filled his ballot he shall fold it in the same manner as when he received it and return it to the chairman. (b) In the presence of all the members of the board of election inspectors, he shall affix his thumb mark on the corresponding space in the coupon, and deliver the folded ballot to the chairman. (c) The chairman, in the presence and view of the voter and all the members of the board of election inspectors, without unfolding the ballot or seeing its contents, shall verify its number from the voting record where it was previously entered. 217

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (d) The voter shall forthwith affix his thumb mark by the side of his signature in the space intended for that purpose in the voting record and the chairman shall apply silver nitrate and commassie blue on the right forefinger nail or on any other available finger nail, if there be no forefinger nail. (e) The chairman shall sign in the proper space beside the thumb mark of the voter. (f) The chairman, after finding everything to be in order, shall then detach the coupon in the presence of the board of election inspectors and of the voter and shall deposit the folded ballot in the compartment for valid ballots, and the detached coupon in the compartment for spoiled ballots. (g) The voter shall then depart. Any ballot returned to the chairman whose detachable coupon has been removed not in the presence of the board of election inspectors and of the voter, or any ballot whose number does not coincide with the number of the ballot delivered to the voter, as entered in the voting record, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors. Section 199. Challenge of illegal voters. (a) Any voter, or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter; and (b) No voter shall be required to present his voter's affidavit on election day unless his identity is challenged. His failure or inability to produce his voter's affidavit upon being challenged, shall not preclude him from voting if his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters or if he is identified under oath by a member of the board of election inspectors and such identification shall be reflected in the minutes of the board. Section 200. Challenge based on certain illegal acts. - Any voter or watcher may challenge any voter offering to vote on the ground that the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; that he has 218

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS made or received a promise to influence the giving or withholding of any such vote or that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. The challenged person shall take a prescribed oath before the board of election inspectors that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenge shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenge shall be sustained and he shall not be allowed to vote. Section 201. Admission of challenged vote immaterial in criminal proceedings. - The admission of the challenged vote under the two preceding sections shall not be conclusive upon any court as to the legality of the registration of the voter challenged or his vote in a criminal action against such person for illegal registration or voting. Section 202. Record of challenges and oaths. - The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made. The original of this record shall be attached to the original copy of the minutes of the voting as provided in the succeeding section. Section 203. Minutes of voting and counting of votes. - The board of election inspectors shall prepare and sign a statement in four copies setting forth the following: 1. The time the voting commenced and ended; 2. The serial numbers of the official ballots and election returns, special envelopes and seals received; 3. The number of official ballots used and the number left unused; 4. The number of voters who cast their votes; 5. The number of voters challenged during the voting; 6. The names of the watchers present; 7. The time the counting of votes commenced and ended; 8. The number of official ballots found inside the compartment for valid ballots; 9. The number of valid ballots, if any, retrieved from the compartment for spoiled ballots; 10. The number of ballots, if any, found folded together; 11. The number of spoiled ballots withdrawn from the compartment for valid ballots; 12. The number of excess ballots; 13. The number of marked ballots; 14. The number of ballots read and counted; 15. The time the election returns were signed and sealed in their respective special envelopes; 219

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 16. The number and nature of protests made by watchers; and 17. Such other matters that the Commission may require. Copies of this statement after being duly accomplished shall be sealed in separate envelopes and shall be distributed as follows: (a) the original to the city or municipal election registrar; (b) the second copy to be deposited inside the compartment for valid ballots of the ballot box; and (c) the third and fourth copies to the representatives of the accredited political parties. Section 204. Disposition of unused ballots at the close of the voting hours. The chairman of the board of election inspectors shall prepare a list showing the number of unused ballots together with the serial numbers. This list shall be signed by all the members of the board of election inspectors, after which all the unused ballots shall be torn halfway in the presence of the members of the board of election inspectors. Section 205. Prohibition of premature announcement of voting. - No member of the board of election inspectors shall, before the termination of the voting, make any announcement as to whether a certain registered voter has already voted or not, as to how many have already voted or how many so far have failed to vote, or any other fact tending to show or showing the state of the polls, nor shall he make any statement at any time, except as witness before a court, as to how any person voted.

DISCUSSIONS

A. Voting Hours The Omnibus Election Code particularly under Sec. 190 provides that voting shall commence at seven o clock (7:00 AM) in the morning and shall end at three o clock in the afternoon (3:00 PM), unless there are voters present within thirty (30) meters in front of the polling place who have not yet cast their votes, in which case they shall be allowed to cast their votes. However this rule is not ironclad for as we have seen during the election last May 10, 2010 wherein the COMELEC as the result of the number of voters per precinct relaxed the voting hours up to seven o clock in the evening (7:00 PM) in some precincts to allow voters to exercise their right to suffrage. Upon termination of the casting of votes the counting of votes shall begin.

220

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

BASHER vs. COMMISSION ON ELECTIONS and AMPATUA G.R. No. 139028, April 12, 2000 The Supreme Court through the case of reinforced said provision by stating that the "election" for Barangay Maidan officials that was held after 9:00 p.m. of August 30, 1997 until the wee hours of the following day is patently irregular. The election conducted was not in accordance with law or the Comelec Rules. The Comelec erred in interpreting the second sentence of Section 22, Article IV of Comelec Resolution 2971, which states that "if at three o'clock in the afternoon, there are still voters within thirty meters in front of the polling place who have not cast their votes, the voting shall continue to allow said voters to cast their votes without interruption." This sentence presupposes that the election commenced during the official time and is simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty meters of the polling place, already waiting for their turn to cast their votes. This is clearly the meaning and intent of the word continue "to go on in a specified course of action or condition." The action or condition already subsists and is allowed to go on. Otherwise, the law should have stated instead that "the voting may also start even beyond 3:00 p.m. if there are voters within thirty meters in front of the polling place."This strained interpretation of the Comelec encourages the conduct of clandestine "elections," for it virtually authorizes the holding of elections beyond hours expressly provided for by law, even at midnight when circumstances could be more threatening and conductive to unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages the people's exercise of their fundamental right of suffrage, because it exposes them to the dangers attributed to night, especially in far-flung barangays constantly threatened with rebel and military gunfires. B. Preliminaries to Voting The BEI is required to meet at the polling place at around six o clock in the morning (6:00 AM) and ensure that they have all election paraphernalia including the Chairmans security key for operating the Precint Count Optical System (PCOS) and Personal Identification Number (PIN) of each member of the BEI for digitally signing the Election Returns (ER) before its transmission. Prior to actual voting the BEI must: a. Show to the public and watchers present that; i. The PCOS box is sealed ii. The ballot box is empty and locked; and iii. The package of official ballots and the book of Voters are both duly sealed, and thereafter, break them; 221

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS b. Count the Ballot Box Manually and state in the minutes the number of ballots; and the fact that the PCOS box, package of ballots and Book of Voters were shown to the public with its seals intact. c. Remove the seal of the PCOS box, retrieve the PCOS from the box and show that the seals of the printer cover, main memory card slot and back up memory card slot of the PCOS machine are intact. d. Install the PCOS machines and initialize the same after opening the machine by the use of the security key and the PIN the machine shall print the INITIALIZATION REPORT which must show zero votes for each candidate. This procedure is to ensure that the machine is not stuffed with votes. Casting of Votes Prior to the actual casting of votes by the voter he must first approach the chairman of the BEI, give his name and address. In addition to this information the voter should present his sequence number in the Precinct Computerized Voters List (PCVL) posted outside the polling place. Only voters listed in the Election Day Computerized Voters List (EDCVL) shall be allowed to vote. In case of any doubts as to the identity of such voter, the BEI may check his voters ID, if he has none then his photo and signature in the EDCVL or any government issued ID. If the BEI is satisfied as to his identity, his name shall be announced loudly by the Chairman, and if there are no challengers as to his identity he may affix his signature in the voting record, the chairman shall then write the number of the ballot in the corresponding space usually next to his name. After which the ballot shall be delivered folded to the voter. After the delivery of the folded ballot to the voter he may then proceed to the voting booths and fill the ballot by shading the ovals corresponding to a candidates name with a pen provided by the BEI. After which the voter shall proceed to the PCOS machine and insert his ballot. If his ballot is accepted after reading the front or back side of the same, the voters forefinger shall be marked by indelible ink. If the ballot is however rejected he is allowed to re-insert it again. If after the second time his ballot is still rejected the ballot shall be marked as rejected and the chairman shall require all the members of the BEI to put their signature at the back thereof. The ballot shall then be place in an envelope for Rejected Ballots provided by the COMELEC. In no way shall replacement ballots be issued. The owner of the rejected ballot shall be likewise be marked by the indelible ink in his forefinger. Ballots under the Automated Election System has been made to be precinct specific, this means that a ballot in one precinct cannot be used in another; for example a ballot for Muntinlupa City should be used only in Muntinlupa City and not in Las Pinas City. Defaced or those which contain unauthorized markings may also rejected. The rejection and the reason or circumstances attending such rejection shall be recorded in the minutes of voting. 222

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XVIII COUNTING OF VOTES

Section 206. Counting to be public and without interruption. - As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. The board of election inspectors shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the Commission. The Commission, in the interest of free, orderly, and honest elections, may order the board of election inspectors to count the votes and to accomplish the election returns and other forms prescribed under this Code in any other place within a public building in the same municipality or city: Provided, That the said public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound. Section. 206 of Batas Pambansa Blg. 881 (as AMENDED BY Sec. 35 RA 9369) is hereby amended to read as follows: "SEC. 206 Counting to be Public and without Interruption. - As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. The board may rearrange the physical set up of the polling place for the counting or perform any other activity with respect to the transition from voting counting. However, it may do so only in the presence of the watchers and within close view of the public. At all times, the ballot boxes and all election documents and paraphernalia shall be within close view of the watchers and the public. "The board of election inspectors shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the Commission. "The Commission, in the interest of free, orderly, and honest election, may authorize the board of election inspectors to count the votes and to accomplish the election return and other forms prescribed under the code in any other place within a public building in the same municipality or city on account of imminent danger of widespread violence or similar causes of comparable magnitude: Provided, That the transfer shall been recommended in writing by the board of election inspectors by unanimous vote and endorsed in writing by the majority of watchers present: Provided, 223

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS further, that the said public building shall not located within the perimeter of or inside a military or police camp, reservation, headquarters, detachment or field office nor within the premises of a prison or detention bureau or any law enforcement or investigation agency. "Any violation of this section, or its pertinent portion, shall constitute and election offense and shall be penalized in accordance with Batas Pambansa Blg. 881." Section 207. Excess ballots. - Before proceeding to count the votes the board of election inspectors shall count the ballots in the compartment for valid ballots without unfolding them or exposing their contents, except so far as to ascertain that each ballot is single, and compare the number of ballots in the box with the number of voters who have voted. If there are excess ballots, they shall be returned in the box and thoroughly mixed therein, and the poll clerk, without seeing the ballots and with his back to the box, shall publicly draw out as may ballots as may be equal to the excess and without unfolding them, place them in an envelope which shall be marked "excess ballots" and which shall be sealed and signed by the members of the board of election inspectors. The envelope shall be placed in the compartment for valid ballots, but its contents shall not be read in the counting of votes. If in the course of the examination ballots are found folded together before they were deposited in the box, they shall be placed in the envelope for excess ballots. In case ballots with their detachable coupons be found in the box, such coupons shall be removed and deposited in the compartment for spoiled ballots, and the ballots shall be included in the file of valid ballots. If ballots with the words "spoiled" be found in the box, such ballots shall likewise be placed in the compartment for spoiled ballots. Section 208. Marked ballots. - The board of election inspectors shall then unfold the ballots and determine whether there are any marked ballots, and, if any be found, they shall be placed in an envelope labeled "marked ballots" which shall be sealed and signed by the members of the board of election inspectors and placed in the compartment for valid ballots and shall not be counted. A majority vote of the board of election inspectors shall be sufficient to determine whether any ballot is marked or not. Non-official ballots which the board of election inspectors may find, except those which have been used as emergency ballots shall be considered as marked ballots.

224

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

CUNDANGAN vs. COMELEC G.R. No. 174392, August 28, 2007 In Ong v. Commission on Elections, G.R. No. 144197, December 13, 2000 the Court held that big bold letters that occupy all the spaces for the specific position should be invalidated, inasmuch as this evinces an evident intent to mark the ballot. PERMAN vs. COMELEC G.R. No. 174010, February 8, 2007 In order for a ballot to be considered marked, in the sense necessary to invalidate it, it must appear that the voter designedly placed some superfluous sign or mark on the ballot which might serve to identify it thereafter. No ballot should be discarded as a marked ballot unless its character as such is unmistakable. The distinguishing mark which the law forbids to be placed on the ballots is that which the elector may have placed with the intention of facilitating the means of identifying said ballot, for the purpose of defeating the secrecy of suffrage which the law establishes. Thus, marked ballots are ballots containing distinguishing marks, the purpose of which is to identify them.

VILLAGRACIA vs. COMELEC G.R. No. 168296, January 31, 2007 The distinction should always be between marks that were apparently carelessly or innocently made, which do not invalidate the ballot, and marks purposely placed thereon by the voter with a view to possible future identification, which invalidates it. The marks which shall be considered sufficient to invalidate the ballot are those which the voter himself deliberately placed on his ballot for the purpose of identifying it thereafter.

Section 209. Compartment for spoiled ballots. - The ballots deposited in the compartment for spoiled ballots shall be presumed to be spoiled ballots, whether or not they contain such notation; but if the board of election inspectors should find that during the voting any valid ballot was erroneously deposited in this compartment, or if any ballot separated as excess or marked had been erroneously deposited therein, the board of election inspectors shall open said compartment after the voting and before the counting of votes for 225

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the sole purpose of drawing out the ballots erroneously deposited therein. It shall then prepare and sign a statement of such fact and lock the box with its three keys immediately thereafter. The valid ballots so withdrawn shall be mixed with the other valid ballots, and the excess or marked ballots shall be placed in their proper envelopes which shall for such purposes be opened and again labeled, sealed, signed and kept as hereinafter provided. Section 210. Manner of counting votes. - The counting of votes shall be made in the following manner: the board of election inspectors shall unfold the ballots and form separate piles of one hundred ballots each, which shall be held together with rubber bands, with cardboard of the size of the ballots to serve as folders. The chairman of the board of election inspectors shall take the ballots of the first pile one by one and read the names of candidates voted for and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable all of the watchers to read such names. The chairman shall sign and affix his right hand thumbmark at the back of the ballot immediately after it is counted. The poll clerk, and the third member, respectively, shall record on the election returns and the tally board or sheet each vote as the names voted for each office are read. Each vote shall be recorded by a vertical line, except every fifth vote which shall be recorded by a diagonal line crossing the previous four vertical lines. One party member shall see to it that the chairman reads the vote as written on the ballot, and the other shall check the recording of the votes on the tally board or sheet and the election returns seeing to it that the same are correctly accomplished. After finishing the first pile of ballots, the board of election inspectors shall determine the total number of votes recorded for each candidate, the sum being noted on the tally board or sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made. The ballots shall then be grouped together again as before the reading. Thereafter, the same procedure shall be followed with the second pile of ballots and so on successively. After all the ballots have been read, the board of election inspectors shall sum up the totals recorded for each candidate, and the aggregate sum shall be recorded both on the tally board or sheet and on the election returns. It shall then place the counted ballots in an envelope provided for the purpose, which shall be closed signed and deposited in the compartment for valid ballots. The tally board or sheet as accomplished and certified by the board of election inspectors shall not be changed or destroyed but shall be kept in the compartment for valid ballots. 226

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The manner of casting votes was AMENDED BY SEC. 31 R.A. 9369. Section 25 of Republic Act No. 7166 is hereby amended to read as follows: Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the, poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Section 263 and 264 the Omnibus Election Code. The chairman shall first read the votes for national positions. Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881. Section 211. Rules for the appreciation of ballots. - In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voter's will: 1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office. 2. Where only the first name of a candidate is written on the ballot, which when read, has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. 3. In case the candidate is a woman who uses her maiden or married surname or both and there is another candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent. 227

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 4. When two or more words are written on the same line on the ballot, all of which are the surnames of two or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least one year in which case it shall be counted in favor of the latter. When two or more words are written on different lines on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorizes the election of more than one and there are the same number of such surnames written as there are candidates with that surname, the vote shall be counted in favor of all the candidates bearing the surname. 5. When on the ballot is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter. 6. When two words are written on the ballot, one of which is the first name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either. 7. A name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor; 8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it is used as a means to identify the voter, in which case, the whole ballot shall be void. If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency. 9. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter. 10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of the 228

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS surname accompanying the correct first name of a candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter. 11. The fact that there exists another person who is not a candidate with the first name or surname of a candidate shall not prevent the adjudication of the vote of the latter. 12. Ballots which contain prefixes such as "Sr.", "Mr.", "Datu", "Don", "Ginoo", "Hon.", "Gob." or suffixes like "Hijo", "Jr.", "Segundo", are valid. 13. The use of the nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname. 14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot. 15. If on the ballot is correctly written the first name of a candidate but with a different surname, or the surname of the candidate is correctly written but with different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates. 16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid. 17. Where there are two or more candidates voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein. 18. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered. 229

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. 20. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process are totally null and void. 21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot. 22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate, or in other parts of the ballot, traces of the letter "T", "J", and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot. 23. Any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is totally null and void. 24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but it shall not invalidate the ballot. 25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read them, the board of election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly. 26. The accidental tearing or perforation of a ballot does not annul it. 27. Failure to remove the detachable coupon from a ballot does not annul such ballot. 28. A vote for the President shall also be a vote for the VicePresident running under the same ticket of a political party, unless the voter votes for a Vice-President who does not belong to such party.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

TOLENTINO vs. COMELEC, et al. G.R. Nos. 187958, 187961 & 187962, April 7, 2010 In regular election contests, the general averment of fraud or irregularities in the counting of votes justifies the examination of the ballots and recounting of votes. This process of examination is the revision of the ballots pursuant to Section 6, Rule 20 of the 1993 COMELEC Rules of Procedure. The protests involved herein assailed the authenticity of the election returns and the veracity of the counting of the ballots. In that regard, the ballots themselves are the best evidence. The only means to overcome the presumption of legitimacy of the election returns is to examine and determine first whether the ballot boxes have been substantially preserved in the manner mandated by law. Hence, the necessity to issue the order of revision. No ruling could be handed down against the integrity of the ballot boxes that would effectively render naught the evidentiary value of the ballots they contained unless a full blown trial on the merits was first conducted. Tolentino should accept the legal impossibility for the Division to rule on the issue of inclusion or exclusion of the set-aside ballot boxes except after the revision process. BATALLA vs. COMELEC and BATALLER G.R. No. 184268, September 15, 2009 The neighborhood rule is a settled rule stating that where the name of a candidate is not written in the proper space in the ballot, but is preceded by the name of the office for which he is a candidate, the vote should be counted as valid for said candidate. Such rule is usually applied in consonance with the intent rule which stems from the principle that in the appreciation of the ballot, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty.

CUNDANGAN vs. COMELEC G.R. No. 174392, August 28, 2007 The COMELEC correctly counted the two claimed ballots in favor of Chua by reason of the neighborhood rule, considering that the name of Chua was written on the first space for Kagawads and that the space for Punong Barangay was left blank. 231

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DE LOS REYES vs. COMELEC G.R. No. 170070, February 28, 2007 In the present case, the finding of the COMELEC fell short of the foregoing standard. It saw no differences in the handwritings on the ballots yet it is silent on whether it discerned in the ballots similarities and divergences in the class and individual characteristics of the handwritings as would conclusively establish that these were made by the same hand. There was therefore incompleteness in COMELECs appreciation of the ballots that it acted prematurely when it declared said ballots invalid. Moreover, the COMELEC referred solely to the ballots to resolve the issue of whether they were prepared by one person. Delos Reyes questions this, arguing that to determine whether the ballots were invalid for having been written by one person, it was not sufficient for the COMELEC to have merely relied on the ballots alone; it should have also consulted the Minutes of Voting and Counting in the contested precincts. VELASCO vs. COMELEC G.R. No. 166931, February 22, 2007 In this ballot, the voter wrote respondents name twice on the upper right side of the ballot above the instructions to the voter and on the first line for Sangguniang Barangay Kagawad, leaving blank the space for Punong Barangay. Both names are followed by the word "Chairman." The COMELEC correctly credited respondent with the vote cast for him in this ballot following the exception to Section 211(19) of ballots with a single misplaced name followed by the title of the contested office. The voters repetition of respondents name in the first line for Sangguniang Barangay Kagawad followed by the word "Chairman" renders the vote valid. The voters intent to cast his vote for respondent as Punong Barangay or barangay chairman is obvious when he wrote the word "Chairman" which can only stand for "[Barangay] Chairman" after respondents name. xxxx This Court is ever mindful of the need, under our republican form of government, to give full expression to the voters will as indicated in the ballots. This explains the numerous exceptions we have carved out of Section 211(19). However, liberality in ballot appreciation ends where subversion of the legislatures will begins. Congress enacted Sections 195 and 211(19) precisely to guard against the extreme irregularity Exhibits "9" and "13" present. Thus, we here draw the line between permissible deviations from Sections 195 and 211(19) and flagrant disregard of an elementary rule in voting under our present electoral system.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS CAYETANO vs. COMELEC G.R. Nos. 166388 & 166652, January 23, 2006 The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but finality. This is so because "the conduct of plebiscite and determination of its result have always been the business of the COMELEC and not the regular courts. Such a case involves the appreciation of ballots which is best left to the COMELEC. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable expertise in the field of election and related laws." Its acts, therefore, enjoy the presumption of regularity in the performance of official duties.

DE GUZMAN, Jr. vs. SISON 355 SCRA 69 It is perplexing why respondent judge insisted in applying Batas Pambansa Blg. 222 which pertained only to the election of barangay officials in 1982 instead of Batas Pambansa Blg. 882 which expressly governs mayoralty elections including those held in 1998; Laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities.

VILLAROSA vs. COMELEC 319 SCRA 470 When the COMELEC draws its conclusion that a particular nickname is not one by which a candidate is generally or popularly known purely from the allegations of a letter-petition without first affording the candidate the opportunity to explain her side, it acts in excess of its jurisdiction. Deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration is not applicable where the movants immediate concern for doing so was not mainly to exercise her right to be heard, but to have the COMELEC seasonably reconsider its resolution while canvassing was still at the precinct or municipal level. The COMELEC Rules of Procedure require that all actions filed with the Commission be prosecuted and defended in the name of the real party in interest. 233

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS All election cases shall first be heard and decided by a division of the COMELEC before being brought to the Commission en banc for reconsideration. A directive by the COMELEC to disallow a candidates use of a particular nickname clearly necessitates a determination of whether such candidate is in fact not generally or popularly known as such in the locality, calling for the Commission's exercise of its adjudicatory powers and falls within the concept of an "election contest." The Supreme Court is hard put to treat the issue as administrative when petitioner stands to be so adversely affected by the relief asked for and the fact that the petition is in the form of a letter does not make the issues posed therein less substantial.

Section 212. Election returns. - The board of election inspectors shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in said section. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote. The returns shall also show the date of the election, the polling place, the barangay and the city of municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors. The Commission shall take steps so that the entries on the first copy of the election returns are clearly reproduced on the second, third, fourth, fifth, and sixth copies thereof, and for this purpose the Commission shall use a special kind of paper. Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public, and 234

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS placed in the proper envelope, which shall likewise be sealed and distributed as herein provided. Any election return with a separately printed serial number or which bears a different serial number from that assigned to the particular polling place concerned shall not be canvassed. This is to be determined by the board of canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to the serial number of the election return assigned to the said voting precinct, unless the Commission shall order in writing for its canvassing, stating the reason for the variance in serial numbers. If the signatures and/or thumbmarks of the members of the board of election inspectors or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the board of election inspectors concerned to complete the returns.

DISCUSSIONS

Section 212 of Batas Pambansa Blg. 881 as amended, is hereby to read as follows (AMENDED BY Sec. 32 RA 9369): SEC. 212. Election Returns. - The board of election inspectors shall prepare the election returns simultaneously with the counting of votes in the polling places as prescribe in Section 210 hereof. The recording of vote shall be made as prescribed in said section. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote. The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total numbers of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not 235

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors. The commission shall take steps so that the entries on the first copy of the election returns are clearly reproduced on the second, third, fourth, fifth, sixth copies thereof, and for the purpose this Commission shall use a special kind of paper. Immediately upon the accomplishment of the election return for national position, the poll clerk shall announce the posting of the second copy of the election return on a wall with sufficient lighting within the premises of the polling place or counting center. He shall then proceed to do the same in the presence of the other members of the Board, the watchers and those present in the polling place or counting center. Without delay and, when feasible, he shall secure an image of the election return using a secured data capturing device and immediately thereafter, while in the premises of the polling place or counting center, directly print thirty (30) copies of the election return. Once the prints have been produced, the poll clerk shall call the other members of the board to authenticate each print copy by closely comparing the same with the election return posted on the wall in the presence of the watchers and within view of the public. If the Board finds each print a faithful reproduction of the election return, all members thereof shall annotate and sign a certification to that effect on the bottom front of the print. Each certified printed copy shall be placed in an envelope and distributed as herein provided. Designated recipients of the certified print copies may receive their copies at the polling place or counting center. Immediately upon the accomplishment of the election returns for local position, the second copy of the same shall be posted on a wall with sufficient lighting within the premises of the polling place. The other copies of election returns for both national and local position shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided." Any election return with a separately printed serial number or which bears a different serial number from that assigned to the particular polling place concerned shall not be canvassed. This is to be determined by the board canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to the serial number of the election return assigned to said voting precinct, unless the 236

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Commission shall order in writing for its canvassing, stating the reason for the variance in serial numbers. If the signatures and/or thumb marks of the members of the board of election inspectors or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the board of election inspectors concerned to complete the returns. The citizen's arm is mandated to present for perusal its copy of the election return to the board of election canvassers upon the request of any interested candidate. Any violation of this election or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881 . In addition, the following shall likewise be guilty of an election offense: (a) Any Person who removes the election return posted on the wall, whether within or after the prescribed forty-eight (48) hours of posting, or defaces the same in any manner; (b) Any person who simulates an actual election return or a print or digital copy thereof; (c) Any person who simulates the certification in a print of an election return; (d) The chairman or any member of the board of election inspectors who, during the prescribe period of posting, removes the election return from the wall on which it had been posted other than for the purpose of immediately transferring it to a more suitable place; (e) The chairman or any member of the board of election inspectors who signs or authenticates a print of the election return outside of the polling place; and (f) The chairman or any member of the board of election inspectors who signs or authenticates a print which bears an image different from the election return produced after counting and posted on the wall.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE TORRES vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL 351 SCRA 312 Where the protesters allegation that the valid votes cast in his or her favor were substituted with fake stray ballots during the post-counting stage, it is imperative to resolve whether there were indeed fake ballots and whether these were placed inside the ballot boxes to replace the votes of the protested. In an election contest where what is involved is the correctness of the number of votes of each candidate, the best and most conclusive evidence are the ballots themselves, but where the ballots cannot be produced or are not available, the election returns would be the best evidence. The Supreme Court's jurisdiction to review decisions and orders of electoral tribunals operates only upon a showing of grave abuse of discretion on the part of the tribunal. The cardinal objective of ballot appreciation is to discover and give effect to, rather than frustrate the intention of the voters, thus, every ballot shall be presumed valid unless clear and good reasons justify its rejection. RECABO, Jr. v. COMELEC 308 SCRA 793 A certificate of votes does not constitute sufficient evidence of the true and genuine results of the election; only election returns are. The doctrine that a mere technicality cannot be used to frustrate the people will find no application in a case where the results of the election have not been fully established. Disunity and discord amongst members of a political party should not be allowed to create a mockery of the electoral process, which envisions one candidate from a political party for each position. It is well-settled that a certificate filed beyond the deadline is not valid. It is settled that the disqualification or non-qualification of the winner in a vice mayoralty race does not justify the proclamation of the defeated candidate who obtained the second highest number of votes. The vacancy in the position of vice-mayor due to the ineligibility of the winning candidate should be filled up in accordance with Section 44 of the Local Government Code of 1991 which provides that the highest ranking sanggunian member shall become the vice-mayor. Section 213. Proclamation of the result of the election in the polling place. Upon the completion of the election returns, the chairman of the board of election inspectors shall orally and publicly announce the total number of votes received in the election in the polling place by each and every one of the candidates, stating their corresponding office. 238

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 214. Disposition of election returns. (1) In a presidential election: the board of election inspectors shall prepare in handwriting and sign the returns of the election in sextuplicate in their respective polling place in a form to be prescribed by the Commission. One copy shall be deposited in the compartment of the ballot box for valid ballots, and in the case of municipalities two copies including the original copy shall be handed to the municipal election registrar who shall immediately deliver the original copy to the provincial election supervisor and forward the other copy to the Commission, and one copy each to the authorized representatives of the accredited political parties. In the case of the cities, the city registrar shall retain the original copy for submission to the provincial election supervisor, and forward the other copy to the Commission. (2) In the election for Members of the Batasang Pambansa: the original of the election returns shall be delivered to the election registrar of the city or municipality for transmittal to the chairman of the provincial board of canvassers, and direct to the chairman of the city or district board of canvassers in the urbanized cities and the districts of Metropolitan Manila, as the case may be, for use in the canvass. The second copy shall likewise be delivered to the election registrar for transmittal to the Commission. The third copy shall be deposited in the compartment for valid ballots. The fourth copy shall be delivered to the election registrar who shall use said copy in the tabulation of the advance results of the election in the city or municipality. The fifth and sixth copies shall each respectively be delivered to the members representing political parties represented in the board of election inspectors. (3) In local elections: the original copy of the election returns shall be delivered to the city or municipal board of canvassers as a body for its use in the city of municipal canvass. The second copy shall be delivered to the election registrar of the city or municipality for transmittal to the provincial board of canvassers as a body for its use in the provincial canvass. The third copy shall likewise be delivered to the election registrar for transmittal to the Commission. The fourth copy shall be deposited in the compartment for valid ballots. The fifth and sixth copies shall each respectively be delivered to the members representing the political parties represented in the board of election inspectors. The Commission shall promulgate rules for the speedy and safe delivery of the election returns.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS AMENDED BY SEC. 33 RA 9369. Section 27 of Republic Act No. 7166, as amended by Republic Act No. 8045 and Republic Act No. 8173 is hereby further amended to read as follows: SEC. 27. Number of Copies of Election Returns and their Distribution. - The board of election inspectors shall prepare in handwriting the election returns in their respective polling place, in the number of copies herein provided and in the form to be prescribed and provided by the Commission. "The copies of election returns shall be distributed by the chairman of the board of election inspectors as follows: (a) In the election of president, vice-president, senators and members of the House of Representatives including the party-list representatives: (1) The first copy shall be delivered to the city or municipal board of canvassers; (2) The second copy to be posted on a wall within the premises of the polling place; (3) The third copy, to the congress, directed to the President of the Senate; (4) The fourth copy. to the Commission; (5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law; (6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; (7) The seventh copy, to a citizens' authorized by the Commission to conduct an unofficial count: Provided, however, that the accreditation of the citizens' arm shall be subject to the provision of Section 52(k) of Batas Pambansa Bldg. 881; and (8) The eight copy shall be deposited inside the compartment of the ballot box for valid ballots; and (b) In the election of local officials;

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (1) The First copy shall be delivered to the city or municipal board of canvassers; (2) The second copy to be posted on a wall within the premises of the polling place; (3) The third copy, to the Commission; (4) The fourth copy, to the provincial board of canvassers; (5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law; (6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; (7) The seventh copy, to a citizens' authorized by the Commission to conduct an unofficial count: Provided, however, that the accreditation of the citizens' arm shall be subject to the provisions of Section 52(k) of Batas Pambansa Bldg. 881; and (8) The eighth copy shall be deposited inside the compartment of the ballot box for valid votes. The copy of the election return posted on the wall shall be open for public viewing at any time of the day for forty-eight (48) hours following its posting. Any person may view or capture an image of the election return by means of any data capturing device such as, but not limited to, cameras at any time of the day for forty-eight (48) hours following its posting. After the prescribed period for posting, the chairman of the board of election inspectors shall collect the posted election returns and keep the same in his custody to be produced for image or data capturing as may be requested by any voter or any lawful purpose as may be ordered by competent authority. Except for those copies that are required to be delivered, copies of election returns may be claimed at the polling place. Any unclaimed copy shall be brought by the chairman of the board of election inspectors to the canvassing center where the recipients or their representatives may claim them. Copies still unclaimed at the canvassing center shall be deemed placed in the custody of the chairman of the board of election inspectors, who shall produce them when requested by the recipient or when ordered by a competent authority. 241

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Thirty (30) certified print copies of the election return for national positions shall be distributed as follows: (a) The first fourteen (14) copies shall be given to the fourteen (14) accredited major national parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 hereof; (b) The next three copies shall be given to the three accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 Hereof; (c) The next five copies shall be given to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; (d) The next two copies shall be given to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; (e) The next four copies to the major citizens' arms, including the accredited citizens' arms and other non-partisan groups or organizations enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881; (f) The next copy to be placed inside the compartment of the ballot box for valid ballots; and (g) The last copy to the provincial board of canvassers. The certified print copies may be claimed at the polling place. Any unclaimed copy shall be brought by the chairman of the board of election inspectors to the canvassing center where the recipients or representatives may claim them. Copies still unclaimed at the canvassing center shall be placed in the custody of the chairman of the board election inspectors, who shall produce them when requested by the recipient or when ordered by a competent authority. Any provision of law to the contrary notwithstanding, any of the recipients of the print or digital copies of the election return may conduct an unofficial consolidation of votes and may announce the result to the public. 242

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Commission shall post its digital files in its website for the public to view or download at any time of the day. The Commission shall maintain the files at least three years from the date of posting. "Any violation of this section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881; Section 215. Board of election inspectors to issue a certificate of the number of votes polled by the candidates for an office to the watchers. After the announcement of the results of the election and before leaving the polling place, it shall be the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the watchers. All the members of the board of election inspectors shall sign the certificate. AMENDED BY Section 16 RA 6646. Certificates of Votes. - After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers. The certificate shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct and the date and time issued, and shall be signed and thumb marked by each member of the board. Section 216. Alterations and corrections in the election returns. - Any correction or alteration made in the election, returns by the board of election inspectors before the announcement of the results of the election in the polling place shall be duly initialed by all the members thereof. After the announcement of the results of the election in the polling place has been made, the board of election inspectors shall not make any alteration or amendment in any of the copies of the election returns, unless so ordered by the Commission upon petition of the members of the board of election inspectors within five days from the date of the election or twenty-four hours from the time a copy of the election returns concerned is opened by the board of canvassers, whichever is earlier. The petition shall be accompanied by proof of service upon all candidates affected. If the petition is by all members of the board of election inspectors and the results of the election would not be affected by said correction and none of the candidates affected objects thereto, the Commission, upon being satisfied of the veracity of the petition and of the error alleged therein, shall order the board of election inspectors to make the proper correction on the election returns.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS However, if a candidate affected by said petition objects thereto, whether the petition is filed by all or only a majority of the members of the board of election inspectors and the results of the election would be affected by the correction sought to be made, the Commission shall proceed summarily to hear the petition. If it finds the petition meritorious and there are no evidence or signs indicating that the identity and integrity of the ballot box have been violated, the Commission shall order the opening of the ballot box. After satisfying itself that the integrity of the ballots therein has also been duly preserved, the Commission shall order the recounting of the votes of the candidates affected and the proper corrections made on the election returns, unless the correction sought is such that it can be made without need of opening the ballot box. Section 217. Delivery of the ballot boxes, keys and election supplies and documents. - Upon the termination of the counting of votes, the board of election inspectors shall place in the compartment for valid ballots, the envelopes for used ballots hereinbefore referred to, the unused ballots, the tally board or sheet, a copy of the election returns, and the minutes of its proceedings, and then shall lock the ballot box with three padlocks and such safety devices as the Commission may prescribe. Immediately after the box is locked, the three keys of the padlocks shall be placed in three separate envelopes and shall be sealed and signed by all the members of the board of election inspectors. The authorized representatives of the Commission shall forthwith take delivery of said envelopes, signing a receipt therefor, and deliver without delay one envelope to the provincial treasurer, another to the provincial fiscal and the other to the provincial election supervisor. The ballot box, all supplies of the board of election inspectors and all pertinent papers and documents shall immediately be delivered by the board of election inspectors and the watchers to the city or municipal treasurer who shall keep his office open all night on the day of election if necessary for this purpose, and shall provide the necessary facilities for said delivery at the expense of the city or municipality. The book of voters shall be returned to the election registrar who shall keep it under his custody. The treasurer and the election registrar, as the case may be, shall on the day after the election require the members of the board of election inspectors who failed to send the objects referred to herein to deliver the same to him immediately and acknowledge receipt thereof in detail. Section 218. Preservation of the voting record. - The voting record of each polling place shall be delivered to the election registrar who shall have custody of the same, keeping them in a safe place, until such time that the Commission shall give instructions on their disposition.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 219. Preservation of the ballot boxes, their keys and disposition of their contents. (a) The provincial election supervisor, the provincial treasurer and the provincial fiscal shall keep the envelope containing the keys in their possession intact during the period of three months following the election. Upon the lapse of this period, unless the Commission has ordered otherwise, the provincial election supervisor and the provincial fiscal shall deliver to the provincial treasurer the envelope containing the keys under their custody. (b) The city and municipal treasurer shall keep the ballot boxes under their responsibility for three months and stored unopened in a secure place, unless the Commission orders otherwise whenever said ballot boxes are needed in any political exercise which might be called within the said period, provided these are not involved in any election contest or official investigation, or the Commission or other competent authority shall demand them sooner or shall order their preservation for a longer time in connection with any pending contest or investigation. However, upon showing by any candidate that the boxes will be in danger of being violated if kept in the possession of such officials, the Commission may order them kept by any other official whom it may designate. Upon the lapse of said time and if there should be no order to the contrary, the Commission may authorize the city and municipal treasurer in the presence of its representative to open the boxes and burn their contents, except the copy of the minutes of the voting and the election returns deposited therein which they shall take and keep. (c) In case of calamity or fortuitous event such as fire, flood, storm, or other similar calamities which may actually cause damage to the ballot boxes and/or their contents, the Commission may authorize the opening of said ballot boxes to salvage the ballots and other contents by placing them in other ballot boxes, taking such other precautionary measures as may be necessary to preserve such documents. Section 220. Documents and articles omitted or erroneously placed inside the ballot box. - If after the delivery of the keys of the ballot box to the proper authorities, the board of election inspectors shall discover that some documents or articles required to be placed in the ballot box were not placed therein, the board of election inspectors, instead of opening the ballot box in order to place therein said documents or articles, shall deliver the same to the Commission or its duly authorized representatives. In no instance shall the ballot box be reopened to place therein or take out therefrom any document or article except to retrieve copies of the election returns which will be needed in any canvass and in such excepted 245

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS instances, the members of the board of election inspectors and watchers of the candidates shall be notified of the time and place of the opening of said ballot box: Provided, however, That if there are other copies of the election returns outside of the ballot box which can be used in canvass, such copies of the election returns shall be used in said canvass and the opening of the ballot box to retrieve copies of the election returns placed therein shall then be dispensed with.

DISCUSSIONS

Counting of Votes The COMELEC is authorized to prescribe the manner and procedure of counting of votes under the automated system, provided that apart from the electronically stored result, thirty (30) copies of the election returns are printed (Sec. 18 R.A 9369). Section 31 of Republic Act 9369 provides that added to the manner of counting of votes under Sec. 12 Par. 4 of R.A 6646 and Sec. 210 of B.P 881, the chairman, poll clerk and the third member must assume the position as to provide the watchers and the public to an unimpeded view of the ballot being read by the chairman, of the election returns, and the tally board being accomplished by the poll clerk without ever allowing them to touch these election documents. The table should be cleared of all writing materials. In all instances the chairman must first read the votes for national positions. Any violation of these requirements shall be considered as an election offense punishable under Secs.263 and 264 of B.P 881. As to the actual counting procedure the chairman shall first insert his Security key in the appropriate slot in the PCOS Machine, then he shall press the CLOSE VOTING OPTION in the screen menu. The machine shall then prompt the operator to confirm the closing of the voting after which the machine shall no longer accept any ballot. After which the poll clerk and the third member of the BEI shall enter their respective PIN the PCOS Machine shall then automatically count the votes. After the counting the PCOS machine shall automatically print eight (8) copies of election returns for national positions followed by another eight (8) copies for the local positions in their respective polling place. Each copy of the election returns must bear the appropriate control marks to determine the time and place of printing, it must likewise be signed and thumb marked by all the members of the BEI and watchers present. The copies shall be then distributed by the chairman of the BEI in the following manner:

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS A. For National positions such as the election of president, vice-president, senators and members of the House of Representatives including the Party-List: a. First (1st) Copy to the city or municipal Board of Canvassers; b. Second (2nd) Copy posted on a wall within the premises of the polling place; c. Third (3rd) Copy to the Congress directed to the President of the Senate; d. Fourth (4th) Copy to the COMELEC e. Fifth (5th) Copy to the dominant majority party as determined by the COMELEC in accordance with law; f. Sixth (6th) Copy the dominant minority party as determined by the COMELEC in accordance with law; g. Seventh (7th) Copy to a citizens arm authorized by the COMELEC to conduct an unofficial count provided that the accreditation of the citizens arm shall be subject to the provision of Sec. 52(k) of B.P 881; and h. Eighth (8th) Copy shall be deposited inside the compartment of the ballot box for valid ballots B. As for local officials; a. First (1st) Copy to the city or municipal Board of Canvassers; b. Second (2nd) Copy posted on a wall within the premises of the polling place; c. Third (3rd) Copy to the COMELEC; d. Fourth (4th) Copy to the provincial board of canvassers; e. Fifth (5th) Copy to the dominant majority party as determined by the COMELEC in accordance with law; f. Sixth (6th) Copy the dominant minority party as determined by the COMELEC in accordance with law; g. Seventh (7th) Copy to a citizens arm authorized by the COMELEC to conduct an unofficial count provided that the accreditation of the citizens arm shall be subject to the provision of Sec. 52(k) of B.P 881; and h. Eighth (8th) Copy shall be deposited inside the compartment of the ballot box for valid ballots (Sec. 19 R.A 9369) Note: The Chairman shall announce the posting of the second copy of the ER for both the national and local positions on a wall within the premises of the polling place; it should be sufficiently lighted and accessible to the public. The public may view or capture an image of the election returns by means of any data capturing device such as but not limited to cameras. After forty-eight (48) hours following the posting of the chairman of the BEI shall take down the posted election returns and keep the same in his custody to be produced for image or data capturing as maybe requested by any voter or for any lawful purpose as 247

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS maybe ordered by competent authority (Sec. 33 R.A 9369). For the purpose of canvassing the votes the election returns shall be electronically transmitted to be used by the Board of Canvassers (BOC). The election returns must be digitally signed by the members of the BEI for refusal to sign the same is considered as an election offense. If the returns are successfully received a message to that effect shall appear on the screen of the PCOS machine. Sec. 38 (f) of COMELEC Resolution No. 8739 provides that after the printing of all the reports: 1. The members of the BEI shall affix their signatures and thumb marks on the 30 printed ERs. 2. The BEI shall ask the watchers present to affix their signatures on the printed election returns. Unless otherwise ordered by the Commission, the BEI shall not stop or postpone the counting until it has been completed. In case a PCOS fails to count the vote or transmit/print the results, the Operator shall announce the error and undertake the necessary corrective measures. Should the Operator be unable to correct the error, he shall call on the Technical Support personnel assigned to the Voting Center for assistance. Such fact shall be noted in the Minutes (Sec. 38 (f) COMELEC Resolution No. 8739).

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XIX CANVASS AND PROCLAMATION

Section 221. Board of canvassers. - There shall be a board of canvassers for each province, city, municipality, and district of Metropolitan Manila as follows: (a) Provincial board of canvassers. - the provincial board of canvassers shall be composed of the provincial election supervisor or a senior lawyer in the regional office of the Commission, as chairman, the provincial fiscal, as vice-chairman, and the provincial superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party in the constituency concerned entitled to be represented, as members. (b) City board of canvassers. - the city board of canvassers shall be composed of the city election registrar or a lawyer of the Commission, as chairman, the city fiscal and the city superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members. (c) District board of canvassers of Metropolitan Manila - the district board of canvassers shall be composed of a lawyer of the Commission, as chairman, and a ranking fiscal in the district and the most senior district school supervisor in the district to be appointed upon consultation with the Ministry of Justice and the Ministry of Education, Culture and Sports, respectively, and one representative from each of the ruling party and the dominant opposition political party in the constituency concerned, as members. (d) Municipal board of canvassers. - the municipal board of canvassers shall be composed of the election registrar or a representative of the Commission, as chairman, the municipal treasurer, and the district supervisor or in his absence any public school principal in the municipality and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members. (e) Board of canvassers for newly created political subdivisions the Commission shall constitute a board of canvassers and appoint the members thereof for the first election in a newly created 249

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS province, city or municipality in case the officials who shall act as members thereof have not yet assumed their duties and functions. Section 222. Relationship with candidates and other members. - The chairman and the members of the board of canvassers shall not be related within the fourth civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the same board. Section 223. Prohibition against leaving official station. - During the period beginning election day until the proclamation of the winning candidates, no member or substitute member of the different boards of canvassers shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the Commission. Section 224. Feigned illness. - Any member of the board of canvassers feigning illness in order to be substituted on election day until the proclamation of the winning candidates shall be guilty of an election offense. Section 225. Vote required. - A majority vote of all the members of the board of canvassers shall be necessary to render a decision. Section 226. Incapacity and substitution of members of boards of canvassers. - In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman, the Commission shall designate the provincial or city fiscal to act as chairman. Likewise, in case of non-availability, absence, disqualification due to relationship, or incapacity for any cause, of such designee, the next ranking provincial or city fiscal shall be designated by the Commission and such designation shall pass to the next in rank until the designee qualifies. With respect to the other members of the board of canvassers, the Commission shall appoint as substitute the provincial, city or municipal officers of other government agencies in the province, city or municipality, as the case may be, and with respect to the representatives of the accredited political parties, the Commission shall appoint as substitutes those nominated by the said political parties. AMENDED BY Section 21 RA 6646. Substitution of Chairman and Members of the Board of Canvassers. - In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman, the Commission shall appoint as substitute a ranking lawyer of the Commission. With respect to the other members of the board, the Commission shall appoint as substitute the following in the order named: The Provincial Auditor, the Registrar of Deeds, the Clerk of Court nominated by the Executive Judge of the Regional Trial Court, and any other available appointive provincial official in the case of the provincial 250

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS board of canvassers; the officials in the city corresponding to those enumerated, in the case of the city board of canvassers; and the Municipal Administrator, the Municipal Assessor, the Clerk of Court nominated by the Executive Judge of the Municipal Trial Court, or any other available appointive municipal officials, in the case of the municipal board of canvassers. Section 227. Supervision and control over board of canvassers. - The Commission shall have direct control and supervision over the board of canvassers. Any member of the board of canvassers may, at any time, be relieved for cause and substituted motu proprio by the Commission. Section 228. Notice of meeting of the board. - At least five days before the meeting of the board, the chairman of the board shall give notice to all members thereof and to each candidate and political party of the date, time and place of the meeting. AMENDED BY Section 23 RA 6646. Notice of Meetings of the Board. - At least five (5) days before the initial meeting of the board of canvassers, the chairman of the board shall give written notice to all members thereof and to each candidate and political party presenting candidates for election in the political subdivision concerned of the date, time and place of the meeting. Similar notice shall also be given for subsequent meetings unless notice has been given in open session of the board. Proof of service of notice to each member, candidate and political party shall be attached to and shall form part of the records of the proceedings. If notice is given in open session, such fact shall be recorded in the minutes of the proceedings. Section 229. Manner of delivery and transmittal of election returns. (a) For the city and municipal board of canvassers, the copy of the election returns of a polling place intended for the city or municipal board of canvassers, duly placed inside a sealed envelope signed and affixed with the imprint of the thumb of the right hand of all the members of the board of election inspectors, shall be personally delivered by the members of the board of election inspectors to the city or municipal board of canvassers under proper receipt to be signed by all the members thereof. (b) For the provincial and district boards of canvassers in Metropolitan Manila, the copy of the election returns of a polling place intended for the provincial or district board of canvassers in the case of Metropolitan Manila, shall be personally delivered by the members of the board of election inspectors to the election 251

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS registrar for transmittal to the proper board of canvassers under proper receipt to be signed by all the members thereof. The election registrar concerned shall place all the returns intended for the board of canvassers inside a ballot box provided with three padlocks whose keys shall be kept as follows: one by the election registrar, another by the representative of the ruling party and the third by the representative of the dominant political opposition party. For this purpose, the two political parties shall designate their representatives whose names shall be submitted to the election registrar concerned on or before the tenth day preceding the election. The three in possession of the keys shall personally transmit the ballot box, properly locked, containing the election returns to the board of canvassers. Watchers of political parties, coalition of political parties, and of organizations collectively authorized by the Commission to designate watchers shall have the right to accompany transmittal of the ballot boxes containing the election returns. It shall be unlawful for any person to delay, obstruct, impede or prevent through force, violence, coercion, intimidation or by any means which vitiates consent, the transmittal of the election returns or to take away, abscond with, destroy, deface or mutilate or substitute the election returns or the envelope or the ballot box containing the election returns or to violate the right of the watchers. The watchers of the political parties, coalition of political parties and the candidates shall have the right to accompany the members of the board of election inspectors or the election registrar in making the delivery to the boards of canvassers. Section 230. Safekeeping of transmitted election returns. - The board of canvassers shall keep the ballot boxes containing the election returns in a safe and secure room before and after the canvass. The door to the room must be padlocked by three locks with the keys thereof kept as follows: one with the chairman, the other with the representative of the ruling party, and the other with the representative of the dominant opposition political party. The watchers of candidates, political parties, coalition of political parties and organization collectively authorized by the Commission to appoint watchers shall have the right to guard the room. Violation of this right shall constitute an election offense. Section 231. Canvass by the board. - The board of canvassers shall meet not later than six o'clock in the afternoon of election day at the place designated by the Commission to receive the election returns and to immediately canvass those that may have already been received. It shall meet continuously from day to day until the canvass is completed, and may 252

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS adjourn but only for the purpose of awaiting the other election returns from other polling places within its jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far for each candidate for each office, furnishing the Commission in Manila by the fastest means of communication a certified copy thereof, and making available the data contained therein to the mass media and other interested parties. As soon as the other election returns are delivered, the board shall immediately resume canvassing until all the returns have been canvassed. The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay. Failure to comply with this requirement shall constitute an election offense. Subject to reasonable exceptions, the board of canvassers must complete their canvass within thirty-six hours in municipalities, forty-eight hours in cities and seventy-two hours in provinces. Violation hereof shall be an election offense punishable under Section 264 hereof. With respect to the election for President and Vice-President, the provincial and city boards of canvassers shall prepare in quintuplicate a certificate of canvass supported by a statement of votes received by each candidate in each polling place and transmit the first copy thereof to the Speaker of the Batasang Pambansa. The second copy shall be transmitted to the Commission, the third copy shall be kept by the provincial election supervisor or city election registrar; the fourth and the fifth copies to each of the two accredited political parties. AMENDED BY SEC. 40 9369. Section 29 of Republic Act No. 7166 is hereby amended to read as follows: "SEC.29. Number of Copies of Certificate of Canvass and their Distribution. - a) the certificate of canvass for president, vicepresident, senator and member of the house of Representatives and elective provincial official shall be prepared in seven copies by the city or municipal board of canvassers and distributed as follows: (1) The first copy shall be delivered to the provincial board of canvassers for use in the canvass election results for president, vice- president, senator and member of the House of representatives and elective provincial officials: (2) The second copy shall be sent to the Commission; 253

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (3) The third copy shall be posted on a wall within the premises of the canvassing center (4) The fourth copy shall be kept by the chairman of the Board: and (5) the fifth copy shall be given the citizens' arm designated by the Commission to conduct a media-based unofficial count, and the sixth and seventh copies shall be given to the citizen's arm designated by the Commission to conduct a media - based unofficial count , and the sixth and seventh copies shall be given to the representatives of two of the six major political parties in accordance with the voluntary agreement of the parties. If no such agreement is reached, the commission shall decide which parties shall receive the copies of the certificate of the canvass on the basis of the criteria provided in Section 26 hereof. The parties receiving the certificate shall have obligation to furnish the other parties with authentic copies thereof with the at least possible delay. b) The certificates of canvass for president, vice president, senators shall be prepared in seven (7) copies by the city boards of canvassers of cities comprising one or more legislative districts, by provincial boards of canvassers in the Metro Manila Area, and distributed as follows: (1) The first copy shall be sent to the Congress directed to the President of the Senate for use in the canvass of election results for president and vice-president; (2) The second copy shall be sent to the Commission for use in the canvass of the election results for Senators; (3) The third copy shall be posted on a wall within the premises of the canvassing center; (4) The fourth copy shall be kept by the Chairman of the Board; and (5) The fifth copy shall be given to the citizens' s arm designated by the Commission to conduct a media -based unofficial count, and the sixth and seventh copies shall be given to the representatives of two of the six major political parties. If no such agreement is reached, the commission shall decide which parties shall receive the copies of the certificate of canvass on the basis of the criteria provided in Section 26 hereof. The parties receiving the certificates shall have the obligation to furnish the other parties with authentic copies thereof with the least possible delay.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The of the certificate of canvass posted on the wall shall be open for public viewing at any time of the day for forty -eight (48) hours following its posting. Any person may view or capture an image of the certificate of canvass. After the prescribed period for posting, the chairman of the board of canvassers shall collect the posted certificate of canvass and keep the same in his custody to be produced for image or data capturing as may be requested by any voter or for any lawful purpose as may be ordered competent authority. Except for those copies that are required to be delivered, copies of certificates of canvass may be claimed at the canvassing center. Any unclaimed copy shall be deemed placed in the custody of the chairman of the board of canvassers, who shall produce them requested by the recipient or when ordered by a competent authority. The thirty (30) certified print copies of the certificate canvass for national positions shall be distributed as follows: (a) The first fourteen (14) copies shall be given to the fourteen (14) accredited major national parties in accordance with a voluntary agreement among them. If no such agreement is reached, the commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 hereof; (b) The next three copies shall be given to the three accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies in the basis of criteria analogous to the provided in Section 26 hereof; (c) The next five copies shall be given to national broadcast or print media entities as may be equitably determined by the commission in view of propagating the copies to the widest extent possible; (d) The next two copies shall be given to local broadcast or print media entitles as may be equitably determined by the Commission in view propagating the copies to the widest extent possible; (e) The next four copies to the major citizen's arms, including accredited citizen's arm, and other non-partisan groups or organizations enlisted by the commission pursuant to section 52(K) of Batas Pambansa Blg. 881; and

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (f) The last two copies to be kept in file by the chairman of the board of canvassers to be subsequently distributed as the national board of canvassers may direct. The certified print copies may be claimed at the canvassing center. Any unclaimed copy shall be deemed place in the custody of the chairman of the board of canvassers, who shall produce them when requested by the recipient or when ordered by a competent authority. The commission shall post its digital files in its website for the public to view or download at any time of the day. The commission shall maintain the files for at least three years from the date of posting. Any violation of this section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881." Section 232. Persons not allowed inside the canvassing room. - It shall be unlawful for any officer or member of the Armed Forces of the Philippines, including the Philippine Constabulary, or the Integrated National Police or any peace officer or any armed or unarmed persons belonging to an extralegal police agency, special forces, reaction forces, strike forces, home defense forces, barangay self-defense units, barangay tanod, or of any member of the security or police organizations of government ministries, commissions, councils, bureaus, offices, instrumentalities, or governmentowned or controlled corporations or their subsidiaries or of any member of a privately owned or operated security, investigative, protective or intelligence agency performing identical or similar functions to enter the room where the canvassing of the election returns are held by the board of canvassers and within a radius of fifty meters from such room: Provided, however, That the board of canvassers by a majority vote, if it deems necessary, may make a call in writing for the detail of policemen or any peace officers for their protection or for the protection of the election documents and paraphernalia in the possession of the board, or for the maintenance of peace and order, in which case said policemen or peace officers, who shall be in proper uniform, shall stay outside the room within a radius of thirty meters near enough to be easily called by the board of canvassers at any time. Section 233. When the election returns are delayed, lost or destroyed. - In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election 256

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election.

JURISPRUDENCE

CHU vs. COMELEC 319 SCRA 482 Pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. All pre-proclamation controversies on election returns or certificates of canvass shall be disposed of summarily first, by the board of canvassers, and then, by the COMELEC. In a pre-proclamation controversy, the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns. The legislative intent behind the summary disposition of pre-proclamation controversies is to give life to the policy that the canvass and proclamation be delayed as little as possible for it is in the public interest that the position for which the election was held should be filled promptly, even though the proclamation of the winning candidates be provisional in nature, in that the same may still be subject to the results of the election protests that may be subsequently filed. One of the issues properly pertaining to a pre-proclamation controversy is that the election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS To prove the intimidation which petitioner asserts was exerted upon the members of the BEI by Sanchez and her supporters should be properly raised in an election protest. If there had been sham voting or minimal voting which was made to appear as normal through the falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy. In the absence of palpable errors and/or material defects which are clearly discernible on the face of an election return, the same should be included in the canvassing by the Board of Canvassers.

Section 234. Material defects in the election returns. - If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction: Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates. Section 235. When election returns appear to be tampered with or falsified. - If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are 258

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass. Section 236. Discrepancies in election returns. - In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned. DISCUSSIONS

SECTIONS 235/236 AMENDED BY Section 17 RA 6646. Certificate of Votes as Evidence. - The provisions of Sections 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of canvassers by at least two members of the board of election inspectors who issued the certificate: Provided, That failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

OLONDRIZ, Jr. vs. COMELEC 313 SCRA 128 A recount of votes is in order where a discrepancy exists between the votes written in words or in figures. Public interest and sovereign will of the people expressed in their ballots must, at all times, be the paramount consideration in an election controversy.

Section 237. When integrity of ballots is violated. - If upon the opening of the ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs of replacement, tampering or violation of the integrity of the ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping. Section 238. Canvass of remaining or unquestioned returns to continue. In cases under Sections 233, 234, 235 and 236 hereof, the board of canvassers shall continue the canvass of the remaining or unquestioned election returns. If, after the canvass of all the said returns, it should be determined that the returns which have been set aside will affect the result of the election, no proclamation shall be made except upon orders of the Commission after due notice and hearing. Any proclamation made in violation hereof shall be null and void.

JURISPRUDENCE

CARUNCHO III vs. COMELEC 315 SCRA 693 Due process in quasi-judicial proceedings before the COMELEC requires due notice and hearing. The proclamation of a winning candidate cannot be annulled if he has not been notified of the motion to set aside his proclamation.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS By real interest is meant a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest. Quasi-judicial agencies should be joined as public respondents but it is the duty of the private respondent to appear and defend such agency. An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted. Section 239. Watchers. - Each candidate, political party or coalition of political parties shall be entitled to appoint one watcher in the board of canvassers. The watcher shall have the right to be present at, and take note of, all the proceedings of the board of canvassers, to read the election returns without touching them, to file a protest against any irregularity in the election returns submitted, and to obtain from the board of canvassers a resolution thereon. Sec. 240. Election resulting in tie. - Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may be favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof. Nothing in this section shall be construed as depriving a candidate of his right to contest the election. DISCUSSIONS BOARD OF CANVASSERS Kinds and Composition of the Boards of Canvassers: 1. National Board of Canvassers for President and Vice-President composed of the Senate and the House of Representatives in a joint public session assembled. After transmission of the certificates of canvass and upon receipt, the President of the Senate shall, not later than thirty (30) days after election day, open all the certificates upon determination of authenticity and due execution of the same canvass the 261

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS results for the president and vice-president and ultimately proclaim the winner (Sec. 23 R.A 9369). National Board of Canvassers for Senators and Party-list Representatives composed of the Chairman and the members of the COMELEC sitting en banc. It shall canvass the results by consolidating the certificates of canvass electronically transmitted and ultimately proclaim the winners. Provincial Board of Canvassers composed of the provincial election supervisor or a lawyer in the regional office of the COMELEC as chairman, the provincial fiscal, as vice-chairman, and the provincial superintendent of schools as member. It shall canvass the votes for president, vice-president, senators, members of the House of Representatives and local elective provincial officials by consolidating all the results electronically transmitted from the city/municipalconsolidating centers contained in the data storage devices submitted by the BOC of municipalities and component cities. Upon completion of the canvass it shall produce the certificates of canvass votes for the president, vice- president and senators and thereafter proclaim the elected winners of the House of Representatives and Provincial Officials (Sec. 20 R.A 9369). City Board of Canvassers composed of the city election registrar or a lawyer of the COMELEC, as chairman, the city fiscal as vice-chairman and the city superintendent of schools as member. In case there two or more city election registrar the COMELEC shall designate the one who shall act as chairman. It shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective city officials by consolidating all the certificates of canvass electronically transmitted or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass it shall proceed with the canvass of the votes for president, vice-president, and senators and thereafter proclaim the winning member of the House of Representatives and city officials. Municipal Board of Canvassers composed of the election registrar or a representative of the COMELEC, as chairman, the municipal treasurer, as vice-chairman and the most senior district school supervisor or in his absence a principal of the school district or elementary school as member. It shall canvass the votes for the president, vice-president, senators, and parties or organizations or coalitions participating under the party-list systemby consolidating the electronically transmitted results. Upon completion of the canvass it shall print the certificate of canvass of votes for the president, vice-president, and senators and members of the House of Representatives and elective provincial officials and thereafter proclaim the winning municipal candidates. District Board of Canvassers - In the Metro Manila area, each municipality comprising a legislative district shall have a district board of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective municipal officials by consolidating the electronically transmitted results 262

2.

3.

4.

5.

6.

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall produce the certificate of canvass of votes for president, vice-president, and senators and thereafter, proclaim the elected members of the House Representatives and municipal officials. The district board of canvassers of each legislative district comprising two municipalities in the Metro Manila area shall canvass the votes for president, vice-president, senators and members of the House of Representatives by consolidating the certificates of canvass electronically transmitted from the city/municipal consolidating centers or the results contained in the data storage devices submitted by the municipal board of canvassers of the component municipalities. Upon completion of the canvass. It shall produce a certificate of the canvass votes for president, vice-president, senators and thereafter, proclaim the elected members of the House of Representatives in the legislative district. Rules and Procedure 1. The chairperson of the Board of Election Inspectors must validate the IButton security key. 2. Such chairperson then closes the voting, by pressing the CLOSE VOTING option on the screen of the PCOS machine, no ballots shall be accepted after this process. 3. The two other members of the Board of Election inspectors, being the poll clerk and two other members must enter their assigned PIN, afterwhich the PCOS machine will count the votes cast and accepted. 4. Eight (8) copies of both the national and local election, respectively, shall be printed after the machine is done counting the votes. 5. The chairman of the Board of Election Inspectors shall announce the total number of votes received by the candidates and their respective positions. The poll clerk will announce the posting of a second copy of the election returns for national and local positions. 6. It shall be posted on a wall within the premises of the polling place.

JURISPRUDENCE DOROMAL vs. BIRON and COMELEC G.R. No. 181809, February 17, 2010 In sum, it was highly irregular for the COMELEC to outright exclude the subject returns resulting in the disenfranchisement of some 1,127 voters as per the records of this case. The proper procedure in case of discrepancy in the other authentic copies of the election returns is clearly spelled out in Section 236 of the OEC. For contravening this legal provision, the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction. 263

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SAO, Jr. vs. COMELEC, et al. G.R. No. 182221, February 3, 2010 Consistent with the summary character and limited scope of a pre-proclamation controversy, Section 20 of RA 7166 lays down the procedure to be followed when Election Returns (ER) are contested before the Board of Canvassers (BOC). Compliance with this procedure is mandatory, so as to permit the BOC to resolve the objections as quickly as possible. Section 20 of RA 7166 and Section 36 of COMELEC Resolution 2962 provide that any candidate may contest the inclusion of an ER by making an oral objection at the time the questioned return is submitted for canvass; the objecting party shall also submit his objections in writing simultaneously with the oral objections. The BOC shall consider the written objections and opposition, if any, and summarily rule on the petition for exclusion. Any party adversely affected by such ruling must immediately inform the BOC if he intends to appeal such ruling. After the BOC rules on the contested returns and canvasses all the uncontested returns, it shall suspend the canvass. Any party adversely affected by the ruling has 48 hours to file a Notice of Appeal; the appeal shall be filed within five days. Upon receipt of the notice of appeal, the BOC will make its report to the COMELEC, and elevate the records and evidence. Moreover, pursuant to Section 235 of the Omnibus Election Code, in cases where the ERs appear to have been tampered with, altered or falsified, the COMELEC shall examine the other copies of the questioned returns and, if the other copies are likewise tampered with, altered, falsified, or otherwise spurious, after having given notice to all candidates and satisfied itself that the integrity of the ballot box and of the ballots therein have been duly preserved, shall order a recount of the votes cast, prepare a new return which shall be used by the BOC as basis for the canvass, and direct the proclamation of the winner accordingly. Based on the records of this case, we find that petitioner failed to timely make his objections to the contested ERs.

264

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XX PRE-PROCLAMATION CONTROVERSIES

Sec. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

DISCUSSIONS

The 1987 Constitution, Art. IX-C, Section 2 (3) provides that Commission shall decide, except those involving the right to vote, all questions affecting elections. The Commission shall decide questions affecting the conduct of casting and counting of votes and it will be determined based on the evidences presented by the parties if it amounts to a pre-proclamation controversy or if it is an election contest. As we are adopted the automated election, the old way of voting is long gone. The Board of Canvassers are required to use the electronically transmitted returns for the process of generating their certificate of canvass. The purpose of pre-proclamation controversy is to ascertain the winner/s in the election on the basis of the election returns transmitted to the Board of Canvassers. Pre-Proclamation Controversies A Pre-Proclamation Controversy under Rule 3 of Resolution no. 8804: Section 1. Pre-Proclamation Controversy. - A pre-proclamation controversy refers to the proceedings of the board of canvassers which may be raised by any candidates or by any registered political party or coalition of political parties, or by any accredited and participating party list group, before the board or directly with the Commission. It covers only two issues: a. Illegal composition of the Board of Canvassers (BOC); 265

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS There is illegal composition of the BOC when, among other similar circumstances, any of the members do not possess legal qualifications and appointments. The information technology capable person required to assist the BOC by Republic Act No. 9369 shall be included as among those whose lack of qualifications may be questioned. (Sec. 1 Rule 4 of Resolution no. 8804) b. Illegal proceedings of the BOC. There is illegal proceedings of the BOC when the canvassing is a sham or mere ceremony, the results of which are pre-determined and manipulated as when any of the following circumstances are present: 1. precipitate canvassing; 2. terrorism; 3. lack of sufficient notice to the members of the BOC's; 4. Improper venue (Sec. 2, Rule 4 of Resolution no. 8804) The basis of the canvass shall be electronically transmitted results. The COMELEC has exclusive jurisdiction in pre-proclamation controversies arising from national, regional pr local elections. A pre-proclamation controversy may be raised: 1. by any candidate 2. by any registered political party, organization, or coalition of political parties before the BOC, or directly with the Commission. (Sec. 2 Rule 3 of Resolution no. 8804) The following are the Rights of Political Parties and Candidates Before the Board of Canvassers in Pre-Proclamation cases : 1. All registered political parties, organizations, or coalitions of political parties, and accredited citizens' arms, and candidates, have the right to be present and to be represented by counsel during the canvass of election returns, or certificates of canvass. 2. Only one counsel may argue for each registered political party, organization, or coalition of political parties, accredited citizens' arm or candidate. 3. No dilatory action shall be allowed by the BOC. It may impose time limits for oral arguments. 4. All registered political parties, organizations, or coalitions of political parties, and candidates, are entitled to obtain a copy of the Statement of Votes per precinct and a copy of the certificate of canvass duly authenticated by the BOC. (Sec. 3, Rule 3 of Resolution no. 8804) 266

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE As held in the case of Dagloc vs. COMELEC (G.R. No. 138969, December 17, 1999), it is summary in nature and it intends to stop the practice of grabbing the proclamation and prolonging the protest, balancing such situations against shortening the time where no winners are proclaimed.

LUCMAN vs. COMELEC G.R. No. 166229, June 29, 2005 Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the COMELEC is limited to an examination of the election returns on their face. It is beyond the COMELECs jurisdiction to go beyond the face of the returns or investigate election irregularities. The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde, such as the List of Voters with Voting Record and the VRRs, is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a preproclamation controversy. Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court (RTC). In a regular election protest, the parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate.

SARANGANI vs. COMELEC G.R. Nos. 155560-62, November 11, 2003 The Supreme Court stated that its function is merely to check or to ascertain where COMELEC might have gone far astray from parameters laid down by law but not to supplant its factual findings. So long as its findings are not arbitrary and unfounded, the Court is not at liberty to discard and ignore such findings. In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution on which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy would be a regular election protest and not a pre-proclamation controversy. 267

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The records, as well as the findings of the COMELEC en banc, would disclose that the old PBC did not convene on its scheduled hearing on 30 June 2001 where it was supposed to promulgate its ruling; instead, it merely submitted the same to the Office of the Secretary of the COMELEC on 02 July 2001. On said date (of 02 July 2001), the COMELEC, without being aware that the original PBC submitted its rulings to the Office of the Secretary of COMELEC, issued an order changing the composition of the Board of Canvassers. It was then before the new Board of Canvassers that petitioner could raise his objections to the ruling of the original board. In sum, the COMELEC en banc has not committed grave abuse of discretion in annulling and setting aside the ruling of its Second Division and in ordering the inclusion of the COCs from the municipalities of Wao and Bubong, Lanao del Sur, in the canvass of the 14th May 2001 election results for the position of governor of Lanao del Sur. The Court reiterates the rule that, unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not be interfered with by the Court.

MACABAGO vs. COMELEC and SALACOP G.R. No. 152163, November 18, 2002 On May 22, 2001, Macabago was proclaimed by the Municipal Board of Canvassers as the winning candidate for the Municipal Mayor of Saguiran, Lanao del Sur, with a lead of 198 votes as against Salacop. Salacop filed a petition against the proclaimed officials, including the Vice Mayor and Councilors, as well as the members of the Municipal Board of Canvassers. He alleged that there was a massive substitution of votes and rampant irregularities in voting procedures in a number of precincts, and failure of the BEI to comply with the Omnibus Election Code. Macabago denied the allegations of Salacop that raised a preproclamation controversy and rationalized that the grounds relied by Salacop would be proper in an election protest. The COMELEC en banc took cognizance of the petition and directed the Election Officer of Saguiran, Lanao del Sur, to bring to and produce before the COMELEC Office in Manila the original Voter Registration Records, presented by Salacop, of the questioned precincts for technical examination. The COMELEC concluded that there was convincing proof of massive fraud in the conduct of the elections. It further noted that the outcome of the petition would adversely affect the result of the elections. Macabago filed a petition for certiorari under Rule 65. It was held that the petition filed by Salacop is not a pre-proclamation controversy or failure of election. Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which Salacop should have made specific verbal objections subsequently reduced to writing. The proceedings are summary in nature; thus, the reception of evidence aliunde, e.g. the original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look beyond or behind election returns 268

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS which are on their face regular and authentic returns. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a preproclamation controversy. Such issues should be posed and resolved in a regular election protest. Salacops petition with the COMELEC alleged that fraud and irregularities are perpetrated by unscrupulous individuals, in conspiracy with the Board of Election Inspectors. Such grounds are not proper bases for a pre-proclamation controversy but are appropriate for a regular election contest within the original jurisdiction of the Regional Trial Court. Neither is Salacops petition one for declaration of a failure of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166. Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or declaration of failure of election and the calling of a special election as provided for in Section 6, shall be decided by the COMELEC sitting En Banc by a majority of its members. Before the COMELEC can grant a verified petition seeking to declare a failure of election, the concurrence of two (2) conditions must be established, namely: (a) no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; (b) the votes cast would affect the result of the election. While fraud is a ground to declare a failure of election, such fraud must be one that prevents or suspends the holding of an election, including the preparation and transmission of the election returns. "Failure to elect" must be understood in its literal sensewhich is, nobody emerges as a winner. The barefaced fact that a candidate has been proclaimed and has assumed office does not deprive the COMELEC of its authority to annul any canvass and illegal proclamation. A petition for the annulment of election is not the same as one involving a preproclamation controversy. Salacop alleged in his petition with the COMELEC En Banc that the elections ensued in the subject precincts and that Macabago emerged as the winner and was in fact proclaimed as such by the Board of Election Inspectors. In sum then, the grounds alleged are those for a regular election protest and are not proper in a pre-proclamation controversy; nor is such petition one for annulment of the elections or for a declaration of failure of elections in the municipality of Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal of the petition instead of issuing the assailed order. The COMELEC thus committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the same. The error is correctible by the special civil action for certiorari. 269

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies. - The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annual partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections. JURISPRUDENCE

SANDOVAL vs. COMELEC and ORETA G.R. No. 133842, January 26, 2000 As a general rule, candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the COMELEC. Preproclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns. The COMELEC has exclusive jurisdiction over all pre-proclamation controversies. As an exception, however, to the general rule, Section 15 of Republic Act (RA) 7166 prohibits candidates in the presidential, vicepresidential, senatorial and congressional elections from filing pre-proclamation cases. The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of initiating the proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by written petition. In either case; notice and hearing is required. This is clear from the language of the law.

Sec. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers;

270

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Proceedings of an improperly constituted Board of Canvassers are illegal. It is also illegal for the board to transact business without a quorum or without due notice to its members. Questions affecting the composition or proceeding of the board may be initiated in the board or to the commission. In Pacis vs. COMELEC, it was held that the parties adversely affected by a ruling of the board regarding the above matter may appeal the matter to the Commission within three (3) days from the ruling thereon, and it shall be summarily decided within five (5) days from the filing to the Commission.

JURISPRUDENCE In Pacis vs. COMELEC, 25 SCRA 391 it stated therein that where six substitute members of the Board of Canvassers were drawn from the same party without asking the other party to recommend their substitute the canvass and the resulting proclamation are both null and void. In Navarro vs. COMELEC (G.R. 150799, February 3, 2003), however, non-compliance by a BOC of the prescribed canvassing procedure is not an illegal proceeding under paragraph (a) of sec 243 of the Omnibus Election Code, given the summary nature of a preproclamation controversy, consistent with the laws desire to canvass and proclamation be delayed as little as possible. Active participation in the proceedings of the Board of Canvassers may be deemed waiver on the part of a petitioner. (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; Under R.A. 9369, we now have an electronic canvassing wherein election returns are in electronic and printed form directly produced by the counting or voting machine and the elections returns that will be used are those that are electronically transmitted by the Board of Inspectors which bear their digital signatures which are hard to tamper unless, they block the transmission, use jammers or other device that will transmit or send a false election returns. The board of canvassers may proclaim the candidates elected notwithstanding the fact that not all returns have been transmitted electronically as long as the missing election returns will not affect the result of the election.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and An election return prepared at the point of a gun is not a return at all. In the automated elections duress, threats, coercion, or intimidation is limited since the BEI will only have to push the button and affix their signature to transmit the election returns. In Baterina vs. COMELEC, absence or lack of digital signatures in the transmitted returns, while intended to discourage the preparation of falsified returns, does not give rise to a presumption that the election returns are manufactured or spurious and should consequently be excluded in the canvass. Sebastian vs. COMELEC, that a pre-proclamation controversy is limited to an examination of the election returns on their face. The COMELEC as a general rule need not go beyond the face of the returns and investigate the alleged election irregularities. (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

JURISPRUDENCE

BELAC vs. COMELEC 356 SCRA 394 Section 241 of the Omnibus Election Code provides that a pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the Board or directly with the Commission. Section 243 of the Omnibus Election Code enumerates the specific issues that may be raised in a pre-proclamation controversy. In a pre-proclamation controversy, the Commission on Elections (COMELEC), as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. The policy consideration underlying the delimitation both of substantive ground and procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. Pre-proclamation controversies are mandated by law to be summarily disposed of. Preproclamation controversies, by their very nature, are to be resolved in summary 272

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS proceedings which obviously should be disposed of without any unnecessary delay. Sec. 244. Contested composition or proceedings of the board. - When the composition or proceedings of the board of canvassers are contested, the board of canvassers shall, within twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely affected, may appeal the matter to the Commission within five days after the ruling with proper notice to the board of canvassers. After due notice and hearing, the Commission shall decide the case within ten days from the filing thereof. During the pendency of the case, the board of canvassers shall suspend the canvass until the Commission orders the continuation or resumption thereof and citing their reasons or grounds therefor. Sec. 245. Contested election returns. - Any candidate, political party or coalition of political parties, contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under this article or in Sections 234, 235 and 236 of Article XIX shall submit their verbal objections to the chairman of the board of canvassers at the time the questioned returns is presented for inclusion or exclusion, which objections shall be noted in the minutes of the canvassing. The board of canvassers upon receipt of any such objections shall automatically defer the canvass of the contested returns and shall proceed to canvass the rest of the returns which are not contested by any party. Within twenty-four hours from and after the presentation of a verbal objection, the same shall be submitted in written form to the board of canvassers. Thereafter, the board of canvassers shall take up each contested return, consider the written objections thereto and summarily rule thereon. Said ruling shall be made oral initially and then reduced to writing by the board within twenty-four hours from the time the oral ruling is made. Any party adversely affected by an oral ruling on its/his objection shall immediately state orally whether it/he intends to appeal said ruling. The said intent to appeal shall be stated in the minutes of the canvassing. If a party manifests its intent to appeal, the board of canvassers shall set aside the return and proceed to rule on the other contested returns. When all the contested returns have been ruled upon by it, the board of canvassers shall suspend the canvass and shall make an appropriate report to the Commission, copy furnished the parties. The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party and any proclamation made in 273

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

JURISPRUDENCE

OCAMPO vs. COMELEC, MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and SALALILA, G.R. No. 136282, February 15, 2000 That the election returns were obviously manufactured must be evident from the face of said documents. In the absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must perforce prevail. The COMELEC en banc did not find any signs of alterations or tampering on the election returns nor did the petitioner present any hard evidence of such irregularity. The only thing which we surmise came too close to such a change was the written superimposition made on the family names of the candidates in the election returns of the clustered precincts 93-A and 94-A. This was certainly not an alteration or tampering since the COMELEC en banc found that such superimposition was necessarily done in order to make the names readable. Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing which petitioner considered the returns to be "obviously manufactured" was the fact that petitioner garnered zero (0) votes in three (3) precincts which was allegedly statistically improbable. For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the case at bar.

Sec. 246. Summary proceedings before the Commission. - All preproclamation controversies shall be heard summarily by the Commission after due notice and hearing, and its decisions shall be executory after the lapse of five days from receipt by the losing party of the decision of the Commission, unless restrained by the Supreme Court. Sec. 247. Partial proclamation. - Notwithstanding the pendency of any preproclamation controversy, the Commission may, motu proprio or upon the filing of a verified petition and after due notice and hearing, order the 274

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. Sec. 248. Effect of filing petition to annual or to suspend the proclamation. The filing with the Commission of a petition to annual or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings.

DISCUSSIONS

The pre-proclamation controversies must first be heard and decided by a Division of the Commission. The Commission en banc does not have the authority to hear and decide these cases in the first instance. Under the Comelec Rules and Procedures, it is classified as special cases an under the Constitution, the division of the Commission are vested with authority to hear and decide it and have to be heard and adjudicated first in these level. It is not a procedural rule but jurisdictional. However, a petition for correction of manifest errors in the Statement of Votes or in the tabulation or tallying of the results, a preproclamation controversy, may be filed directly with the COMELEC en banc. Instances where it can be brought and be heard by the Commission en banc under the COMELEC Rules of Procedure includes: 1. When the issue involves the illegal composition or proceedings of the board of canvassers as when a majority of all the members do not hold legal appointments or are in fact usurpers; or when the canvassing has been a mere ceremony that was predetermined and manipulated to result in nothing but a sham as where there was convergence of circumstances of precipitate canvassing, terrorism, lack of sufficient notice to the members of the board of canvassers and disregard of manifest irregularities on the face of the questioned returns or certificates of canvass in appropriate cases; 2. When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where: 1. a copy of the election returns or certificate of canvas was tabulated more than once, 2. two or more copies of the election returns of one precinct, or two or more copies of certificate of canvas were tabulated separately, 3. there had been a mistake in the copying of the figures into the statement of votes or into the certificate of canvas, 4. so called returns from non-existent precincts were included in the canvass, but such errors could not have been discovered during the canvassing despite the exercise of due 275

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS diligence and proclamation of the winning candidates had already been made. In all the above situations, it is required that the number of questioned votes will affect the results of the election. RA 7166 sec 15 provides that for purposes of the election for President, VicePresident, Senator and Member of the House of Representatives, no preproclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, as the case may be. Section 17 Article VI of the 1987 Constitution provides that the Electoral Tribunal of the House of Representatives is the sole judge of all contests relating to the election, returns, and qualifications of its members. Electoral Tribunal of the Senate and the House of Representatives the sole judge of all contests relating to the election, returns, and qualifications of their respective members. Petitioners objection relating to the preparation transmission and appreciation of the election returns or certificates of canvass falls within the sole jurisdiction of the House Electoral Tribunal. JURISPRUDENCE Vinzons-Chato vs COMELEC, G.R. No. 176563 April 2, 2007, stated that the winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. Stated in another manner, where the candidate has already been proclaimed winner in the congressional elections, the remedy of the petitioner is to file an electoral protest with the HRET. However, in Chavez vs. COMELEC held that the COMELEC has exclusive jurisdiction over all pre-proclamation controversies. As an exception, however, to the general rule, Sec 15 of RA 7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing preproclamation cases. The exception to the exception is the second sentence of Sec 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election.

276

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS In Sandoval vs. COMELEC G.R. No. 133842, January 26, 2000, it was held that the prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum these sensitive posts. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of congress and he cannot invoke Art VI sec 17 of the 1987 Constitution, as against the COMELECs exercising jurisdiction to pass upon the question of the candidates qualifications or disqualifications, such as the lack of residence requirement. In Pangilinan vs. COMELEC, G.R. No. 105278, November 18, 1993, the Court held that the commission clearly has authority over issues affecting the elections of members of congress, who have not been proclaimed and taken their oath in cases involving: 1. manifest errors in the certificates of canvass or election returns which may be corrected by the canvassing board motu propio upon written complaint of interested persons, or by the COMELEC in a petition filed directly with it or upon proper appeal from the ruling of the bard of canvassers; and 2. the composition of the board or its proceedings which may be decided by the canvassing board or by the COMELEC upon proper petition directly filed with it or upon appeal from the ruling of the bard of canvassers. In Pimentel vs. Comelec, Supreme Court recognizes an exception and allows the canvassing body motu propio or an interested person to file a written complaint for the correction of manifest errors in the election returns or certificates of canvass even in elections for President, Vice-President, Senators, and Members of the House of Representatives for the simple reason that the correction of manifest error must will not prolong the process of canvassing nor delay the proclamation of the winner in the election. Issues that cannot be raised in a pre-proclamation controversy: 1. cases that require the appreciation of ballots 2. technical examination of the signatures and thumb marks of voters A pre-proclamation controversy is limited to challenges directed against the Board of Canvassers not he Board of Election Inspectors. An action for annulment of election returns may be proper grounds for pre-proclamation controversies. A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The pre-proclamation controversy in most cases should be dismissed and the proper remedy instead is an election protest before the proper forum. 277

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS In Lee vs. COMELEC (G.R. No. 157004, July 4, 2003), analogously, if the apparent return looks regular on its face but one can present prima facie evidence that the return, though apparently regular, is not genuine not only because it may have been transmitted from an irregular and unofficial site, the COMELEC may not be entirely powerless to find a basis for the exclusion of the contested return. This scenario, however, it requires technical expertise and the translation of electronic evidence into one legally acceptable for objection purposes in a proper pre-proclamation controversy.

DAGLOC vs. COMELEC 321 SCRA 273 The period for filing an election protest under Section 289 of the former Election Code is suspended by the filing of a petition for annulment of proclamation. The period for filing an election protest under Section 289 of the former Election Code is suspended by the filing of a petition for annulment of proclamation. Filing of pre-proclamation controversies under Section 248 of the Omnibus Election Code is not the only ground for the suspension of proclamation. Two other instances are provided in Republic Act No. 6646, known as "The Electoral Reforms Law of 1987." Not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. Grounds which are proper for electoral protests should not be allowed to delay the proclamation of the winners.

278

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XXI ELECTION CONTESTS

Election Contests are adversarial proceedings by which matters involving the title or claim to an elective office are settled, made before or after proclamation of a winner, regardless of whether or not the contestant is claiming the office in dispute. Its purpose is to determine the candidate lawfully elected to office. The term Election Protest is a contest between the defeated and winning candidate on the ground of fraud or anomalies accompanying the casting and counting of ballots and the preparation of the election returns. It raised the question as to which candidate actually received the highest number of votes and is therefore entitled to hold office. The laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may net be defeated by technical infirmities. General rule, is that the filing of a pre-proclamation case suspends the period for filing an election protest and the filing of a proper petition to annul the proclamation of the respondent suspends the running of the period to file an election protest. Conversely, an election protest or a petition for quo warranto is a bar to the subsequent filing of a preproclamation controversy or a petition to annul proclamation. It may also amount to the abandonment of these actions if such were filed earlier than the election contest. Exception, it may still proceed to its conclusions despite the filing of an election protest or petition for quo warranto. The exceptions are laid down in Samad case 1) where the board of canvassers was improperly constituted 2) where quo warranto was not properly remedy 3) where what was filed was not really a petition for quo warranto or an election protest but a petition to annul proclamation 4) where the filing of a quo warranto petition or in election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam 5) where the proclamation was null void.

279

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

ELECTION PROTEST Introduction and Jurisdiction The COMELEC is the sole judge of all contests relating to election, returns and qualifications of all Members of Congress, elective regional, provincial and city officials (Sec. 249 B.P 881). This provision has been amended by the 1987 Constitution particularly sec. 17 Art. VI in so far as the jurisdiction to hear and decide all questions relating to election, returns, and qualifications of senators and members of the House of Representatives is now vested with the respective electoral tribunals of the Senate and House of Representatives. Under the abovementioned provision, electoral tribunals assumes jurisdiction only when the candidates become a member thereof. Thus a candidate who has not won and taken an oath of office cannot invoke the provision of the constitution, the COMELEC may therefore assume jurisdiction. After the proclamation and oath taking, any question relating to such controversies comes within the jurisdiction of the electoral tribunal, which may be raised as an election protest or petition for quo warranto. On the other hand, election contests relating to municipal offices come within the jurisdiction of the Regional Trial Courts (RTC) while those involving barangay officials fall under the jurisdiction of the proper municipal or mertropolitan courts. The COMELEC still has an appellate jurisdiction over the appeals from either court. Definition of Terms 1. Election Protests are those election contests relating to election and returns. It can be filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same office, and who has not himself caused or contributed to the irregularities or frauds of which he complains. It maybe filed based on any or all of the following ground; Fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes. Election protests are considered as special summary proceedings due to the fact that the issues must be settled expeditiously between the winning and losing candidates so as not to prejudice the public who badly needs their representatives. It main purpose is to determine whether or not the winning candidate proclaimed by the Board of Canvassers (BOC) is the candidate really chosen by the electorate. 280

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Election protests maybe filed within 10 days from proclamation of the results of the election. This rule is further explained by the Supreme Court in the case of Roquero vs. COMELEC 289 SCRA 150 wherein they said that if, after 5 days from the proclamation of the winning candidate, the loser files a motion for reconsideration in the pre-proclamation controversy, there are only 5 days which remain of the period within which to file an election protest. a. Effect of the Death of the Appellant The Supreme Court in the case of De Castro v. COMELEC, 267 SCRA 806 ruled that the death of the protestant does not extinguish an election protest. As stated earlier an election protest is one imbued with public interest which raises its level above mere ordinary civil actions, because it involves not only the determination of the private interest of the rival candidates but also the paramount need of settling once and for all the uncertainty that clouds the real choice of the people with respect to the one who shall discharge the prerogatives of the office under consideration. However, it is not the heirs of the deceased who shall be the successors-in-interest to the suit, but the succeeding candidate-elect. For example, if the deceased was a mayoralty candidate, the real party in interest in the continuation of the proceedings is the Vice-Mayor-elect, as he will succeed in the event that the protestant is declared to be the person lawfully elected to the office. Likewise in the case of Fernando Poe Jr. vs. Gloria Macapagal-Arroyo, Presidential Electoral Tribunal Case No. 002, March 29, 2005, the Supreme Court said that if persons not real parties in the action could be allowed to intervene, proceedings will be unnecessarily complicated, expensive and interminableand this is not the policy of the law. Inasmuch as no real parties such as the vice-presidential aspirants in the 2004 elections have come forward to intervene, or to be substituted for the deceased protestant, it is far more prudent to abide by the existing and strict limitations on intervention and substitution under the law and the rules. b. Effect of Running and Winning for another Position The Supreme Court in the case of Miriam Defensor Santiago vs. Fidel Valdez Ramos (253 SCRA 599) stated that election protest filed by Santiago was rendered moot and academic by the election of Santiago as a Senator in the May 1995 elections and protest or at the very least, in the language of Moraleja v Relova, abandoned her determination to protect and pursue the public interest involved on who is the real choice of the electorate.

281

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 2. Quo Warranto can be filed by any registered voter in the constituency on the ground of Ineligibility or disloyalty to the Republic of the Philippines. And like that of election protests it must be filed within 10 days from proclamation of the results of the election. For those contests regarding the election of municipal or barangay officials, the contestant must file a sworn petition for quo warranto with the Regional Trial Court (RTC) or to the Municipal or Metropolitan Trial Court (MTC or MeTC), respectively. However Sec. 2 Rule 6 of resolution no. 8804 provides that: Section 2. Election protest. - A petition contesting the elections or returns of an elective regional, provincial, or city official shall be filed with the Commission by any candidate who was voted for in the same office and who received the second of third highest number of votes or, in a multi-slot position, was among the next four candidates following the last ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes. The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee.

The procedure and requirements for filing an Election Protest: 1. An election protest or petition for quo warranto shall be filed directly with the Commission in ten (10) legible copies plus such number of copies corresponding to the number of protestees (Sec.3 Rule 6 of Resolution no. 8804) 2. An election protest or petition for quo warranto shall specifically state the following facts: a. The position involved; b. That the protestant was a candidate who has duly filed a certificate of candidacy and has been voted for the same office; c. The date of proclamation; and d. The number of votes credited to the parties per proclamation. An election protest shall also state: e. The total number of precincts of the region, province or city concerned; f. The protested precincts and votes of the parties in the protested precincts per the Statement of Votes By Precinct or, if the votes of the parties are not specified an explanation why the votes are not specified; g. A detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts. (Sec.7 Rule 6 of Resolution no. 8804) 282

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. Within a non-extendible period of ten days following the date of proclamation. (Sec.3 Rule 6 of Resolution no. 8804) 4. Each contest shall refer exclusively to one office but contents for offices of the Sangguniang Pampook, Sangguniang Panlalawigan or Sangguniang Panglungsod may be consolidated in one case. (Sec.3 Rule 6 of Resolution no. 8804) 5. Service and filing of pleadings, including the initiatory petition and other papers, shall be done personally. Except with respect to papers emanating from the Commission, a resort to other modes of service must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule shall be a cause to consider the pleading or paper as not filed. (Sec.4 Rule 6 of Resolution no. 8804) 6. An election protest shall be verified by an affidavit stating that the affiant has read the petition and that the allegations therein are true and correct of affiant's own knowledge or based on authentic records. A verification based on "information and belief" or upon the "knowledge, information and belief" is not a sufficient verification. (Sec.5 Rule 6 of Resolution no. 8804) 7. The protestant shall personally sign the certificate of non-forum shopping which must be annexed to the election protest. An unverified petition or one with insufficient verification or unaccompanied by a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the reglementary period to file an election protest.(Sec.5 Rule 6 of Resolution no. 8804) Recount Sec. 2 Rule 15 of Resolution no. 8804 provides that: There shall be constituted such number of recount committees as may be necessary. The list of the recount committees shall be submitted by the Division Clerk of the Commission, through the Director IV, Electoral Contests Adjudication Department, to the Presiding Commissioner of either the First or Second Division. Each recount committee shall be composed of a Recount Coordinator/Chairman who shall be a lawyer of the Commission, recorder, clerk, typist and ballot box custodian and one representative each from the protestant and the protestee. The Commission shall designate the Recount Coordinators/ Chairman from among its personnel. The parties shall also designate their respective alternative representatives. The recount committee shall conduct the recount in the Commission's premises or at such other places as may be designated by the Commission, but in every case under its strict supervision.

283

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Once commenced, the recount shall continue from day to day as far as practicable until terminated. a. Period for Recount. - recount shall be conducted from 8:30 o'clock in the morning to 12:00 noon and from 1:30 to 4:30 o'clock in the afternoon from Monday to Friday, except on non-working holidays. The members of the Recount Committee may take a fifteen-minute break in each session. b. Recount to continue even if a party representative is absent or late. The recount of ballots shall not be delayed or postponed by reason of the absence or tardiness of a party representative as long as the Recount Coordinator and one party representative are present. The Commission may at any time designate another Recount Coordinator if the regular Recount Coordinator fails for any reason to report. c. If the representative of the protestee is absent or late. - If the representative of the protestee is absent or late for thirty minutes and no alternate appears as a substitute, the recount shall, nevertheless, commence; the protestee shall be deemed to have waived the right to appear and to object to the ballots in the precinct or precincts scheduled for recount on that particular day. d. If the representative of protestant or counter-protestant, or of both parties fail to appear. - If the representative of the protestant, or of both parties and alternates fail to appear for no justifiable reason within one hour after fixed hours from the start of the recount, the ballot boxes scheduled for that day, and the corresponding keys in the possession of the chairperson, shall be returned to the ballot box custodian of the Commission and shall no longer be recounted; it is understood that the parties waive their right to recount the same, and the Recount Coordinator concerned shall state such facts in the corresponding Recount report. (Sec. 4 Rule 15 of Resolution 8804) Sec. 6, Rule 15 of Resolution no. 8804 provides: The recount of the votes on the ballots shall be done manually and visually and according to the procedures hereunder: a. At the preliminary conference the date and the place of the recount and the number of the recount committees shall be set. b. At the appointed place and day, the recount committee/s shall convene. c. At the same place and day, the ballot boxes containing the ballots from the protested precincts, the data storage device used in said precincts, as well as the machine or any device that can be used to authenticate or assure the genuineness of the ballots shall be brought to the venue of the recount. d. The different recount committees will be provided with an adequate workspace, with tables and chairs that would enable 284

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS them to perform the recount in an efficient and transparent manner. The recount committee, upon the request in writing of parties, will then randomly pick the precinct from which they would do the recount. Before opening the ballot box, the recount committee shall note its condition as well as that of the locks or locking mechanism and record the condition in the recount report. From its observation, the recount committee must also make a determination as to whether the integrity of the ballot box has been preserved. The ballot box shall then be opened and the ballots shall be taken out. The "valid" ballots shall first be counted, without regard to the votes obtain by the parties. This will be followed by the counting of the torn, unused and stray ballots, as classified at the poling place. The Votes appearing in election return copy for the ballot box shall then be recorded in the minutes. Prior to the actual conduct of the recount of the votes the recount committee must authenticate each and every ballot to make sure that they were the same ballots that were cast and fed to the PCOS machine during the elections. The authentication shall be through the use of the PCOS machine actually used during the elections in the subject precinct, or by another device certified by the Commission as one that can perform the desired authentication requirement through the use of bar code and ultra-violet ray code detection mechanism. Only when the recount committee, through the recount coordinator, determines that the integrity of the ballots has been preserved, will the recount proceed. Upon such determination, the recount committee shall then look at the ballot and count the votes as registered in each and every one of them for the contested position. In looking at the shades or marks used to register votes, the recount committee shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been ,made by the voter and shall be considered as such unless reasons exist that will justify their rejection. However, marks or shades which are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination. The rules on appreciation of ballots under Section 211 of the Omnibus Election Code shall apply suppletorily when appropriate. 285

e. f.

g.

h. i.

j. k. l.

m.

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS n. There shall be a tally sheet, of at least 5 copies, plus additional copies depending on the number of additional parties, that will be used for the tallying of the votes as they are counted, through the use of the tara or sticks. o. After all the ballots from one ballot box have been counted, the recount committee shall secure the contested ballots and complete the recount report for said precinct. Thereafter, it shall proceed to recount the votes on the ballots from the next precinct. p. In case of multiple recount committees, the recount shall be done simultaneously. q. In the event that the recount committee determine that the integrity of the ballots and the ballot box were not preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The commission shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the recount.

JURISPRUDENCE

PIMENTEL, JR. vs. COMELEC, et al. G.R. No. 133509, February 9, 2000 These circumstances, in themselves, constitute probable cause that justifies the belief that more likely than not, the election offense was committed and was committed by private respondents Salayon and Llorente. Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing absolute certainty of guilt. It is merely based on opinion and reasonable belief, and so it is enough that there exists such state of facts as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so16. Considering that private respondents Salayon and Llorente, in invoking the defense of honest mistake, oversight due to fatigue, and performance of ministerial duties, virtually admitted the existence of the discrepancies in the total number of votes garnered by petitioner and other senatorial candidates, which discrepancies by no stretch of the imagination could be dismissed as negligible or inconsequential, there is not merely a strong suspicion that they actually committed the election offense with which they are charged. The burden of 286

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS proof appears to have shifted to them to have shifted to them to prove that the said discrepancies cannot be considered illegal and criminal.

Sec. 249. Jurisdiction of the Commission. - The Commission shall be the sole judge of all contests relating to the elections, returns, and qualifications of all Members of the Batasang Pambansa, elective regional, provincial and city officials. DISCUSSIONS

The Supreme Court have the exclusive original jurisdiction, Article VII, section 4 of the 19987 Constitution, the Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President, Vice-President, and may promulgate its rules for this purpose. The Supreme Court has exclusive original jurisdiction to issue writs of certiorari against any decisions of an Electoral Tribunal. The Supreme Court has appellate jurisdiction over decisions of the COMELEC in election contests relating to the elections, returns and qualifications of all elective Regional, Provincial and City Officials. The petition shall be filed within thirty (30) days from notice of judgment or final order or resolution sought to be reviewed. The COMELEC has exclusive original jurisdiction over all election contests relating to the elections, returns, and qualifications of all elective: 1. regional officials; 2. provincial officials; and city officials. The COMELEC has 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. The Regional Trial Courts and Municipal Trial Courts have exclusive original jurisdiction over municipal and barangay officials, respectively. All election contests involving municipal offices filed with the RTC shall be decided expeditiously. The decision may be appealed to the Commission within five days from promulgation or receipt of a copy thereof by the aggrieved party. The Commission shall decide the appeal within sixty days after it is submitted for decision, but not late than six months after the filing of the appeal, which decision shall be final, unappealable and executory.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Subject to the Courts the ruling in Veloria vs. Comelec, a motion for the reconsideration of the RTC decision is a prohibited pleading and does not interrupt the running of the five day period of appeal. The provision of R.A. No 6679 granting appellate jurisdiction to RTC over the decision of Municipal Courts in electoral cases involving elective barangay officials is unconstitutional, per the ruling in Flores vs COMELEC. An election protest more than seeks the ouster of the winner from office as it is strictly a contest between the defeated and the winning candidate, based on grounds of election fraud or irregularity, its purpose is to ascertain who actually obtained the majority of the legal votes in the election and is therefore entitled to the office.

Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election.

JURISPRUDENCE REYES VS COMELEC G.R. NO. 207264, JUNE 25, 2013 Facts: Petitioner filed her Certificate of Candidacy (COC) for the position of Representative (as a member of the House of Representatives) of the lone district of Marinduque. Thereafter, she was even proclaimed as the winner in the election. However, even before the election day itself, the COMELEC already ordered the cancellation of the COC of the petitioner on the ground that she is not eligible to run for the aforesaid position for failure to comply with the requirements laid down in Section 6, Art. 6 of the 1987 Constitution. Petitioner contended among others that COMELEC does not have jurisdiction over the case; that the case is under the jurisdiction of the House of Representatives Electoral Tribunal (HRET), thus revoking the COMELECs cancellation of her COC. Issues: 1. Does HRET have jurisdiction over the case and not COMELEC? 2. Would her ineligibility nullify her winning of the election? 288

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Ruling: The petition is denied. 1. No, the case falls within the jurisdiction of the COMELEC. Reason: HRETs jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. (Emphasis supplied.) The jurisdiction of the HRET only begins once the winning candidate has been proclaimed, taken his oath, and assumed office. Although petitioner was proclaimed as the winner, still, she has not yet assumed office. Moreover, the term of office of a Member of the House of Representatives begins only at noon on the thirtieth day of June next following their election. Thus, until such time, the COMELEC retains jurisdiction. 2. Yes. It is explicitly clear that she is ineligible (disqualified) for the said position. Be it also noted that the COMELECs order for the cancellation of her COC took place even before the election day itself. To allow her to claim the position and to exercise its powers would be wielding havoc against Section 6, Art. 6 of the 1987 Constitution.

CERIACO BULILIS VS HON. VICTORINO NUEZ G.R NO 195953, AUGUST 9, 2011 In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. This includes interlocutory orders.

BARBERS vs. COMELEC G.R. No. 165691, June 22, 2005 The alleged invalidity of Biazons proclamation involves a dispute or contest relating to the election returns of members of the Senate. Indisputably, the resolution of such dispute falls within the sole jurisdiction of the SET. For this Court to take cognizance of the electoral protest against Biazon would usurp the constitutional functions of the SET. In addition, the COMELEC did not commit any grave abuse of discretion in issuing the assailed Resolutions affirming Biazons proclamation since the uncanvassed returns and the results of the special elections to be held would not materially affect the results of the elections. GARCIA vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL 312 SCRA 353 The fact that the House of Representatives Electoral Tribunal (HRET) is the sole judge of all contests relating to the elections, returns and qualifications of its 289

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS members does not bar the Supreme Court from entertaining petitions which charge the HRET with grave abuse of discretion. The cash deposit required in quo warranto cases is fixed, i.e., P5,000.00, and is required to be paid together with the filing fee at the time the petition is filed. The HRET may dismiss a quo warranto petition for failure to pay the required cash deposit - it is its judgment call which is clearly authorized under its Rules. The alleged ineligibility of a Congressman to hold office for not being a natural-born citizen is a serious charge, and in view of the delicate nature and importance of the charge, the observance of the HRET Rules of Procedure must be taken seriously if they are to attain their objective, i.e., the speedy and orderly determination of the true will of the electorate. RASUL vs. COMELEC 313 SCRA 18 The proper remedy of a losing candidate who assails the Commission on Elections resolution proclaiming the twelfth (12th) winning senatorial candidate is to file a regular election protest which under the Constitution and the Omnibus Election Code exclusively pertains to the Senate Electoral Tribunal The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. The word "sole" in Section 17, Article VI of the 1987 Constitution and Section 250 of the Omnibus Election Code underscore the exclusivity of the Tribunal's jurisdiction over election contests relating to its members. BULAONG vs. COMELEC 241 SCRA 180 Request for additional time was properly denied where petitioner had been given sufficient time of 55 days to complete the technical examination of election documents and to prove his allegations. Fact that there is a huge discrepancy between the result of the canvass and that of the revision is no proof that the Commission committed a grave abuse of discretion in denying his request for additional time to conduct a technical examination of election documents and to have his witnesses examine the ballots before requiring them to make their affidavits. As for the allegedly fake ballots, no better authority than the Commission on Elections can determine their authenticity, having itself ordered and supervised the printing of all the official ballots. Unless the Commission on Elections is shown to have committed a grave abuse of discretion, its decision and rulings will not be interfered with by the Supreme Court. The Commission on Elections is vested by the Constitution with exclusive original jurisdiction over election contests involving regional, provincial and city 290

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS officials, as well as appellate jurisdiction over election contests involving elective municipal and barangay officials.

ROMUALDEZ-MARCOS vs. COMELEC 248 SCRA 300 The House of Representatives Electoral Tribunals jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. View that the COMELECs jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. View that the Supreme Court should refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain. AQUINO vs. COMELEC 248 SCRA 400 The electoral tribunal assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either Senate or the House only when the latter become members of either the Senate or the House of Representatives and, a candidate who has not been proclaimed and has taken his oath of office cannot be said to be a member. While the proclamation of a winning candidate is ministerial, Batas Pambansa Blg. 881 in conjunction with Section 6 of Republic Act No. 6646 allows suspension of proclamation under circumstances mentioned therein even after the elections, the COMELEC is empowered to continue to hear and decide questions relating to qualifications of candidates.

Sec. 251. Election contests for municipal offices. - A sworn petition contesting the election of a municipal officer shall be filed with the proper regional trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after proclamation of the results of the election.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS JURISPRUDENCE

SAQUILAYAN vs. COMELEC G.R. No. 157249, November 28, 2003 FACTS: Petitioner Saquilayan and respondent Jaro were candidates for the Office of Municipal Mayor of Imus, Cavite in the May 14, 2001 local elections. After the votes were canvassed, Saquilayan was proclaimed the winner for having received 27,494 votes against Jaros 26,746 votes. On May 28, 2001, Jaro instituted an Election Protest Case (EPC No. 01-02) before the RTC of Imus, Cavite contesting the results in all 453 election precincts in the Municipality of Imus. Saquilayan filed his Answer with Motion to Dismiss contending, among other things, that the election protest failed to state a cause of action. The Motion to Dismiss was denied by the RTC in an Order dated July 31, 2001. Saquilayan questioned the denial before the Comelecs Second Division through a petition for certiorari and prohibition, which was docketed as SPR No. 192001. On January 22, 2002, the Second Division ruled in favor of Saquilayan and ordered the dismissal of the election protest. Jaro sought a reconsideration of the order of dismissal and the case was elevated to the Comelec en banc. On February 26, 2003, the Comelec en banc issued the questioned resolution granting Jaros Motion for Reconsideration. Saquilayans petition was thereunder dismissed and EPC No. 01-02 was ordered to proceed. Aggrieved, Saquilayan filed the present petition. RULING: The Supreme Court stated that election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. The Supreme Court frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. No doubt, allowing the election protest to proceed would be the best way of removing any doubt as to who was the real candidate chosen by the electorate. Barring the proceedings due to technicalities and procedures accomplishes nothing except possibly to suppress the will of the majority. The petition was dismissed. Sec. 252. Election contest for barangay offices. - A sworn petition contesting the election of a barangay officer shall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. The trial court 292

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS shall decide the election protest within fifteen days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide the case within thirty days from its submission, and whose decisions shall be final.

JURISPRUDENCE SAHALI vs. COMELEC and MATBA G.R. No. 134169, February 2, 2000 To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. In fine, certiorari will issue only to correct errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions of the lower court. As long as a court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by special civil action for certiorari.

MARQUEZ vs. COMELEC 313 SCRA 103 The election of Sangguniang Kabataan are governed by the Omnibus Election Code. Any contest relating to the election of members of the Sangguniang Kabataan (including the chairman) whether pertaining to their eligibility or the manner of their election is cognizable by MTCs, MCTCs, and MeTCs. It is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials. The doctrine of Mercado vs. Board of Election Supervisors, 243 SCRA 423, is no longer controlling. Section 49 of COMELEC Resolution 2824 covers both election protests and quo warranto cases.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS MERCADO vs. BOARD OF ELECTION SUPERVISORS of IBAAN, BATANGAS 243 SCRA 422 The conduct and administration of the elections for Sangguniang Kabataan members shall be governed by the rules promulgated by the COMELEC. COMELECs exclusive appellate jurisdiction over contests involving elective barangay officials refer to the elective barangay officials under the pertinent laws in force at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution. Contests involving elections of SK officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2, Article IX-C of the Constitution. Regional Trial Court is competent to review the decision of the Board of Election Supervisors (BES) in election controversies within its level.

Sec. 253. Petition for quo warranto. - Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional trial court or metropolitan or municipal trial court, respectively, within ten days after the proclamation of the results of the election.

JURISPRUDENCE

ESPIDOL vs. COMELEC G.R. No. 164922, October 11, 2005 It bears reiterating, at this point, that the Court has given its imprimatur on the principle that the COMELEC is with authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate 294

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS for the position contested would be to file a regular election protest or quo warranto. This rule, however, admits of exceptions and one of those is where the proclamation was null and void. In such a case, i.e., where the proclamation is null and void, the proclaimed candidates assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity.

DUMAYAS, Jr. vs. COMELEC 357 SCRA 358 Generally, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed.

BAR QUESTION A quo warranto proceeding, is a proceeding to unseat the respondent from office but not necessary install petitioner in his place. Under the Omnibus Election Code (B.P.881, as amended), briefly differentiate an election protest from a quo warranto case, as to whom can file the case and the respective grounds therefore. Answer An election protest may be filed by a losing candidate for the same office for which the winner filed his certificate of candidacy. A quo warranto case may be filed by any voter who is a registered voter in the constituency where the winning candidate sought to be disqualified ran for office. In an election contest, the issues are: a) who received the majority or plurality of the votes which were legally cast and b) whether there were irregularities in the conduct of the election which affected its results. In a quo warranto case, the issue is whether the candidate who was proclaimed elected should be disqualified because of ineligibility or disloyalty to the Philippines.

Sec. 254. Procedure in election contests. - The Commission shall prescribe the rules to govern the procedure and other matters relating to election contests pertaining to all national, regional, provincial, and city offices not later than thirty days before such elections. Such rules shall provide a simple and inexpensive procedure for the expeditious disposition of election contests and shall be published in at least two newspapers of general circulation. 295

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS However, with respect to election contests involving municipal and barangay offices the following rules of procedure shall govern: (a) Notice of the protest contesting the election of a candidate for a municipal or barangay office shall be served upon the candidate by means of a summons at the postal address stated in his certificate of candidacy except when the protestee, without waiting for the summons, has made the court understand that he has been notified of the protest or has filed his answer hereto; (b) The protestee shall answer the protest within five days after receipt of the summons, or, in case there has been no summons from the date of his appearance and in all cases before the commencement of the hearing of the protest or contest. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest; (c) Should the protestee desire to impugn the votes received by the protestant in other polling places, he shall file a counter-protest within the same period fixed for the answer serving a copy thereof upon the protestant by registered mail or by personal delivery or through the sheriff; (d) The protestant shall answer the counter-protest within five days after notice; (e) Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contest, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice; (f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered; (g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who had the right to vote in said election.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS

Election contest involves the adjudication not only of private and pecuniary interests of rival candidates, but also public interest considering the need to dispel uncertainty over the real choice of the electorate. Procedure for protests filed with the COMELEC 1. Protestant files a verified petition with the COMELEC within 10 days from proclamation and pays the required docket fees. Failure to pay the docket fee will result in the dismissal of the action. 2. The Clerk of Court of the COMELEC or the division concerned issues the corresponding summons to the protested within three days from the filing of the petition 3. Protested must file an answer within five days from service of summons and a copy of the petition. The protested may incorporate in his answer a counter-protest or counter-claim 4. The Comelec may not entertain a counter-protest filed beyond the elementary period to file the same. 5. Protestant has 5 days from the receipt of the answer or answer with counter-claim or counter-protest to file his reply or answer to counter-protest or counter-claim respectively 6. If no answer is filed to the protest or counter-protest, a general denial is deemed to have been entered 7. After the issues have been joined, the case shall be set for hearing and presentation and reception of evidence 8. After the case has been submitted for decision, the COMELEC shall render its decision. If the case is being heard by a Division, the case shall be decided within 10 days. If it is being heard by the COMELEC en banc, it shall be decided within 30 days 9. The decision of the Division becomes final and executor after the lapse of 15 days following its promulgation. The aggrieved party may file a timely motion for reconsideration within 5 days from promulgation of the decision on the grounds that the evidence is insufficient to justify the decision; or that the said decision is contrary to law 10. Decisions of the COMELEC en banc, become final and executory 30 days from promulgation For protests filed with the RTC 1. protestant files a verified petition with the RTC within 10 days from proclamation 2. protestee must file an answer within 5 days after receipt of notice of the filing of the petition and a copy of the petition 297

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. should the protestee desire to impugn the votes received by the protestant in other precincts, he may file a verified counter-protest within the same period fixed for the filing of the answer 4. protestant has 5 days from receipt of the counter-protest to file his answer to such counter-protest 5. any other candidate for the same office may intervene in the case within 5 days from filing of the protest by filing a verified petition-inintervention. The protestant or the protestee shall answer the protest-in-intervention within five days after notice 6. if no answer is filed to the protest, counter-protest or protest-inintervention within the specified time limits, a general denial is deemed to have been entered. After the issues have been joined, the case shall be set for hearing. The presentation and reception of evidence shall be completed within 30 days from the commencement thereof. The Court shall decide the election contest within 30 days from the date it is submitted for decision, but in every case within 6 months after its filing. Such decision shall declare who among the parties has been elected, or in a proper case, that none of them has been legally elected. The decision becomes final 5 days after its promulgation. Motion for reconsideration shall not be entertained. An aggrieved party may appeal the decision to the COMELEC by filing a notice of appeal within 5 days from promulgation of the decision.

JURISPRUDENCE SANGGUNIANG BAYAN of TAGUIG, METRO MANILA vs. ESTRELLA 349 SCRA 46 Where allegations in a protest or counter-protest so warrant, or whenever in the opinion of the court the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought before it and that the ballots be examined and the votes recounted. TOMARONG vs. LUBGUBAN G.R. Nos. 117955-58, March 13, 1997 FACTS: Several candidates including Tomarong were defeated in the 1994 Barangay Elections in Siquijor. They all filed an election protest before the respective MCTCs. The winning candidates filed their answers praying that the petitions be dismissed based on the affirmative defense that the protestants 298

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS failed to attach to their petitions the required certification on non-forum shopping as provided for in SC-AC No. 04-94. The MCTC initially ruled to dismiss but deferred to the Secretary of Justice who then deferred to the Court Administrator who ruled that the certification on non-forum shopping should be required in elections contests before the MTCs. Thus, this petition under Rule 65. ISSUE: Whether or not the requirement of the certification of non-forum shopping is required for election contests. HELD: Yes. The Court, citing Loyola v. Court of Appeals, said that: We do not agree that SC-AC No. 04-94 is not applicable to election cases. There is nothing in the Circular that indicates that it does not apply to election cases. On the contrary, it expressly provides that the requirements therein, which are in addition to those in pertinent provisions of the Rules of Court and existing circulars, shall be strictly complied with in the filing of complaints, petitions, applications or other initiatory pleadings in all courts and agencies other the Supreme Court and the Court of Appeals. Ubi lex non distinguit nec nos distinguire debemus. In this case, the petitioners filed the required certification 18 days after filing their petitions. It cannot be considered substantial compliance with the requirements of the Circular. Quite obviously, the reglementary period for filing the protest had, by then, already expired. Petition dismissed. LOYOLA vs. HRET and DRAGON GR. No. 109026, January 4, 1994 FACTS: The petitioner filed for an electoral protest before the House of Representatives Electoral Tribunal (HRET) against the proclaimed elected Congressman Renato Dragon. On September 28, 1992 Dragon filed a motion to be given an extension until October 12, 1992 to file his answer but it was denied by the HRET. Nonetheless, Dragon still filed his answer on October 15, 1992 but it was denied by the HRET and according to the Revised Rules of the House of Representatives Electoral Tribunal, a general denial would be entered if no answer is filed to the protest. Loyola moves that the general denial entered for Dragon is tantamount to his admission of the material allegations in the protest and a decision shall be based on his complaint and ultimately, that he be declared as the duly elected congressman of the 2nd district of Cavite. The HRET denied the said motion hence the petition. ISSUE: Whether or not an entry of general denial in election cases is equivalent to an admission of the material allegations in the protest. RULING: The Supreme Court did not render a judgment in favor of the petitioner. The petitioner cited the work of a noted author stating that if a material averment is not specifically denied, it is admitted to be true for the 299

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS purposes of the action and the plaintiff need not prove the truth of such allegations. However, such contention was not entertained because the issue at hand deals with general denials and not specific denials. The court also explained that an entry of general denial merely denies the protestee to present evidence to prove any affirmative defense, but he shall still be allowed to present evidence to disprove allegations against him.

BAR QUESTION In an election protest involving the position of Governor of the Province of Laguna between A, the protestee, and B, the protestant, the First Division of the Commission on Elections rendered a decision upholding Bs protest. Can A file a petition for certiorari with the Supreme Court under Rule 65 of the Rules of Court, from the decision of the COMELEC First Division? If yes, Why? If not, what procedural step must he undertake first?

Answer A cannot file a petition for certiorari with the Supreme Court . As held in Mastura vs. Commission on Elections, 285 SCRA 493 (1988), the Supreme Court cannot review the decisions or resolutions of a division of the Commission on Elections. A should first file a motion for reconsideration with the Commission on Elections en banc.

Sec. 255. Judicial counting of votes in election contest. - Where allegations in a protest or counter-protest so warrant, or whenever in the opinion of the court the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought before it and that the ballots be examined and the votes recounted. Sec. 256. Appeals. - Appeals from any decision rendered by the regional trial court under Section 251 and paragraph two, Section 253 hereof with respect to quo warranto petitions filed in election contests affecting municipal officers, the aggrieved party may appeal to the Intermediate Appellate Court within five days after receipt of a copy of the decision. No motion for reconsideration shall be entertained by the court. The appeal shall be decided within sixty days after the case has been submitted for decision. 300

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

JURISPRUDENCE

FERNANDEZ vs. COMELEC G.R. No. 176296, June 30, 2008 The 1987 Constitution vests in the COMELEC appellate jurisdiction over all contests involving elective barangay officials decided by trial courts of limited jurisdiction. Construed in relation to the provision in R.A. No. 7160 that includes in the enumeration of barangay officials the SK chairman, the constitutional provision indeed sanctions the appellate review by the COMELEC of election protests involving the position of SK chairman, as in the instant case. Hence, we find nothing improper in the COMELECs assumption of jurisdiction over respondents appeal.

Sec. 257. Decision in the Commission. - The Commission shall decide all election cases brought before it within ninety days from the date of their submission for decision. The decision of the Commission shall become final thirty days after receipt of judgment. Sec. 258. Preferential disposition of contests in courts. - The courts, in their respective cases, shall give preference to election contests over all other cases, except those of habeas corpus, and shall without delay, hear and, within thirty days from the date of their submission for decision, but in every case within six months after filing, decide the same.

JURISPRUDENCE

LORENZO vs. COMELEC G.R. No. 158371, December 11, 2003 FACTS: Petitioner Sonia R. Lorenzo and respondent Nestor B. Magno were rival candidates for Mayor of San Isidro, Nueva Ecija in the local elections of May 14, 2001. A certain Carlos Montes, resident of San Isidro, filed with the Commission on Elections a petition, docketed as SPA 01-153, for the disqualification of respondent Magno as a candidate on the ground of his conviction by the Sandiganbayan of four counts of Direct Bribery. On May 7, 2001, the COMELEC 301

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Second Division issued a Resolution disqualifying respondent Magno. This was affirmed on appeal by the COMELEC En Banc on May 12, 2001. The aforesaid Resolution was disseminated for implementation by the Municipal Board of Canvassers of San Isidro. Hence, on May 18, 2001, petitioner Lorenzo was proclaimed as the Mayor-elect of San Isidro. Meanwhile, respondent Magno brought a petition for certiorari before this Court, assailing his disqualification by the COMELEC, which petition was docketed as G.R. No. 147904. On October 4, 2002, this Court rendered a Decision reversing and setting aside the two challenged Resolutions of the COMELEC dated May 7 and 12, 2001, and declaring that Magno was under no disqualification to run for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections. On October 21, 2002, respondent Magno filed an Omnibus Motion with the COMELEC in SPA 01-153, seeking that (a) that his name be reinstated in the certified list of candidates for municipal mayor of San Isidro, Nueva Ecija in the May 14, 2001 local election; (b) the nullification of the proclamation of Lorenzo as mayor of San Isidro, Nueva Ecija; (c) that a special board of canvassers be formed to continue the canvas of votes cast in favor of respondent Magno; and (d) after completion of the canvas, that Magno be proclaimed the winner. The COMELEC En Banc thereafter issued a Resolution dated May 13, 2003, wherein it (a) ordered the creation of new Boards of Election Inspectors for all precincts in the municipality of San Isidro, for the purpose of counting the votes cast for Magno and preparing new election returns for submission to the Municipal Board of Canvassers of San Isidro; and (b) constituted a new Municipal Board of Canvassers for the purpose of canvassing said election returns and submitting the results to the COMELEC. Subsequently, on May 22, 2003, the COMELEC partially modified the above Resolution to order the immediate constitution of a new Municipal Board of Canvassers, it appearing that the old Municipal Board of Canvassers of San Isidro, Nueva Ecija had already canvassed all the election returns for all precincts except the votes for Magno. The COMELEC reiterated the directive in an Order dated June 10, 2003. RULING: The Supreme Court held that well settled is the doctrine that election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Also settled is the rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. As a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or a petition for quo warranto. This rule, however, admits of exceptions, to wit: (1) where the board of canvassers was improperly constituted; (2) where quo warranto was not the proper remedy; 3) where what was filed was not really a petition for quo warranto or an election protest but a petition to annul the 302

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS proclamation; (4) where the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and 5) where the proclamation was null and void Moreover, as correctly argued by the Solicitor General, respondent Magno cannot be faulted for his failure to file an election protest. The question of his qualification or disqualification for the position of Mayor had not yet been settled as of the expiration of the ten-day reglementary period. As such, Magno was not yet eligible to file an election protest and, therefore, the fact that no such protest was filed should not be an impediment to his proclamation as mayor if the results of the canvass of the new Municipal Board of Canvassers would show that he garnered the highest number of votes. First, the records of the case clearly show that petitioner was given full opportunity to participate in SPA 01-153, both via due notice of and attendance at hearings and the opportunity to submit memoranda and pleadings. Second, there was no substantial modification of the COMELEC's En Banc Resolution dated May 13, 2003. The Orders issued by respondent COMELEC Chairman dated May 22, 2003 and June 10, 2003 were merely to implement the COMELEC En Banc's Resolution, with the end goal of canvassing the votes cast in the most expeditious way possible. The petition was dismissed.

ALVAREZ v. COMELEC G.R. No. 142527, March 1, 2001 Election cases must be resolved justly, expeditiously and inexpensively. Preferential disposition applies to cases before the courts and not those before the COMELEC. Election cases pertaining to barangay elections may be appealed by way of a special civil action for certiorari, but recourse is available only when the COMELEC's factual determinations are marred by grave abuse of discretion.

BINCE, Jr. vs. COMELEC 242 SCRA 273 Settled is the rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. COMELEC did not commit grave abuse of discretion in setting aside the illegal proclamation.

303

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 259. Actual or compensatory damages. - Actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law. Sec. 260. Notice of decisions. - The clerk of court and the corresponding official in the Commission before whom an election contest or a quo warranto proceeding has been instituted or where the appeal of said case has been taken shall notify immediately the President of the Philippines of the final disposition thereof. In election contests involving provincial, city, municipal, or barangay offices, notice of such final disposition shall also be sent to the secretary of the local sanggunian concerned. If the decision be that none of the parties has been legally elected, said official shall certify such decision to the President of the Philippines and, in appropriate cases to the Commission.

JURISPRUDENCE In Lazatin vs. HRET (G.R. No. 84297, December 8, 1998), it was held that for purpose of election contests cognizable by the HRET, the rules of procedure of such tribunals shall prevail over the provisions of the Omnibus Election Code. And electoral tribunal, in determining the true will of the electorate, has the power, to suspend its own rules. Recourse may be had with the Supreme Court if the HRET acted with grave abuse of discretion. The Supreme Court sitting en banc, shall be the sole judge of all contest relating to the election, returns, and qualifications of the President, Vice-President, and may promulgate its rules for the purpose.

304

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XXII ELECTION OFFENSES

Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense: (a) Vote-buying and vote-selling. (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party. (2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations. (b) Conspiracy to bribe voters. - Two or more persons, whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it. (c) Wagering upon result of election. - Any person who bets or wagers upon the outcome of, or any contingency connected with an election. Any money or thing of value or deposit of money or thing of value situated anywhere in the Philippines put as such bet or wager shall be forfeited to the government. (d) Coercion of subordinates. (1) Any public officer, or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or land-owner who coerces or intimidates or compels, or in any manner influence, directly or indirectly, any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates. 305

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation or association, or any head, superior or administrator of any religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes or threatens to punish be reducing his salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates. (e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. - Any person who, directly or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom. (f) Coercion of election officials and employees. - Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties. (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. - During the period of forty-five days before a regular election and thirty 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 position, except upon prior authority of the Commission. The Commission shall not grant the authority sought 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 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 306

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations. (h) Transfer of officers and employees in the civil service. - Any public official who makes 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 prior approval of the Commission. (i) Intervention of public officers and employees. - Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member or the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. (j) Undue influence. - It is unlawful for any person to promise any office or employment, public or private, or to make or offer to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association, corporation or entity, which may induce anyone or the public in general either to vote or withhold his vote, or to vote for or against any candidate in any election or any aspirant for the nomination or selection of an official candidate in a convention of a political party. It is likewise unlawful for any person, association, corporation or community, to solicit or receive, directly or indirectly, any expenditure or promise or any office, or employment, public or private, for any of the foregoing considerations. (k) Unlawful electioneering. - It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof. (l) Prohibition against dismissal of employees, laborers, or tenants. - No employee or laborer shall be dismissed, nor a tenant be ejected from his landholdings for refusing or failing to vote for any candidate of his employer or landowner. Any employee, laborer or tenant so dismissed or ejected shall be reinstated and the salary or wage of the employee or laborer, or the share of the harvest of the tenant, shall be restored to the aggrieved party upon application to the proper court. 307

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (m) Appointment or use of special policemen, special agents, confidential agents or the like. - During the campaign period, on the day before and on election day, any appointing authority who appoints or any person who utilizes the services of special policemen, special agents, confidential agents or persons performing similar functions; persons previously appointed as special policemen, special agents, confidential agents or persons performing similar functions who continue acting as such, and those who fail to turn over their firearms, uniforms, insignias and other badges of authority to the proper officer who issued the same. At the start of the aforementioned period, the barangay chairman, municipal mayor, city mayor, provincial governor, or any appointing authority shall submit to the Commission a complete list of all special policemen, special agents, confidential agents or persons performing similar functions in the employ of their respective political subdivisions, with such particulars as the Commission may require. (n) Illegal release of prisoners before and after election. - The Director of the Bureau of Prisons, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody who illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof sixty days before and thirty days after the election. The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their care. Detention prisoners must be categorized as such. (o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. - Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity. (p) Deadly weapons. - Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling 308

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS place, voting, counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving order and enforcing the law. (q) Carrying firearms outside residence or place of business. - Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof. This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to persons who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables. During the election period , no person shall bear, carry or transport firearms or other deadly weapons in public places, including any public streets, buildings, park, private vehicles or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearms license shall be suspended. Only regular members or officers of the PNP, AFP and other law enforcement agencies of the Government who are duly deputized in writing by the Commission for election duty may be authorized in writing by the Commission for election duty may be authorized to carry and possess firearms during the election period: Provided, That, when in the possession of firearms, the deputized law enforcement officer must be: a) in full uniform showing clearly and legibly his name, rank and serial number which shall remain visible at all times; and b) in the actual performance of his election duty in the specific area designated by the Commission. (r) Use of armored land, water or air craft. - Any person who uses during the campaign period, on the day before and on election day, any armored land, water or air craft, provided with any temporary or permanent equipment or any other device or contraption for the mounting or installation of cannons, machine guns and other similar high caliber firearms, including military type tanks, half trucks, scout trucks, armored trucks, of any make or model, whether new, reconditioned, rebuilt or remodeled: Provided, That banking or financial institutions and all business firms may use not more than two armored vehicles strictly for, and limited to, the purpose of transporting cash, gold bullion or other 309

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS valuables in connection with their business from and to their place of business, upon previous authority of the Commission. (s) Wearing of uniforms and bearing arms. - During the campaign period, on the day before and on election day, any member of security or police organization of government agencies, commissions, councils, bureaus, offices, or government-owned or controlled corporations, or privatelyowned or operated security, investigative, protective or intelligence agencies, who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place of work: Provided, That this prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, buildings or offices: Provided, further, That in the last case prior written approval of the Commission shall be obtained. The Commission shall decide all applications for authority under this paragraph within fifteen days from the date of the filing of such application. During the same period, and ending thirty days thereafter any member of the Armed Forces of the Philippines, special, forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who wears his uniform or bears arms outside the camp, garrison or barracks to which he is assigned or detailed or outside their homes, in case of members of para-military units, unless (1) the President of the Philippines shall have given previous authority therefor, and the Commission notified thereof in writing, or (2) the Commission authorizes him to do so, which authority it shall give only when necessary to assist it in maintaining free, orderly and honest elections, and only after notice and hearing. All personnel of the Armed Forces authorized by the President or the Commission to bear arms or wear their uniforms outside their camps and all police and peace officers shall bear their true name, rank and serial number, if any, stitched in block letters on a white background on the left breast of their uniform, in letters and numbers of a clearly legible design at least two centimeters tall, which shall at all times remain visible and uncovered. During the election period, whenever the Commission finds it necessary for the promotion of free, orderly, honest and peaceful elections in a specific area, it shall confiscate or order the confiscation of firearms of any member or members of the Armed Forces of the Philippines, police forces, home defense forces, barangay self-defense units, and all other paramilitary units that now exist, or which may hereafter be organized, or any member or members of the security or police organization, government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporations and other subsidiaries, or 310

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS of any member or members of privately owned or operated security, investigative, protective or intelligence agencies performing identical or similar functions. (t) Policemen and provincial guards acting as bodyguards or security guards. - During the campaign period, on the day before and on election day, any member of the city or municipal police force, any provincial or sub-provincial guard, any member of the Armed Forces of the Philippines, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who acts as bodyguard or security guard of any public official, candidate or any other person, and any of the latter who utilizes the services of the former as bodyguard or security guard: Provided, That, after due notice and hearing, when the life and security of a candidate is in jeopardy, the Commission is empowered to assign at the candidate's choice, any member of the Philippine Constabulary or the police force of any municipality within the province to act as his bodyguard or security guard in a number to be determined by the Commission but not to exceed three per candidate: Provided, however, That when the circumstances require immediate action, the Commission may issue a temporary order allowing the assignment of any member of the Philippine Constabulary or the local police force to act as bodyguard or security guard of the candidate, subject to confirmation or revocation. (u) Organization or maintenance of reaction forces, strike forces, or other similar forces. - Any person who organizes or maintains a reaction force, strike force or similar force during the election period. The heads of all reaction forces, strike forces, or similar forces shall, not later than forty-five days before the election, submit to the Commission a complete list of all members thereof with such particulars as the Commission may require. (v) Prohibition against release, disbursement or expenditure of public funds. - Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for: (1) Any and all kinds of public works, except the following: (a) Maintenance of existing and/or completed public works project: Provided, That not more than the average number of laborers or employees already employed therein during the sixmonth period immediately prior to the beginning of the fortyfive day period before election day shall be permitted to work 311

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS during such time: Provided, further, That no additional laborers shall be employed for maintenance work within the said period of forty-five days; (b) Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called "takay" or "paquiao" system shall not be considered as work by contract; (c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and (d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility. No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph. This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them. (2) The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to said ministry, except for salaries of personnel, and for such other routine and normal expenses, and for such other expenses as the Commission may authorize after due notice and hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries and offices of other ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil 312

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and (3) The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing. (w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds. (x) Suspension of elective provincial, city, municipal or barangay officer. The provisions of law to the contrary notwithstanding during the election period, any public official who suspends, without prior approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the "Anti-Graft and Corrupt Practices Act" in relation to the suspension and removal of elective officials; in which case the provisions of this section shall be inapplicable. (y) On Registration of Voters: (1) Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote. (2) Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration. (3) Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter's affidavit; or any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records. 313

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (4) Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications. (5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration. (6) Any person who registers in substitution for another whether with or without the latter's knowledge or consent. (7) Any person who tampers with or changes without authority any data or entry in any voter's application for registration. (8) Any person who delays, hinders or obstruct another from registering. (9) Any person who falsely certifies or identifies another as a bona fide resident of a particular place or locality for the purpose of securing the latter's registration as a voter. (10) Any person who uses the voter's affidavit of another for the purpose of voting, whether or not he actually succeeds in voting. (11) Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter's application, except upon lawful order of the Commission, or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125 hereof. (12) Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place. (13) Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter's affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, 314

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter's affidavit of another and the latter are both members of the same family. (14) Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter's affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter's affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof. (15) Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters. (16) Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission. (17) Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place. (z) On voting: (1) Any person who fails to cast his vote without justifiable excuse. (2) Any person who votes more than once in the same election, or who, not being a registered voter, votes in an election. (3) Any person who votes in substitution for another whether with or without the latter's knowledge and/or consent. (4) Any person who, not being illiterate or physically disabled, allows his ballot to be prepared by another, or any person who prepares the ballot of another who is not illiterate or physically disabled, with or without the latter's knowledge and/or consent. (5) Any person who avails himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted. (6) Any voter who, in the course of voting, uses a ballot other than the one given by the board of election inspectors or has in his possession more than one official ballot. 315

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (7) Any person who places under arrest or detains a voter without lawful cause, or molests him in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote, or to compel him to reveal how he voted. (8) Any member of the board of election inspectors charged with the duty of reading the ballot during the counting of votes who deliberately omits to read the vote duly written on the ballot, or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the ballot. (9) Any member of the board of election inspectors charged with the duty of tallying the votes in the tally board or sheet, election returns or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman. (10) Any member of a board of election inspectors who has made possible the casting of more votes than there are registered voters. (11) Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election. (12) Any person who, without legal authority, destroys, substitutes or takes away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election. (13) Any person having legal custody of the ballot box containing the official ballots used in the election who opens or destroys said box or removes or destroys its contents without or against the order of the Commission or who, through his negligence, enables any person to commit any of the aforementioned acts, or takes away said ballot box from his custody. (14) Any member of the board of election inspectors who knowingly uses ballots other than the official ballots, except in those cases where the use of emergency ballots is authorized.

316

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (15) Any public official who neglects or fails to properly preserve or account for any ballot box, documents and forms received by him and kept under his custody. (16) Any person who reveals the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot. (17) Any person who, without authority, transfers the location of a polling place. (18) Any person who, without authority, prints or causes the printing of any ballot or election returns that appears as official ballots or election returns or who distributes or causes the same to be distributed for use in the election, whether or not they are actually used. (19) Any person who, without authority, keeps, uses or carries out or causes to be kept, used or carried out, any official ballot or election returns or printed proof thereof, type-form mould, electrotype printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or election returns. (20) Any official or employee of any printing establishment or of the Commission or any member of the committee in charge of the printing of official ballots or election returns who causes official ballots or election returns to be printed in quantities exceeding those authorized by the Commission or who distributes, delivers, or in any manner disposes of or causes to be distributed, delivered, or disposed of, any official ballot or election returns to any person or persons not authorized by law or by the Commission to receive or keep official ballots or election returns or who sends or causes them to be sent to any place not designated by law or by the Commission. (21) Any person who, through any act, means or device, violates the integrity of any official ballot or election returns before or after they are used in the election. (22) Any person who removes, tears, defaces or destroys any certified list of candidates posted inside the voting booths during the hours of voting. (23) Any person who holds or causes the holding of an election on any other day than that fixed by law or by the Commission, or stops any election being legally held. 317

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (24) Any person who deliberately blurs his fingerprint in the voting record. (aa) On Canvassing: (1) Any chairman of the board of canvassers who fails to give due notice of the date, time and place of the meeting of said board to the candidates, political parties and/or members of the board. (2) Any member of the board of canvassers who proceeds with the canvass of the votes and/or proclamation of any candidate which was suspended or annulled by the Commission. (3) Any member of the board of canvassers who proceeds with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time and place of the meeting of the board to the candidates, political parties, and/or other members of the board. (4) Any member of the board of canvassers who, without authority of the Commission, uses in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the election returns. (bb) Common to all boards of election inspectors and boards of canvassers: (1) Any member of any board of election inspectors or board of canvassers who deliberately absents himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions. (2) Any member of any board of election inspectors or board of canvassers who, without justifiable reason, refuses to sign and certify any election form required by this Code or prescribed by the Commission although he was present during the meeting of the said body. (3) Any person who, being ineligible for appointment as member of any board of election inspectors or board of canvassers, accepts an appointment to said body, assumes office, and actually serves as a member thereof, or any of public officer or any person acting in his behalf who appoints such ineligible person knowing him to be ineligible. (4) Any person who, in the presence or within the hearing of any board of election inspectors or board of canvassers during any of 318

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS its meetings, conducts himself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing said body from performing its functions, either partly or totally. (5) Any public official or person acting in his behalf who relieves any member of any board of election inspectors or board of canvassers or who changes or causes the change of the assignments of any member of said board of election inspectors or board of canvassers without authority of the Commission. (cc) On candidacy and campaign: (1) Any political party which holds political conventions or meetings to nominate its official candidates earlier that the period fixed in this Code. (2) Any person who abstracts, destroys or cancels any certificate of candidacy duly filed and which has not been cancelled upon order of the Commission. (3) Any person who misleads the board of election inspectors by submitting any false or spurious certificate of candidacy or document to the prejudice of a candidate. (4) Any person who, being authorized to receive certificates of candidacy, receives any certificate of candidacy outside the period for filing the same and makes it appear that said certificate of candidacy was filed on time; or any person who, by means of fraud, threat, intimidation, terrorism or coercion, causes or compels the commission of said act. (5) Any person who, by any device or means, jams, obstructs or interferes with a radio or television broadcast of any lawful political program. (6) Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof. (dd) Other prohibitions: (1) Any person who sells, furnishes, offers, buys, serves or takes intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day: Provided, That hotels and other establishments duly 319

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS certified by the Ministry of Tourism as tourist oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the Commission: Provided, further, That foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted from the provisions of this subparagraph. (2) Any person who opens in any polling place or within a radius of thirty meters thereof on election day and during the counting of votes, booths or stalls of any kind for the sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes. (3) Any person who holds on election day, fairs, cockfights, boxing, horse races, jai-alai or any other similar sports. (4) Refusal to carry election mail matter. - Any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including governmentowned or controlled postal service or its employees or deputized agents who refuse to carry official election mail matters free of charge during the election period. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of certificate of public convenience or franchise. (5) Prohibition against discrimination in the sale of air time. - Any person who operates a radio or television station who without justifiable cause discriminates against any political party, coalition or aggroupment of parties or any candidate in the sale of air time. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of the franchise. Sec. 262. Other election offenses. - Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS DISCUSSIONS Other election offenses In addition to the prohibited acts and election offenses enumerated in Sections 262 and 262 of BP 881, as amended, the following shall be guilty of election offenses: a) any person who causes the printing of official ballots and election returns by any printing establishment which is not under contract with the COMELEC and any printing establishment which undertakes such unauthorized printing b) any member of the board of election inspectors or board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes c) any member of the board of election inspectors who refuses too issue to duly accredited watchers the certificate of votes provided in Section 16 hereof d) any person who violates section 11 hereof regarding prohibited forms of election propaganda e) any chairman of the board of canvassers who fails to give notice of meetings to other members of the board, candidate, or political party as required under Section 23 hereof f) any person declared a nuisance candidate as defined in sec 69 of BP 881, or is otherwise disqualified, by final and executory judgment, who continues to misrepresent himself, or holds him self out, as a candidate, such as by continuing to campaign thereafter, and/or other public officer or private individual, who knowingly induces or abets such misrepresentation, by commission or omission, shall be guilty of an offense and subject to the penalty provided in sec 264 hereof.

A statutory offense, such as violation of election law, is mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance or lack of malice is beside the point. Commission of the act is sufficient. It is the act itself that is punished and not mere intention.

321

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS One should not confuse an action of quo warranto with the complaint for a violation of the Election Code even if the same in a way have the effect of disqualifying a candidate to hold the office to which he is elected. One partakes of the nature of a civil case wherein the petitioner is the defeated candidate while the other is a criminal action which is prosecuted in the name of the people. Both proceedings have different objectives and are premeditated on the same grounds. The purpose of a quo warranto is merely to prevent an elective official from assuming office on the ground of ineligibility. To be eligible, one must have the qualifications required by law with regard to citizenship, residence, age, loyalty, etc. On the other hand, the principal purpose of the criminal action is imprisonment of the offender, be he a candidate or not, and the grounds of the action vary depending upon the actions, committed. Here the actions involved are those prohibited by section 49 of the Election Code relative to corrupt practices. The fact that the present offense carries with it the necessary penalty of disqualification from holding office does not convert it into an action of quo warranto. There is a difference as regards the prescriptibility of the action, while an action of quo warranto should be filed within one week from proclamation, an election offense prescribes after two years from the date of its commission, and if the discovery is made on the occasion of an election contest, the period shall commence on the date of the judgment becomes final. Candidate elect may also be ineligible or disqualified to hold position in the government office who are charged and convicted of: a. Espionage and other offenses against the National Security; b. Membership in the outlawed Communist Party of the Philippines and similar associations; c. Those who are penalized of capital offenses under the Revised Penal Code; d. Those who are charged and convicted by Anti-Graft and Corrupt Practices Act; and e. Those who are charged and convicted of illegal recruitment which the law considered as economic sabotage. JURISPRUDENCE MAPPALA vs. NUNEZ 240 SCRA 600 To support a conviction under Section 261 (p) of the Omnibus Election Code, it is not necessary that the deadly weapon should have been seized from the accused while he was in the precinct or within a radius of 100 meters therefrom, as it is enough that he carried the deadly weapon in the polling place or within 100 meters thereof during any of the specified days and hours.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS EDDING vs. COMELEC 246 SCRA 502 The COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction. Where the motion for execution pending appeal was filed within the reglementary period for perfecting an appeal, the filing of a notice of appeal by the opposing party was of no moment and did not divest the trial court of its jurisdiction to resolve the motion for immediate execution of the judgment pending appeal. For the May 11, 1992 synchronized national and local elections, the COMELEC fixed a longer election period of one hundred twenty (120) days before the scheduled elections and thirty (30) days thereafter. No officer or employee in the civil service shall engage directly or indirectly, in any electioneering or partisan political campaign. Section 261 (h) of Batas Pambansa Blg. 881 does not per se outlaw the transfer of a government officer or employee during the election period. Elements of a violation of Section 261 (h) of Batas Pambansa Blg. 881, are: (1) The fact of transfer or detail of a public officer or employee within the election period as fixed by the COMELEC, and (2) the transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations. An officer cannot be held liable for violation of Section 261 (h) of Batas Pambansa Blg. 881, a penal provision, before the effectivity of COMELEC Resolution No. 2333 promulgating the necessary implementing rules.

Sec. 263. Persons criminally liable. - The principals, accomplices, and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses. If the one responsible be a political party or an entity, its president or head, the officials and employees of the same, performing duties connected with the offense committed and its members who may be principals, accomplices, or accessories shall be liable, in addition to the liability of such party or entity. Sec. 264. Penalties. - Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a 323

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty. In case of prisoner or prisoners illegally released from any penitentiary or jail during the prohibited period as provided in Section 261, paragraph (n) of this Code, the director of prisons, provincial warden, keeper of the jail or prison, or persons who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to suffer the penalty of prision mayor in its maximum period if the prisoner or prisoners so illegally released commit any act of intimidation, terrorism of interference in the election. Any person found guilty of the offense of failure to register or failure to vote shall, upon conviction, be fined one hundred pesos. In addition, he shall suffer disqualification to run for public office in the next succeeding election following his conviction or be appointed to a public office for a period of one year following his conviction.

JURISPRUDENCE BLANCO vs. COMELEC G.R. No. 180164, June 17, 2008 The records did not show that a criminal complaint was filed against petitioner for the election offense of vote-buying under Sec. 261 (a) of the Omnibus Election Code. There was also no evidence that the accessory penalty of disqualification to hold public office under Sec. 264 of the same Code was imposed on petitioner by the proper court as a consequence of conviction for an election offense. Since there is no proof that petitioner was convicted of an election offense under the Omnibus Election Code and sentenced to suffer disqualification to hold public office, the COMELEC, Second Division, committed grave abuse of discretion in pronouncing that absent any showing that petitioner had been bestowed a presidential pardon, amnesty or any other form of executive clemency, petitioner's disqualification from being a candidate for an elective position remains.

Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other 324

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS prosecuting arms of the government: Provided, however, that in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

DISCUSSIONS

Sec. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows: Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. Thus, under the clear text of RA 9369, the power to investigate election offenses is now concurrent with other prosecuting arms of the government. Notably, the word exclusive was removed from section 265 of the Omnibus Election Code.

Sec. 266. Arrest in connection with the election campaign. - No person shall be arrested and/or detained at any time for any alleged offense committed during and in connection with any election through any act or language tending to support or oppose any candidate, political party or coalition of political parties under or pursuant to any order of whatever name or nature and by whomsoever issued except only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution shall have been strictly complied with. If the offense charged is punishable under a presidential decree whether originally or by amendment of a previous law, the death penalty shall not be imposed upon the offender except where murder, rape or arson is involved. In all cases, the penalty shall not be higher than reclusion perpetua and the offender shall be entitled to reasonable bail upon sufficient sureties to be granted speedily by the competent court. Moreover, loss of the right of citizenship and confiscation of property shall not be imposed. Any officer or a person who shall violate any provision of this section shall be punished by imprisonment of not less than six (6) years and one (1) day 325

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS nor more than twelve (12) years, with the accessory penalties for election offenses. The provision of Section 267 of this Code shall not apply to prosecution under this section. Sec. 267. Prescription. - Election offenses shall prescribe after five years from the date of their commission. If the discovery of the offense be made in an election contest proceedings, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. Any information for election offense filed after the lapse of the prescriptive period of five years counted from the date when an offense committed publicly and barefacedly already prescribed. Sec. 268. Jurisdiction of courts. - The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. Sec. 269. Preferential disposition of election offenses. - The investigation and prosecution of cases involving violations of the election laws shall be given preference and priority by the Commission on Elections and prosecuting officials. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within five days from its submission for resolution. The courts shall likewise give preference to election offenses over all other cases, except petitions for writ of habeas corpus. Their trial shall likewise be commenced without delay, and shall be conducted continuously until terminated, and the case shall be decided within thirty days from its submission for decision.

DISCUSSIONS

What are election offenses; how committed; persons liable; territoriality. Election offenses are acts and omissions punishable under the Omnibus Election Code, Revised Penal Code, other special election laws, rules & regulations as well as resolutions issued by the Comelec during regular elections or on the occasion thereof during special elections. Violation makes the perpetrator either as a principal, accomplice, or accessory; nominal nature of the offense whereby stages of commission 326

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS are not applicable (attempted, frustrated, or consummated ); exemptions for accessories in lieu of relationship with the offender will also not apply in lieu of the mala prohibita nature of the offense wherein intent is not a necessary element. Election offenses may be committed by any person, group or association not only thru direct participation, inducement or indispensable cooperation as principals but also by way of conspiracy (BP 881, Sec 261, (2)(b)). Accomplices and accessories are held liable and the president or head of the group, association or corporation will be principally & solidarily liable for acts committed by their subordinates or employees directly under their supervision (BP 881, Sec 263 ). The exemptions given under the Revised Penal Code for accessories in lieu of relationship will not absolve criminal liability in lieu of the nature of the offense being one of a mala prohibita wherein intent is not a necessary element for its commission. Exemptions from territoriality Thus, even public or private individuals, as well as aliens, living abroad but who interferes, obstructs, participates directly or indirectly with the outcome of the electoral process may be held liable for election offenses (R.A. 9189 Overseas Absentee Voting Act, Sec 24.9). It will be noted that because of this external application of the Act, by inference, diplomatic immunities or international agreements running between nations such as the Visiting Forces Agreement will not absolve the offender for liability; however subject to existing extradition treaties observed by the nations for the enforcement or prosecution of the offense. Or, in other instances wherein the voter, being a citizen and taking advantage of the absentee voting act but thereafter fails to return within the given period of 3 years and continues to vote for the next succeeding elections may also be held liable for election offenses under this Act. The rule applies even to dual citizens or citizenship ( R.A. 9189 Overseas Absentee Voting Act, Section 24.9, paragraph 4). When does the period for election offenses begin; power to prosecute; jurisdiction of the courts. Period within which an offense may be considered as an election offense: Generally, most offenses would only be considered as an election offense whenever they fall within the electoral period or the period within which there is a forthcoming election. So the question is: When does the actual election period begin in order for the offense to be considered as an election offense? Is it the time when the filing for certificates of candidacies has ended? Or the time when the campaign period has commenced (albeit absence of official list of candidates) when candidates have now become official? Furthermore, R.A. 7056, Sec 8 , as well as the Constitution, provides that .the election period for regular & special elections shall commence 90 days before the day of the 327

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS election and shall end 30 days thereafterwhereas campaign periods for regular & special elections are as follows: 120 days for Presidential & VicePresidential elections; 90 days for Senatorial elections; and 45 days for Congressional elections which shall not include the day before and the election day itself, Maundy Thursday, and Good Friday during which time campaigns are strictly prohibited. Thus, most people would think that by virtue of Constitutional mandate, those two periods mentioned (election & campaign periods) are undoubtedly the correct parameters to use and the determinant of election period and when election offenses begin, aside from the fact that most offenses under the Omnibus Election Code fall concomitant with or attributable to when a candidates status has turned official and may now be rightfully answerable for such acts committed by him or herself, his or her fellow supporters, as well as the political parties involved or opposing such candidate. However, when the Code and other special laws are closely scrutinized, certain offenses under the Omnibus Election code, as well as other special election laws and resolutions of the Comelec will show that some do not actually fall anywhere within the two periods specified above (campaign or election period of 90 days and 30 days thereafter R.A. 7056) Stated otherwise, not all offenses are only possible or could be committed during the time of official candidacy or when the campaign period has begun but when there is a forthcoming electoral process and was committed in anticipation of it whether or not it falls within the of 120, 90 or 45 days. For instance, under Comelec Resolution No. 8714, Sec. 4, (z) iv nos. 18-20, in the early stages of the electoral process which may even be much earlier than 120 or 90 days, a printer or contractor of ballots & other Comelec paraphernalia, may be held liable for overprinting, unauthorized usage, retention, or reckless discharge of spoilage which would make such acts fall and be properly tagged as election offenses. Or, how about those acts which fall way beyond 30 days after proclamation such as when an elected official while in his or her oath-taking fails to assume office or anticipates assumption of office beforehand and had discharged or exercised certain acts in de facto. Such acts fall likewise as election offenses under the Omnibus Election Code and as well as the Revised Penal Code. In other words, what we see here by inference and analysis, a correct interpretation of an election offense is an offense of which its commission was made in anticipation of a forthcoming elections or one that is already taking place regardless of whatever stage of the electoral process it is committed. This would be the proper interpretation, albeit correct definition, of the election period for purposes of election offenses and not the 120, 90 or 45 day rule. Since elections by far, regardless of their type being one or a regular or special, are comprised of various stages of an entire process and the election period contemplated by law (the Constitution & RA 7056) only refers to a minute portion of the entire electoral process, which may either start from the earliest stages of : 328

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 1. 2. 3. 4. 5. 6. 7. preparation of the ballots the voters registration filing of the certificates of candidacy the campaign period the election proper aftermath or post-election proclamation; and finally, the oath-taking or assumption of office of the elected official.

All of these stages combined make up the entire electoral period which is essentially different from an election period which only dictates for the period when election proper has commenced and when all other preparations for the entire electoral process have been set in place. Thus, stated below are the various stages of the entire electoral process within which carries certain offenses which may be committed on what stage, regardless of whether it was committed outside of the 90-days-and-30-days period (election period) or within the 120-90-45-days period (campaign period). a. Electoral proper & campaign election offenses : 1. Registration of Voters electioneering by non-voter, misrepresentations& other forms of voter fraud, liquor & gun ban 2. Filing of Certificate of Candidacy offenses committed by or against a candidate 3. Campaign period specific violations committed by or against a candidate, their supporters, political parties, the print & broadcast media 4. Election Day stalls & small business owners violating the 30-meter perimeter rule 5. Proclamation or Day of Oath Taking refusal to assume office or anticipation of office b. Pre-electoral & post-electoral election offenses : 1. Comelec pre-electoral preparations & printing violations of Comelec Res. 8714, overprinting, unauthorized usage, improper disposal of Spoilage by the printer or contractor; 2. During incumbency of the elected violations of the 3-year period to return to the native country by the absentee voter *Note: Electoral sabotage, which is fairly a new offense, may occur at any stage of the electoral process mentioned above since by the very nature of this offense, it requires careful planning, technical expertise and widespread systematic control of the automated system in order for it to be effective or overturn official data results. Hence, it is not a single-stage assault but a comprehensive attack on the entire electoral process which may thus happen at any stage of the electoral process. In lieu of this, a close review on the deliberations made by the lawmakers reveal that the extreme penalty of 329

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS afflictive - reclusion perpetua or life imprisonment was meted (short of the obsoleted death penalty). The objective? To deter would-be perpertrators who would most likely be crux & handywork of international cyber-terrorists. In stark contrast to most election offenses wherein the usual penalty ranges from not less than 1 year and no more than 6 years imprisonment. Power to prosecute & conduct preliminary investigation In every election offense, any private individual aggrieved or the Comelec itself motu propio may file the necessary action in court, either in the Regional Trial Court or the Municipal Trial Court as the case may be. Arrests in connection with utterances made during a campaign shall be made only thru a warrant issued by a competent judge after all constitutional requirements have been met. (BP881, Sec 266) In all cases, the penalty shall not be higher than reclusion perpetua and the offender shall have the right to bail (1987 Constitution). Under the code, the Comelec has the power to conduct preliminary investigations related to all election offenses. However, if within 4 months no action has been filed, the city fiscal or state prosecutor (DOJ) may assume concurrent jurisdiction to prosecute & file the same making the private individual aggrieved the states witness. (BP 881 , Sec 265) Court jurisdiction The Municipal Trial Court has original exclusive jurisdiction over cases involving failure to vote;. All other election-related offenses, the Regional Trial Court has original exclusive jurisdiction to hear them. However, for acts or omissions by the Municipal Trial Court or Regional Trial Court on election-related cases, the Comelec, in aid of its appellate jurisdiction, has the power to hear the same (Revised Rules of Civil Procedure, Rule 64) except the right to vote which shall be under the jurisdiction of the regular courts (RTC) filed thru an action for declaratory relief. Applicability of offenses to certain individuals; penalties; indeterminate sentence law; prescription Generally, election offenses apply to almost all individuals, public or private, voter or non-voter. However, certain offenses, by their very nature, may only apply to certain individuals or groups. Thus, below are certain election offenses which had been grouped or classified accordingly based on who would most likely commit them or would be liable. 1. By a Non-voter conspiracy to bribe voters [B.P. 881, Section 261, 2 (b) wagering [B.P. 881, Section 261, 2 (c)] harassment of employees, laborers and tenants [B.P. 881, Section 261, 2 (l)] 330

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS propagating false rumors [B.P. 881, Sec 261, 3 (z) , item (11)]

2. By a vendor, small business owner, fair & bet runners liquor ban [B.P. 881, Section 261, 3(z), sub-heading iv (dd) items (1 & 2)] illegal operation of fairs, cockfights, horse races, jai-alai [B.P. 881, Section 261, 3(z), sub-heading iv (dd) item (3)]

3. By the Voter failure to register or vote [B.P. 881, Section 261, 3(y) , item (1) & 3 (z) , item (1)] misrepresentation [B.P. 881, Section 261, 3(y) , item (2)] double registration or voting (flying voter) [B.P. 881, Section, Sec 261, 3(y), item5) & 3 (z), item (2)] usurpation (B.P. 881, Section, 3(y), items (6 & 10) illegal use of spoilage [B.P. 881, Section 261, 3(y), item (16) & 3 (z), item (6)] other forms of falsification [B.P. 881, Section, 3(z), item (24)]

4. By the printer or holder of the Comelec contract for printing materials falsification [B.P. 881, Section, 3(z), sub-heading iv, items (18 & 19)] reckless discharge of spoilage, unauthorized printing, overprinting

5. By a political party, citizens arm or group illegal conventions or caucuses [B.P. 881, Section, 3(z), subheading iv (cc) item (1)] refusal to provide tabulated data or information [R.A. No, 9369, Section 35 (d & f)] vote-buying or vote-solicitation [B.P. 881, Section 261 (cc), item (6)]

6. By a postal courier refusal to carry election mail matter [B.P. 881, Section, 3(z), subheading iv (dd), item (4)]

7. By a TV, print, and radio broadcaster or operator discrimination in the sale of airtime [B.P. 881, Section 261, 3(z), sub-heading iv (dd), item (5)] 331

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS failure to identify or release the advertisement sponsor

8. By the election officer or employee *Note: For reasons of redundancy, the rest of the offenses were no longer enumerated here since majority of the provisions under the code & special laws pertain to violations committed by election officers, canvassers, inspectors, public employees , while in the performance of their duties whether in an official or temporary capacity during the electoral process. Note however, in all the violations attributable to public officials & election officers, is the fact that any or connivance with a private individual will not make them an accomplice to the private offense when such offense has a counterpart provision and penalty specific for a public officer or election officer. The public offender will be charged as a principal under the specific violation equivalent for election officers or employees. An example would be falsification committed by a voter during the registration wherein the registration official was aware. The voter will be charged for the specific offense under the registration process as a principal ; while the registration officer will likewise be charged as a principal also under a specific provision related to officials under the registration process who connives with a falsification made by a voter. This is the other distinct aspect associated with election offenses which makes them generally non-collaborative. Meaning, the commission of the offense is usually treated as a stand-alone or one which does not accommodate collaborating parties into their commission but makes the accomplice or accessory a doer and principal of their own separate acts of colluding or conniving and punishable under a specific offense relative to their act by virtue of their status or office. Another example would be the offense of conspiracy to bribe voters which makes the conspirators not as accomplices or accessories to the candidate who is vote-buying or selling and therefore liable as principal, but instead makes the conspirators liable as principals for their own specific act of conspiracy mentioned in the Code. This non-collaborative aspect becomes apparent in lieu of counterpart provisions running alongside with other provisions one provision speaks of a private offender (voter); while, another speaks of a public offender (eg. (registration officer, inspector, canvasser, etc) who colludes or connives or is aware of the acts done or being done by the private individual. Thus, each one becomes liable as principals for their own specific offenses. (Non-collaborative Doctrine in Criminal Law) 9. By any public officer or employee

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS illegal appointments, promotions or transfers [B.P. 881, Section 261, subdivision (d), item 2 (f & l)] unlawful disbursement or release of public funds, other expenditures [B.P. 881, Section 261, subdivision (d), item (o)] illegal intervention [B.P. 881, Section 261, subdivision (d), item (i)] illegal release of prisoners [B.P. 881, Section 261, subdivision (d), item (n)] unlawful contracting for public works and similar projects [B.P. 881, Section 261, subdivision (d), item (v) 1 (a thru d)]

10. By the military or para-military deadly weapons [B.P. 881, Section 261, 2 (p) & (q)] wearing of uniforms and bearing arms (Comelec Resolution No. 8714, Section 4) unlawful use of armored land, water or aircraft [B.P. 881, Section 261, subdivision (d), item (r)]

11. By the candidate, his or her supporters, or party represented vote-buying or vote-selling [B.P. 881, Section 261 (a)] coercion of subordinates [B.P. 881, Section 261, 2 (d)] prohibitions against electoral propaganda (B.P. 881, Section 82) misrepresentation (B.P. 881, Section 78) nuisance candidate (Comelec Resolution 8678) accessory punishments; application of

Penalties, fines & other indeterminate sentence law

Except for electoral sabotage which carries with it the penalty of reclusion perpetua or life imprisonment, every person found guilty of an election offense under the code shall be punished with imprisonment of not less than 1 year but not more than 6 years and shall not be qualified for probation however qualify for indeterminate sentence. In addition, the guilty party shall suffer a perpetual disqualification to hold public office and the right of suffrage. If offender is a foreigner, he shall suffer imprisonment with deportation taking effect thereafter sentence had been served. Any political party found guilty shall pay a fine not less than P10, 000.00 pesos after judgment is made on the officers or members found guilty of the offense. The penalty for a voter found guilty of failing to register or vote shall be a fine of P100.00 pesos with temporary disqualification to run for public office in the next succeeding election following his conviction and to be appointed for public office for a period of 1 year following his conviction. In all cases however, neither deprivation of citizenship nor confiscation of property shall be imposed. (BP 881, Sec. 266) Prescription of offenses 333

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Election offenses shall prescribe after five years from date of its commission. However, in case of discovery of the offense during an election contest proceedings, the period of prescription shall begin only on the date when judgment in such proceedings has become final and executory.

BAR QUESTION A. Despite lingering questions about his Filipino citizenship and his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His opponent, Vito, hires you as lawyer to contest Gabriel's candidacy. 1. Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons.

ANSWER: An action for Petition for Disqualification for Candidacy may be filed against Gabriel and with the Law Department of the House of Representatives Electoral Tribunal since the opponent is one of a Congressional candidate which comes under the proper jurisdiction of the HRET and not under the Comelec in whose jurisdiction covers Municipal officials and lower.

2. If, during the pendency of such action/s but before election day, Gabriel withdraws his certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If not, why not? ANSWER: Yes, he may still be substituted since the deadline for substitution under the code is noontime of the day of the elections, provided Gabriel belongs to a party and not just a lone candidate. Also, the substitute must come from the same political party where Gabriel belongs and is officially nominated and certified by their party chairman.

334

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3. If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being proclaimed the winner in the election, can the issue of his candidacy and/or citizenship and residence still be questioned? If so, what action or actions may be filed and where? If not, why not? ANSWER: Yes, the proclamation may still be questioned and raised by way of Certiorari with the Supreme Court under Rule 64. A Motion for Reconsideration with the Commission en banc will no longer be prosper since judgment had become final and executory under Comelec Rules of Procedure. B. Warlito, a natural-born Filipino, took up permanent residence in the United States, and eventually acquired American citizenship. He then married Shirley, an American, and sired three children. In August 2009, Warlito decided to visit the Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20; and Luisa, 17. While in the Philippines, a friend informed him that he could reacquire Philippine citizenship without necessarily losing U.S. nationality. Thus, he took the oath of allegiance required under R.A. 9225. 1. Having reacquired Philippine citizenship, is Warlito a natural-born or a naturalized Filipino citizen today? Explain your answer.

ANSWER: Warlito is a naturalized citizen after reneging & exchanging his Filipino citizenship with that of a US before. As the law provides, a naturalborn citizen is one who no longer needs to perform any act of allegiance in order to acquire it. Warlito had to undergo naturalization proceedings in order to re-acquire the same. *Note: The difference with that of a natural-born Filipino born in the US who similarly acquires US citizenship by reason of birthright (jus soli followed in the US) against that of Warlito , is that the former, usually referred to as dualcitizens, are natural-born Filipinos by reason of parentage (jus sanguinis). Their US birth being a matter of consequence and not an act which had to be performed to acquire the same. Thus, the birthright is a second citizenship and not a subsequent citizenship wherein one had to loose in order to exchange for another. As in the case of Warlito, who initially started with a Filipino citizenship, then reneged and subsequently moved on to an American. When this happens, there is definitely what we refer to in law as the need (not) perform an act in order to gain or acquire it. Thus, in the same token, Warlito had to 335

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS perform a subsequent act of naturalization in order to acquire the same Filipino citizenship again. 2. With Warlito having regained Philippine citizenship, will Shirley also become a Filipino citizen? If so, why? If not, what would be the speediest procedure for Shirley to acquire Philippine citizenship? Explain.

ANSWER: Since Warlitos citizenship was gained thru naturalization proceedings, the effects will have nothing on Shirley, who remains to be an American in all respects and will need to undergo the same naturalization proceedings that Warlito underwent intially. However, she may state in her application her husbands naturalization to expedite and bring down the 10-year residency requirement to less than 5 years, aside from other requisites she must further comply with. 3. Do the children --- Johnny, Warlito Jr., and Luisa --- become Filipino citizens with their father's reacquisition of Philippine citizenship? Explain your answer. ANSWER: The effects of naturalization for Johnny, who is 23 years old, would have no bearing or significance since he is already beyond the age of majority. But for minors Warlito Jr, 20, and Luisa, 17, the citizenship extends to both of them.

JURISPRUDENCE

MENDOZA vs. COMELEC and PAGDANGANAN G.R. No. 191084, Marcy 25, 2010 En banc versus division ruling; Sec 6 , Comelec Rules of Procedure vis--vis Sec 3, Art IX of the Constitution Comelec Rules of Procedure, Sec 6 Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided or fails to reach a majority decision, the case is deemed to be re-heard and if in re-hearing 336

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS no decision was still reached, the action or proceeding will be dismissed if the action was originally commenced with the Commission. In appealed cases, the judgement or order appealed from stands as it had been originally or previously received. Constitution , Art IX , Sec. 3 . The Commission on Elections may sit En Banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission En Banc.

337

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XXIII LEGAL FEES

Sec. 270. Collection of legal fees. - The Commission is hereby authorized to collect fees as follows: (a) For furnishing certified transcript of records or copies of any record, decision or ruling or entry of which any person is entitled to demand and receive a copy, for every page P 2.00 (b) For every certificate or writ or process 10.00 (c) For each certificate not on process 2.00 (d) In appropriate cases, for filing a second and succeeding motions for reconsideration 50.00 (e) For every search of any record of more than one year's standing and reading the same 10.00 Sec. 271. Payment of Fees. - The fees mentioned in the preceding section shall be paid to the cashier of the Commission who shall in all cases issue a receipt for the same and shall enter the amount received upon his book specifying the date when received, the fee, and the person from whom received. The cashier shall immediately report such payment to the Commission.

338

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XXIV TRANSITORY PROVISIONS

Sec. 272. Pending actions. - Pending actions and causes of action arising before the effectivity of this Code shall be governed by the laws then in force. Sec. 273. Designation of certain pre-election acts immediately after the approval of this Code. - If it should no longer be reasonably possible to observe the periods and dates herein prescribed for certain pre-election acts in the election immediately following the approval of this Code, the Commission shall fix other periods in order to ensure that voters shall not be deprived of their right of suffrage. Sec. 274. Accreditation of dominant opposition party. - For purposes of the next local elections in 1986 and the next presidential elections in 1987 or earlier, the dominant opposition party shall be that political party, group or organization or coalition of major national or regional political parties opposed to the majority party which has the capability to wage a bona fide nationwide campaign as shown by the extent of its organization and the number of Members of Parliament affiliated with it: Provided, however, That with specific reference to the next local elections in constituencies which are represented in the Batasang Pambansa by Members who do not belong either to the majority party or to the political party or coalition of political parties described above, the representatives of the opposition in the board of election inspectors, board of canvassers or other similar bodies shall be proposed exclusively by the party to which said Member of the Batasang Pambansa belong: Provided, however, That it is registered before the next local elections. Any political party, group or organization or coalition of political parties seeking accreditation under this section shall file a verified petition with the Commission on Elections stating therein such information as may be necessary to enable the Commission to determine the qualifications for accreditation in accordance with the standard herein provided. The Commission on Elections shall accredit the dominant opposition party not later than thirty days before the campaign period in every election. In case a presidential election is held before the next local elections or before the presidential election in 1987, the provisions of the Constitution shall be enforced in determining which shall be the dominant opposition party for purposes of the next local elections. 339

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Sec. 275. Party representatives in the board of election inspectors. - Until such time as the two accredited political parties are determined in accordance with the provisions of the Constitution, the two members shall each be proposed by the ruling party and the dominant opposition party as may be determined by the Commission pursuant to the provisions of this Code. Sec. 276. Appropriations, and insurance for board of election inspectors. The cost of holding the next local elections provided in this Code shall be funded out of the current appropriations of the Commission on Elections provided for this purpose. In case of deficiency, additional funding may be provided out of the special activities fund intended for special priority activities authorized in the General Appropriations Act. The chairman and the poll clerk of the board of election inspectors shall receive per diem at the rate of one hundred pesos on election day and fifty pesos on each of the registration and revision days. The inspectors of the political parties shall be granted a per diem of fifty pesos on election day and twenty-five pesos on each of the registration and revision days. Education support personnel of the Ministry of Education, Culture and Sports shall receive a per diem of twenty-five pesos during election day. Supervisors, principals and other administrators of the Ministry of Education, Culture and Sports who may be asked by the Commission, and actually report, for supervisory assignment during registration and election day shall be entitled to a per diem of fifty pesos. The provincial, city and municipal treasurers shall receive per diem at the rate of one hundred pesos on election day. Payments of per diems under this section shall be made within seventytwo hours after the election or registration day. The chairman, poll clerk and party representatives in the board of election inspectors shall be insured with the government Service Insurance System at fifty thousand pesos each under terms and conditions that shall be agreed upon by the Chairman of the Commission, the Ministries of the Budget, and the Minister of Education, Culture and Sports. Sec. 277. Special election for President before 1987. - In case a vacancy in the Office of the President occurs before the presidential election in 1987, the Speaker of the Batasang Pambansa shall act as President until a President and a Vice-President or either of them shall have been elected and shall have qualified. Their term of office shall commence at noon of the tenth day following their proclamation, and shall end at noon on the thirtieth day of June of the sixth year thereafter. 340

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Acting President may not declare martial law or suspend the privilege of the writ of habeas corpus without the prior consent of at least a majority of all the Members of the Batasang Pambansa, or issue any decree, order or letter of instructions while the lawmaking power of the President is in force. He shall be deemed automatically on leave and the Speaker ProTempore shall act as Speaker. While acting as President, the Speaker may not be removed. He shall not be eligible for election in the immediately succeeding election for President and Vice-President. The Batasang Pambansa shall, at ten o'clock in the morning of the third day after the vacancy occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-president to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph (2), Section 19, Article VIII of the Constitution and shall become law upon its approval on third reading by the Batasang Pambansa. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph (4), Section 16 of Article VIII of the Constitution. As provided in the third paragraph, Section 9 of Article VII thereof, the convening of the Batasang Pambansa cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within seventy days before the date of the presidential election of 1987. Appointments extended by the Acting President shall remain effective, unless revoked by the newly elected President within ninety days from his assumption of office. Sec. 278. Special election to fill existing vacancies in the Batasang Pambansa. - The election of Members to fill existing vacancies in the Batasang Pambansa shall be held simultaneously with the next local election in 1986 or in the next special national election for President and Vice-President if one is held earlier. Sec. 279. Elective officials in existing sub-provinces. - The election of elective public officials in existing sub-provinces shall likewise be held simultaneously with the next local elections of 1986 and 1990 in accordance with their respective charters, subject to the same term, qualifications, manner of election and resolution of election controversies as are herein provided for comparable provincial elective officials.

341

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ARTICLE XXV FINAL PROVISIONS

Sec. 280. Reorganization of the Commission on Elections. - In order to promote maximum efficiency in carrying out its constitutional duty to insure free, orderly and honest elections and in discharging its judicial powers and functions under the Constitution, the Commission is hereby authorized to reorganize its office within twelve months after the first election to be held under this Code. It may create, merge, or abolish departments, offices, divisions or units, redistribute functions and reassign personnel, change designations of existing positions subject to pertinent existing laws and regulations. It may recommend the levels and rates of salaries of its subordinate officials and employees subject to the laws and regulations on civil service and compensation, position classification and standardization of salaries: Provided, That no permanent official or employee already in the service of the Commission, upon approval of this Code, shall be laid off, or demoted in rank or salary. Sec. 281. Separability clause. - If for any reason any section or provision of this Code, or any portion thereof, or the application of such section, provision or portion to any person, group or circumstance is declared invalid or unconstitutional, the remainder of this Code or the application of such section, provision or portion thereof to other persons, groups or circumstances shall not be affected by such declaration. Sec. 282. Repealing clause. - Presidential Decree No. 1296, otherwise known as The 1978 Election Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII. Sec. 283. Effectivity. - This Code shall take effect upon its approval. Approved: December 3, 1985

342

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS APPENDIX A RESOLUTION No. 8696 RULES ON DISQUALIFICATION CASES FILED IN CONNECTION WITH THE MAY 10, 2010 AUTOMATED NATIONAL AND LOCAL ELECTIONS Promulgation: 11 November 2009

The Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code and other election laws, RESOLVED to promulgate, as it hereby RESOLVES to prescribe the following rules of procedure concerning the filing of the following petitions for purposes of the May 10, 2010 national and local elections: a) Petition to Deny Due Course to or Cancel Certificate of Candidacy; b) Petition To Declare A Candidate As Nuisance Candidate; c) Petition To Disqualify A Candidate Pursuant to Sec. 68 of the Omnibus Election Code; and d) Petition To is Disqualify A Candidate for Lack of Qualifications or Possessing Some Grounds For Disqualification, SECTION 1. Suspension of the Comelec Rules of Procedures. - In the interest of justice and in order to attain speedy disposition of cases, the application of the Comelec Rules of Procedure or any portion thereof inconsistent herewith is hereby suspended. SEC. 2. Where to file petitions. - The petitions herein mentioned shall be filed with the Office of the Clerk of the Commission, Commission on Elections, in Manila. Petitions for disqualification filed with offices other than with the Office of the Clerk of the Commission shall not be accepted. SEC. 3. Petitions filed through mail or not in accordance with rules; Effect. Petitions filed through mail and/or not in accordance with the herein rules shall not be accepted or docketed. However, petitioner may re-file the petition in accordance with the herein rules and before the lapse of the reglementary period provided for the filing for each petition. 343

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SEC. 4. Procedure in filing petitions. - For purposes of the preceding sections, the following procedure shall be observed: PETITION TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF CANDIDACY A verified petition to deny due course or to cancel certificate of candidacy may be filed by any person within five (5) days from the last day for the filing of certificate of candidacy but not later than twenty-five (25) days from the filing of certificate of candidacy under Section 78 of the Omnibus Election Code (OEC); The petition shall be filed in ten (10) legible copies, personally or through a duly authorized representative, by any :person of voting age or a duly registered political party, organization, or coalition of political parties exclusively on the ground that any material representation contained therein as required under Section 74 of the OEC is false. PETITION TO DECLARE A NUISANCE CANDIDATE A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of the OEC, as amended by Section 5 of R.A. 6646, must be filed within five (5) days from the last day for the filing of certificates of candidacy; The petition shall be filed in ten (10) legible copies personally or through a duly authorized representative, by any candidate for the same office on the following grounds: 2.1. The certificate of candidacy has been filed to put the election process in mockery or disrepute; 2.2. The certificate of candidacy causes confusion among voters by the similarity of the names of the registered candidates; 2.3. By other acts or circumstances which clearly demonstrate that the candidate has no bona fideintention to run for the office for which the certificate of candidacy has been filed and thus prevent the faithful determination of the true will of the electorate. B. PETITION TO DISOUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE Omnibus Election Code AND PETITION TO DISOUALIFY FOR LACK OF OUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation; 344

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The petition to disqualify a candidate pursuant to Section 68 of the OEC shall be filed in ten (10) legible copies, personally or through a duly authorized representative, by any citizen of voting age, or duly registered political party, organization or coalition of political parties against any candidate who, in an action or protest in which he is a party, is declared by final decision of a competent court, guilty of, or found by the Commission of, having: 2.1. Given money or other material consideration to influence, induce or corrupt voters or public officials performing electoral functions; 2.2. Committed acts of terrorism to enhance his candidacy; or 2.3. Spent in his election campaign an amount in excess of that allowed by law; or 2.4. Solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; or 2.5. Violated any of Sections 80, 83, 85, 86 and 261 paragraphs d, e, k and v and cc sub-paragraph 6 of the OEC, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification, shall be filed in ten (10) legible copies, personally or through a duly authorized representative, by any person of voting age, or duly registered political party, organization or coalition of political parties on the ground that the candidate does not possess all the qualifications as provided for by the Constitution or by existing law or who possesses some grounds for disqualification as provided for by the Constitution or by existing law. C. COMMON PROCEDURES Petitioner shall, before the filing of the petition, furnish a copy of the petition through personal service, to the respondent. In case personal service is not feasible, or the respondent refuses to receive the petition or the respondent's whereabouts cannot be ascertained, the petitioner shall execute an affidavit stating the reasons or circumstances therefore; The proof of service or the affidavit shall be attached to the petition to be filed with the Office of the Clerk of the Commission; Upon payment of the filing fee of Php5,000.00 and legal research fee of Php50.00, the Office of the Clerk of the Commission shall docket the petition and assign to it a docket number, which must be consecutive according to the order of receipt, and must bear the year and prefixed as SPA (DC); 345

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS No petition shall be docketed unless the requirements in the preceding paragraphs have been complied with; Upon proper filing and docketing of the petition, the Office of the Clerk of the Commission shall, within three (3) calendar days, issue summons with notice of hearing through personal service or telegram, facsimile or through the most fastest means of communication, to the respondent and notice of hearing to the petitioner; Within three (3) calendar days from receipt of summons, the respondent shall, personally or through his authorized representative, file his verified answer (not a Motion to Dismiss) to the petition, at the Office of the Clerk of the Commission, in ten (10) legible copies, with proof of personal service of Answer upon the petitioner. Grounds for Motion to Dismiss may be raised as an Affirmative Defense; The proceeding shall be summary in nature. In lieu of oral testimonies, the parties shall submit the affidavits of their witnesses and other documentary evidence together with their position papers or memoranda. The position paper or memoranda of each party shall contain the following: 7.1. A "Statement of the Case", which is a clear and concise statement of the nature of the action, a summary of the documentary evidence, and other matters necessary to an understanding of the controversy; 7.2. A "Statement of the Issues", which is a clear and concise statement of the issues; 7.3. The "Argument", which is a clear and concise presentation of the argument in support of each issue; and 7.4. The "Relief", which is a specification of the judgment which the party seeks to obtain. Issues raised in the pleadings that are not included in the memorandum shall be deemed waived or abandoned. The Commission may consider the memorandum alone in deciding or resolving the petition, as said memorandum is a summation of the parties' pleadings and documentary evidence. SEC. 5. Motu Proprio Cases. - The Commission may, at any time before the election, motu proprio refuse to give due course to or cancel any certificate of candidacy of any candidate for the positions of President, Vice-President, Senator and Party-List, on the following grounds: a) Candidates who, on the face of their certificates of candidacy or, in the case of party-list groups - manifestation of intent to participate in the party-list system 346

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS of representation - do not possess the constitutional and legal qualifications of the office to which they aspire to be elected; b) Candidates or party-list group who, on the face of said certificates or in the case of party-list groups - manifestation of intent to participate in the party-list system of representation - filed their certificates or manifestation to put the election process in mockery or disrepute; c) Candidates whose certificates of candidacy or party-list groups whose manifestation could cause confusion among the voters by the similarity of names and surnames with other registered candidates or by the similarity of their party-list name or acronym; and d) Candidates or party-list groups who have no bona fide intention to run for the office for which the certificate of candidacy or manifestation had been filed or acts that clearly demonstrate the lack of such bona fide intention, such as: d.1. Candidates who do not belong to or are not nominated by any registered political party or national constituency; d.2. Candidates who do not have a platform of government and are not capable of waging a nationwide campaign. Upon receipt of the certificates of candidacy for President, Vice-President, Senator, or upon receipt of the manifestation of intent to participate for the and party-List, the Law Department shall, within five (5) days from the last day for filing certificate of candidacy and manifestation, forward to the Commission en banc through the Office of the Commission Secretary, the certificates of candidacy and manifestation, together with its study and recommendation; The Commission Secretary shall upon receipt thereof, immediately calendar for deliberation the certificates of candidacy and manifestation together with the study and recommendation of the Law Department with notice to all members of the Commission. Within three (3) days from the date of the deliberation, the Commission shall resolve all matters relative to the certificates of candidacy and manifestation submitted to it. The Resolution denying due course or cancelling the certificate of candidacy of candidates for President, Vice-President and Senator, or manifestation, shall be published in two (2) newspapers of general circulation. Any candidate whose certificate of candidacy or any party-list group whose manifestation has been adversely affected may, personally or through a duly authorized representative, file a verified opposition thereto, in ten (10) legible copies, within five (5) days from the date of publication, with the Office of the 347

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Clerk of the Commission, which shall assign a docket number which must be consecutive according to the order of receipt and must bear the year and prefixed as SPA (MP); The Clerk of the Commission shall set the opposition for hearing within three (3) days from receipt thereof. Within two (2) days after the hearing, the Clerk of the Commission shall calendar the Opposition for consultation and thereafter, the member to whom the case is assigned shall pen the decision within five (5) days from the date of consultation. SEC. 6. Promulgation. - The promulgation of a Decision or Resolution of the Commission or a Division shall be made on a date previously fixed, notice of which shall be served in advance upon the parties or their attorneys personally, or by registered mail, telegram, fax or thru the fastest means of communication. SEC. 7. Motion for reconsideration. - A motion to reconsider a Decision, Resolution, Order or Ruling of a Division shall be filed within three (3) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the Decision, Resolution, Order or Ruling. Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. The Clerk of the Commission shall calendar the Motion for Reconsideration for the resolution of the Commission en banc within three (3) days from the certification thereof. SEC. 8. Effectivity. - This Resolution shall take effect on the seventh (7th) day after its publication in two (2) daily newspapers of general circulation. The Education and Information Department, this Commission, shall cause the publication of this Resolution in two (2) daily newspapers of general circulation. SEC. 9. Dissemination. - The Education and Information Department of the Commission shall furnish copies of this Resolution to all field officials of the Commission, the political parties and accredited citizens' arm. SO ORDERED.

348

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS APPENDIX B R.A. 9369 AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTIONS LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES"

SECTION 1. Section 1 of Republic Act No. 8436 is hereby amended to read as follows: "SECTION 1. Declaration of Policy. - It is the policy of the State to ensure free, orderly, honest, peaceful, credible and informed elections, plebiscites, referenda, recall and other similar electoral exercises by improving on the election process and adopting systems, which shall involve the use of an automated election system that will ensure the secrecy and sanctity of the ballot and all election, consolidation and transmission documents in order that the process shall be transparent and credible and that the results shall be fast, accurate and reflective of the genuine will of the people. "The State recognizes the mandate and authority of the Commission to prescribe the adoption and use of the most suitable technology of demonstrated capability taking into account the situation prevailing in the area and the funds available for the purpose." SEC. 2. Section 2 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 2. Definition of Terms. - As used in this Act, the following terms shall mean: "1. Automated election system, hereinafter referred to as AES - a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election results, and other electoral processes; "2. Electronic transmission - conveying data in electronic form from one location to another; "3. Official ballot - where AES is utilized, refers to the paper ballot, whether printed or generated by the technology applied, that faithfully captures or 349

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS represents the votes cast by a voter recorded or to be recorded in electronic form; "4. Election returns - a document in electronic and printed form directly produced by the counting or voting machine, showing the date of the election, the province, municipality and the precinct in which it is held and the votes in figures for each candidate in a precinct in areas where AES is utilized; "5. Statement of votes - a document containing the votes obtained by candidates in each precinct in a city/municipality; "6. City/municipal/district/provincial certificate of canvass - a document in electronic and printed form containing the total votes in figures obtained by each candidate in a city/municipality/district/province as the case may be. The electronic certificates of canvass shall be the official canvass results in the aforementioned jurisdictions; "7. Paper-based election system - a type of automated election system that uses paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count;" "8. Direct recording electronic election system - a type of automated election system that uses electronic ballots, records votes by means of a ballot display provided with mechanical or electro-optical components that can be activated by the voter, processes data by means of a computer program, records voting data and ballot images, and transmits voting results electronically; "9. Counting center - a public place within the city/municipality or in such other places as may be designated by the Commission where the official ballots cast in various precincts of the city/municipality shall be counted. Polling places or voting centers may also be designated as counting centers; "10. Continuity plan - a list of contingency measures, and the policies for activation of such, that are put in place to ensure continuous operation of the AES; "11. Disabled voters - a person with impaired capacity to use the AES;

"12. Source code - human readable instructions that define what the computer equipment will do; and "13. Station - refers to a polling place, counting center, municipal or provincial canvassing center." SEC. 3. Section 3 of Republic Act No. 8436 is hereby amended to read as follows: 350

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "SEC 3. Board of Election Inspectors. - Where AES shall be adopted, at least one member of the Board of Election Inspectors shall be an information technologycapable person, who is trained or certified by the DOST to use the AES. Such certification shall be issued by the DOST, free of charge." SEC. 4. Section 4 of Republic Act No. 8436 is hereby deleted. The succeeding sections are hereby renumbered accordingly. SEC. 5. Section 5 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 4. Information Technology Support for the Board of Canvassers. - To implement the AES, each board of canvassers shall be assisted by an information technology-capable person authorized to operate the equipment adopted for the elections. The Commission shall deputize information technology personnel from among the agencies and instrumentalities of the government, including government-owned and controlled corporations. The per diem of the deputized personnel shall be the same as that of the members of the board of canvassers." SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 5. Authority to Use an Automated Election System. - To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, That for the regular national and local elections, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) months prior to the May 14, 2007 elections shall not be chosen: Provided finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide." SEC. 7. Section 7 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 6. Minimum System Capabilities. - "The automated election system must at least have the following functional capabilities (a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results; 351

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (c) Error recovery in case of non-catastrophic failure of device;

(d) System integrity which ensures physical stability and functioning of the vote recording and counting process; (e) Provision for voter verified paper audit trail; (f) System auditability which provides supporting documentation for verifying the correctness of reported election results; (g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election results in the shortest time possible; (h) Accessibility to illiterates and disabled voters; (i) Vote tabulating program for election, referendum or plebiscite; (j) Accurate ballot counters; (k) Data retention provision; (l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process; (m) Utilize or generate official ballots as herein defined; (n) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and (o) Configure access control for sensitive system data and functions. "In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. This evaluation system shall be developed with the assistance of an advisory council." SEC. 8. A new Section 7 is hereby provided to read as follows: "SEC. 7. Communication Channels for Electronic Transmissions. - All electronic transmissions by and among the AES and its related components shall utilize secure communication channels as recommended by the Advisory Council, to ensure authentication and integrity of transmissions." SEC. 9. New Sections 8, 9, 10 and 11 are hereby provided to read as follows: 352

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "SEC. 8. The Advisory Council. - The Commission shall create an Advisory Council, hereafter referred to as the Council, which shall be convened not later than eighteen (18) months prior to the next scheduled electoral exercise, and deactivated six months after completion of canvassing: Provided, for purposes of the 2007 elections, the Advisory Council shall be immediately convened within ten (10) days after the effectivity of this Act. "The Council shall be composed of the following members, who must be registered Filipino voters, of known independence, competence and probity; "(a) The Chairman of the Commission on Information and Communications Technology (CICT) who shall act as the chairman of the Council; "(b) "(c) One member from the Department of Science and Technology; One member from the Department of Education;

"(d) One member representing the academe, to be selected by the chair of the Advisory Council from among the list of nominees submitted by the country's academic institutions; "(e) Three members representing ICT professional organizations to be selected by the chair of the Advisory Council from among the list of nominees submitted by Philippine-based ICT professional organizations. Nominees shall be individuals, at least one of whom shall be experienced in managing or implementing large-scale IT projects. "(f) Two members representing nongovernmental electoral reform organizations, to be selected by the chair of the Advisory Council from among the list of nominees submitted by the country's nongovernmental electoral reform organizations. "A person who is affiliated with any political party or candidate for any national position, or is related to a candidate for any national position by affinity or consanguinity within the fourth civil degree, shall not be eligible for appointment or designation to the Advisory Council. Should any such situation arise at any time during the incumbency of a member, the designation or appointment of that member shall ipso facto be terminated. "Any member of the Advisory Council is prohibited from engaging, directly or indirectly, with any entity that advocates, markets, imports, produces or in any manner handles software, hardware or any equipment that may be used for election purposes for personal gain. "Any violation of the two immediately preceding paragraphs shall disqualify said member from the Advisory Council and shall be punishable as provided in 353

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS this Act and shall be penalized in accordance with the Anti-Graft and Corrupt Practices Act and other related laws. "The council may avail itself of the expertise and services of resource persons who are of known independence, competence and probity, are nonpartisan, and do not possess any of the disqualifications applicable to a member of the Advisory Council as provided herein. The resource persons shall also be subject to the same prohibitions and penalties as the members of the Advisory Council. "The Commission on Information and Communications Technology (CICT) shall include in its annual appropriation the funds necessary to enable the Council to effectively perform its functions." "SEC. 9. Functions of the Advisory Council. - The Council shall have the following functions: Recommend the most appropriate, secure, applicable and cost-effective technology to be applied in the AES, in whole or in part, at that specific point in time.

Participate as nonvoting members of the Bids and Awards Committee in the conduct of the bidding process for the AES. Members of the Advisory Council representing the ICT professional organizations are hereby excluded from participating in any manner in the Bids and Awards Committee. Participate as nonvoting members of the steering committee tasked with the implementation of the AES. Members of the Advisory Council representing the ICT professional organizations are hereby excluded from participating in any manner in the steering committee. Provide advice and assistance in the review of the systems planning, inception, development, testing, operationalization, and evaluation stages. Provide advice and/or assistance in the identification, assessment and resolution of systems problems or inadequacies as may surface or resurface in the course of the bidding, acquisition, testing, operationalization, re-use, storage or disposition of the AES equipment and/or resources as the case may be. Provide advice and/or assistance in the risk management of the AES especially when a contingency or disaster situation arises. Prepare and submit a written report, which shall be submitted within six months from the date of the election to the oversight committee, evaluating the use of the AES. 354

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Nothing in the role of the Council or any outside intervention or influence shall be construed as an abdication or diminution of the Commission's authority and responsibility for the effective development, management and implementation of the AES and this Act." The Advisory Council shall be entitled to a just and reasonable amount of per diem allowances and/or honoraria to cover the expenses of the services rendered chargeable against the budget of the Commission." "SEC. 10. The Technical Evaluation Committee. - The Commission, in collaboration with the chairman of the Advisory Council, shall establish an independent technical evaluation committee, herein known as the Committee, composed of a representative each from the Commission, the Commission on Information and Communications Technology and the Department of Science and Technology who shall act as Chairman of the Committee. "The Committee shall be immediately convened within ten (10) days after the effectivity of this Act." "SEC. 11. Functions of the Technical Evaluation Committee. - The Committee shall certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercise, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act based, among others, on the following documented results: The successful conduct of a field testing process followed by a mock election event in one or more cities/municipalities; The successful completion of audit on the accuracy, functionality and security controls of the AES software; The successful completion of a source code review; A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas; A certification that the source code reviewed is one and the same as that used by the equipment; and The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the process such that a failure of elections, whether at voting, counting or consolidation, may be avoided. 355

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS For purposes of the 2007 elections, the certification shall be done not later than eight weeks prior to the date of the elections. "If the Commission decides to proceed with the use of the AES without the Committee's certification, it must submit its reason in writing, to the Oversight Committee, no less than thirty (30) days prior to the electoral exercise where the AES will be used. "The Committee may avail itself of the expertise and services of resource persons who are of known independence, competence and probity, are non partisan, and who do not possess any of the disqualifications applicable to a member of the Advisory Council as provided herein. The resource persons shall also be subject to the same prohibitions and penalties as the members of the Advisory Council. "The Committee shall closely coordinate with the steering committee of the Commission tasked with the implementation of the AES in the identification and agreement of the project deliverables and timelines, and in the formulation of the acceptance criteria for each deliverable." SEC. 10. Section 8 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 12. Procurement of Equipment and Materials. - To achieve the purpose of this Act, the Commission is authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities and other services, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulations. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system's fitness. "In determining the amount of any bid from a technology, software or equipment supplier, the cost to the government of its deployment and implementation shall be added to the bid price as integral thereto. The value of any alternative use to which such technology, software or equipment can be put for public use shall not be deducted from the original face value of the said bid." SEC. 11. Section 9 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 13. Continuity Plan. - The AES shall be so designed to include a continuity plan in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction or nonperformance of the electoral process. Activation of such continuity and contingency measures shall be undertaken in the 356

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS presence of representatives of political parties and citizens' arm of the Commission who shall be notified by the election officer of such activation. "All political parties and party-lists shall be furnished copies of said continuity plan at their official addresses as submitted to the Commission. The list shall be published in at least two newspapers of national of circulation and shall be posted at the website of the Commission at least fifteen (15) days prior to the electoral activity concerned." SEC. 12. Section 10 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code for Review. - The Commission shall allow the political parties and candidates or their representatives, citizens' arm or their representatives to examine and test. "The equipment or device to be used in the voting and counting on the day of the electoral exercise, before voting starts. Test ballots and test forms shall be provided by the Commission. "Immediately after the examination and testing of the equipment or device, the parties and candidates or their representatives, citizens' arms or their representatives, may submit a written comment to the election officer who shall immediately transmit it to the Commission for appropriate action. "The election officer shall keep minutes of the testing, a copy of which shall be submitted to the Commission together with the minutes of voting." "Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof." SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each 357

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be voted upon, the choices should be uniformly indicated using the same font and size. "A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided. "For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. "Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy. "With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizen's arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. "To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot. "The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct." SEC. 14. Section 13 of Republic Act No. 8436 is hereby amended to read as follows:

358

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "SEC. 17. Ballot box. - Where applicable, there shall be in each precinct on election day a ballot box with such safety features that the Commission may prescribe and of such size as to accommodate the official ballots." SEC. 15. Section 14 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 18. Procedure in voting. - The Commission shall prescribe the manner and procedure of voting, which can be easily understood and followed by the voters, taking into consideration, among other things, the secrecy of the voting." SEC. 16. Section 15 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 19. Closing of polls. - The Commission shall prescribe the time, manner and procedure of closing the polls and the steps for the correct reporting of votes cast and the proper conduct of counting for areas covered by the AES." SEC. 17. Section 16 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 20. Notice of Designation of Counting Centers. - The election officer shall post prominently in his/her office, in the bulletin boards at the city/municipal hall and in three other conspicuous places in the city/municipality, the notice on the designated counting center(s) for at least three weeks prior to election day. The notice shall specify the precincts covered by each counting center and the number of registered voters in each of said precincts. The election officer shall also furnish a copy of the notice to the headquarters or official address of the political parties or independent candidates within the same period. The election officer shall post in the Commission website concerned the said notice and publish the notices in the local newspapers. Where the polling place or voting center is also the designated counting center, such information shall be contained in the notice. "The Commission may not designate as counting center any building or facility located within the premises of a camp, reservation compound, headquarters, detachment, or field office of the military, police, prison or detention bureau, or any law enforcement or investigation agency." SEC. 18. Section 17 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 21. Counting Procedure. - The Commission shall prescribe the manner and procedure of counting the votes under the automated system: Provided, That apart from the electronically stored result, thirty (30) copies of the election return are printed." 359

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SEC. 19. Section 18 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 22. Electronic Returns. - Each copy of the printed election returns shall bear appropriate control marks to determine the time and place of printing. Each copy shall be signed and thumbmarked by all the members of the board of election inspectors and the watchers present. If any member of the board of election inspectors present refuses to sign, the chairman of the board shall note the same copy in each copy of the printed election returns. The member of the board of election inspectors concerned refusing to sign shall be compelled to explain his or her refusal to do so. Failure to explain an unjustifiable refusal to sign each copy of the printed election return by any member of the board of election inspectors shall be punishable as provided in this Act. The chairman of the board shall then publicly read and announce the total numbers of registered voters, the total number of voters who actually voted and the total numbers of votes obtained by each candidate based on the election returns. "Thereafter, the copies of the election returns shall be sealed and placed in the proper envelopes for distribution as follows: "A. In the election of president, vice-president, senators and party-list system; 1) The first copy shall be delivered to the city or municipal board of canvassers; 2) The second copy, to the Congress, directed to the President of the Senate; 3) The third copy, to the Commission;

4) The fourth copy, to the citizens' arm authorized by the Commission to conduct an unofficial count. 5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law; 6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; and 7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots. 8) The eighth copy, to the Provincial Board of Canvassers;

360

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 9) The ninth to the eighteenth copies, to the ten (10) accredited major national parties, excluding the dominant majority and minority parties, in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166; 10) The nineteenth and twentieth copies, to the two accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 of Republic Act No. 7166; 11) The twenty-first to the twenty-fourth copies, to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; 12) The twenty-fifth and twenty-sixth copies, to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and 13) The twenty-seventh to the thirtieth copies, to the major citizens' arms, including the accredited citizens' arm, and other non-partisan groups or organization enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arms, groups and organizations may use the four certified copies of election returns for the conduct of citizens' quick counts at the local or national levels; "B. In the election of local officials and members of the House of Representatives: 1) The first copy shall be delivered to the city or municipal board of canvassers; 2) 3) The second copy, to the Commission; The third copy, to the provincial board of canvassers;

4) The fourth copy, to the citizens' arm authorized by the Commission to conduct an unofficial count. 5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law; 6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; and 361

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots; 8) The eight copy to be posted conspicuously on a wall within the premises of the polling place or counting center; 9) The ninth to the eighteenth copies, shall be given to the ten (10) accredited major national parties, excluding the dominant majority and minority parties, in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166; 10) The nineteenth and twentieth copies shall be given to the two accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 of Republic Act No. 7166; 11) The twenty-first to the twenty-fifth copies, to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; 12) The twenty-sixth and twenty-seventh copies, to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and 13) The twenty-eighth to the thirtieth copies to the major citizens' arms, including the accredited citizens' arm, and other non-partisan groups or organizations enlisted by the Commission pursuant to section 52(k) of Batas Pambansa Blg. 881. Such citizens' arms, groups and organizations may use the five certified copies of election returns for the conduct of citizens' quick counts at the local or national levels. "Immediately after the eight copy is printed, the poll clerk shall announce the posting of said copy on a wall within the premises of the polling place or counting center, which must be sufficiently lighted and accessible to the public. Any person may view or capture an image of the election return by means of any data capturing device such as, but not limited to, cameras at any time of the day for forty-eight (48) hours following its posting. After such period, the chairman of the board of election inspectors shall detach the election return from the wall and keep the same in his custody to be produced as may be requested by any voter for image or data capturing or for any lawful purpose as may be ordered by competent authority. "Within one hour after the printing of the election returns, the chairman of the board of election inspectors or any official authorized by the Commission shall, 362

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS in the presence of watchers and representatives of the accredited citizen's arm, political parties/candidates, if any, electronically transmit the precinct results to the respective levels of board of canvassers, to the dominant majority and minority party, to the accredited citizen's arm, and to the Kapisanan ng mga Broadcasters ng Pilipinas (KBP). "The election results at the city/municipality canvassing centers shall be transmitted in the same manner by the election officer or any official authorized by the Commission to the district or provincial canvassing centers. "The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate." "After the electronic results have been transmitted, additional copies not to exceed thirty (30) may be printed and given to requesting parties at their own expense." SEC. 20. Section 21 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 25. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - The city or municipal board of canvassers shall canvass the votes for the president, vice-president, senators, and parties, organizations or coalitions participating under the party-list system by consolidating the electronically transmitted results or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall print the certificate of canvass of votes for president, vicepresident, senators and members of the House of Representatives and elective provincial officials and thereafter, proclaim the elected city or municipal officials, as the case may be. "The city board of canvassers of cities comprising one or more legislative districts shall canvass the votes for president, vice-president, senators, members of the House Representatives and elective city officials by consolidating the certificates of canvass electronically transmitted or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, the board shall produce the canvass of votes for president, vice-president, and senators and thereafter, proclaim the elected members of the House of Representatives and city officials. "In the Metro Manila area, each municipality comprising a legislative district shall have a district board of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective municipal officials by consolidating the electronically transmitted results or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall produce the 363

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS certificate of canvass of votes for president, vice-president, and senators and thereafter, proclaim the elected members of the House Representatives and municipal officials. "Each component municipality in a legislative district in the Metro Manila area shall have a municipal board of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective municipal officials by consolidating the results electronically transmitted from the counting centers or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall prepare the certificate of canvass of votes for president, vice-president, senators, members of the House of Representatives and thereafter, proclaim the elected municipal officials. "The district board of canvassers of each legislative district comprising two municipalities in the Metro Manila area shall canvass the votes for president, vice-president, senators and members of the House of Representatives by consolidating the certificates of canvass electronically transmitted from the city/municipal consolidating centers or the results contained in the data storage devices submitted by the municipal board of canvassers of the component municipalities. Upon completion of the canvass, it shall produce a certificate of canvass of votes for president, vice-president and senators and thereafter, proclaim the elected members of the House of Representatives in the legislative district. "The district/provincial board of canvassers shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective provincial officials by consolidating the results electronically transmitted from the city/municipal consolidating centers or the results contained in the data storage devices submitted by the board of canvassers of the municipalities and component cities. Upon completion of the canvass, it shall produce the certificate of canvass votes for president, vice-president and senators and thereafter, proclaim the elected members of the House of Representatives and the provincial officials. "The municipal, city, district and provincial certificates of canvass of votes shall each be supported by a statement of votes. "Within one hour after the canvassing, the Chairman of the district or provincial Board of Canvassers or the city board of canvassers of those cities which comprise one or more legislative districts shall electronically transmit the certificates of canvass to the Commission sitting as the national board of canvassers for senators and party-list representatives and to the Congress as the National Board of Canvassers for the president and vice president, directed to the President of the Senate.

364

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "The Commission shall adopt adequate and effective measures to preserve the integrity of the certificates of canvass transmitted electronically and the results in the storage devices at the various levels of the boards of canvassers. "The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate." SEC. 21. Section 22 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 26. Number of Copies of Certificates of Canvass of Votes and Their Distribution. (a) The certificate of canvass of votes for president, vice-president, senators, members of the House of Representatives, parties, organizations or coalitions participating under the party-list system and elective provincial officials shall be produced by the city or municipal board of canvassers and distributed as follows: "(1) The first copy shall be delivered to the provincial board of canvassers for use in the canvass of election results for president, vice-president, senators, members of the House of Representatives, parties, organizations or coalitions participating under the party-list system and elective provincial officials; "(2) "(3) The second copy shall be sent to the Commission; The third copy shall be kept by the chairman of the board; and

"(4) The fourth copy shall be given to the citizens' arm designated by the Commission to conduct an unofficial count. It shall be the duty of the citizens' arm to furnish independent candidates copies of the certificate of canvass at the expense of the requesting party. "(5) The fifth copy to Congress, directed to the President of Senate;

"(6) The sixth copy to be posted on a wall within the premises of the canvassing center; "(7) The seventh and eighth copies shall be given to the dominant majority and minority parties; "(8) The ninth to eighteenth copies shall be given to the ten (10) accredited major national parties, excluding the dominant majority and minority parties, in accordance with a voluntary agreement among them. If no such agreement is 365

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166; "(9) The nineteenth and twentieth copies shall be given to the two accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 of Republic Act No. 7166; "(10) The twenty-first to the twenty-fifth copies, to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; "(11) The twenty-sixth and twenty-seventh copies, to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and "(12) The twenty-eighth to the thirtieth copies, to the major citizens' arms, including the accredited citizens' arm, and other non-partisan groups or organizations enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arms, groups and organization may use the three certified copies of election returns for the conduct of citizens' quick counts at the local or national levels." "The board of canvassers shall furnish all other registered parties copies of the certificate of canvass at the expense of the requesting party. "(b) The certificate of canvass of votes for president, vice-president and senators, parties, organizations or coalitions participating under the party-list system shall be produced by the city boards of canvassers of cities comprising one or more legislative districts, by provincial boards of canvassers and by district boards of canvassers in the Metro Manila area, and other highly urbanized areas and distributed as follows: "(1) The first copy shall be sent to Congress, directed to the President of the Senate for use in the canvass of election results for president and vice-president; "(2) The second copy shall be sent to the Commission for use in the canvass of the election results for senators; "(3) The third copy shall be kept by the chairman of the board; and

"(4) The fourth copy shall be given to the citizens' arm designated by the Commission to conduct an unofficial count. It shall be the duty of the citizens' arm to furnish independent candidates copies of the certificate of canvass at the expense of the requesting party. 366

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(5) The fifth copy to Congress, directed to the President of the Senate;

"(6) The six copy to be posted on a wall within the premises of the canvassing center; "(7) The seventh and eight copies to the dominant majority and minority parties; "(8) The ninth and tenth copies to two accredited major national parties representing the majority and the minority, excluding the dominant majority and minority parties, to be determined by the Commission on the basis of the criteria provided in Section 26 of Republic Act No. 7166; "(9) The eleventh to thirteenth copies to national broadcast media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and "(10) The fourteenth copy to another citizens' arm or in the absence thereof, to a non-partisan group or organization enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arm or non-partisan group or organization may use the copy of election return for the conduct of citizens' quick counts at the local or national levels. "The board of canvassers shall furnish all other registered parties copies of the certificate of canvass at the expense of the requesting party. "(c) The certificates of canvass printed by the provincial, district, city or municipal boards of canvassers shall be signed and thumb marked by the chairman and members of the board and the principal watchers, if available. Thereafter, it shall be sealed and placed inside an envelope which shall likewise be properly sealed. "In all instances, where the Board of Canvassers has the duty to furnish registered political parties with copies of the certificate of canvass, the pertinent election returns shall be attached thereto, where appropriate." "Immediately after the sixth copy and its supporting statement of votes are printed, the chairman of the board of canvassers shall announce the posting of said prints on a wall within the premises of the canvassing center, which must be sufficiently lighted and accessible to the public. Any person may view or capture an image of the Certificate of Canvass or the supporting statement of votes by means of any data capturing device such as, but not limited to, cameras at any time of the day for forty-eight (48) hours following the posting. After such period, the chairman of the board of canvassers shall detach the election return from the wall and keep the same in his custody to be produced as may be requested by any voter for image or data capturing or for any lawful purpose as may be ordered by competent authority." 367

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SEC. 22. Section 23 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 27. National Board of Canvassers for Senators and Party-List Representatives. - The chairman and members of the Commission on Elections sitting en banc, shall compose the national board of canvassers for senators and party-list representatives. It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives." SEC. 23. Section 24 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 28. Congress as the National Board of Canvassers for President and VicePresident. - The Senate and the House of Representatives in joint public session shall compose the national board of canvassers for president and vice-president. The certificate of canvass for president and vice-president duly certified by the board of canvassers of each province or city, shall be electronically transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty (30) days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vicepresident and thereafter, proclaim the winning candidates." SEC. 24. A new Section 29 is hereby provided to reads as follows: "SEC 29. Random Manual Audit. - Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error." SEC. 25. A new Section 30 is hereby provided to read as follows: "Sec. 30. Authentication of Electronically Transmitted Election Results. - The manner of determining the authenticity and due execution of the certificates shall conform with the provisions of Republic Act No. 7166 as may be supplemented or modified by the provisions of this Act, where applicable, by appropriate authentication and certification procedures for electronic data, electronic documents and electronic signatures as provided in Republic Act No. 8792 as well as the rules promulgated by the Supreme Court pursuant thereto." SEC. 26. Section 25 of Republic Act No. 8436 is hereby amended to read as follows: 368

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "SEC. 31. Stakeholder education and training. - The Commission shall, not later than six months before the actual automated election exercise, undertake a widespread stakeholder education and training program, through newspapers of general circulation, radio, television and other media forms, as well as through seminars, symposia, fora and other nontraditional means, to educate the public and fully inform the electorate about the AES and inculcate values on honest, peaceful, orderly and informed elections. "Such program shall ensure the acceptance and readiness of the following stakeholders to understand and appreciate the benefits of the AES: General public/voters; Commission's staff; Department of Education, Department of Finance (municipal, city and provincial treasurers) and all other government agencies who will play a role in the electoral exercise; Local government officials (provincial, municipal, barangay levels); Incumbent elected officials in the legislative and executive departments; Political parties and candidates; Members of the military and police. "The general public or voters training will focus on building the capability to use the automated system to cast their vote, as well as general appreciation of the AES. All other stakeholders mentioned above will receive additional information in order to build a deeper understanding of the voting, counting, canvassing procedures, so that they may act as advocates of the AES. "The Commission together with and in support of accredited citizens' arms shall carry out a continuing and systematic campaign through newspapers of general circulation, radio and other media forms, as well as through seminars, symposia, fora and other nontraditional means to educate the public and fully inform the electorate about the AES and inculcate values on honest, peaceful and orderly elections." SEC. 27. Section 27 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 33. Joint Congressional Oversight Committee. - An Oversight Committee is hereby created composed of seven members each from the Senate and the 369

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS House of Representatives, four of whom shall come from the majority and three from the minority, to monitor and evaluate the implementation of this Act. A written report to the Senate and the House of Representatives shall be submitted by the Advisory Council within six months from the date of election. The oversight committee shall conduct a mandatory review of this Act every twelve (12) months from the date of the last regular national or local elections." "The oversight committee shall conduct a comprehensive assessment and evaluation of the performance of the different AES technologies implemented and shall make appropriate recommendations to Congress, in session assembled, specifically including the following: "1. An assessment and comparison of each of the AES technologies utilized, including their strengths, weakness, applicability or inapplicability in specific areas and situations; "2. An evaluation of their accuracy through a comparison of a random sample of the AES election results with a manual tabulation, and the conduct of similar tests; "3. As to the scope of AES implementation in the subsequent elections, provide for recommendations as to whether any of the following should be adopted: "a. Further test application of the AES or a particular AES technology used in the 2007 elections, whether in the same or others areas; "b. An increase or enlargement of areas for implementation of the AES or an AES technology and not a full implementation; or "c. "4. A full implementation of the AES. As to the kind of AES technology, provide for proposals as to whether:

"a) A particular AES technology should no longer be utilized for being obsolete, inapplicable, inaccurate or with a defect which cannot be remedied; "b) An enhancement or improvement is needed to an AES technology which was used in the 2007 elections to make it more functional, appropriate and accurate; "c) A particular AES technology is already appropriate and should be utilized fully for subsequent elections; or "d) The testing or adoption of new technologies which may have emerged after the 2007 elections is needed." 370

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SEC. 28. Section 29 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 35. Prohibited Acts and Penalties. - The following shall be penalized as provided in this Act, whether or not said acts affect the electoral process or results: "(a) Utilizing without authorization, tampering with, damaging, destroying or stealing: "(1) Official ballots, election returns, and certificates of canvass of votes used in the system; and "(2) Electronic devices or their components, peripherals or supplies used in the AES such as counting machine, memory pack/diskette, memory pack receiver and computer set; "(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information; "(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified; "(d) Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers; "(e) Presentation by the citizens' arm of tampered or spurious election returns; "(f) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens' arm their copy of election returns; and "(g) The failure to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part [of] the election officer concerned." "Any person convicted for violation of this Act, except those convicted of the crime of electoral sabotage, shall be penalized with imprisonment of eight years and one day to twelve (12) years without possibility of parole, and perpetual disqualification to hold public office and deprivation of the right of suffrage. Moreover, the offender shall be perpetually disqualified to hold any non-elective public office."

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS SEC. 29. Section 30 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 36. Applicability. - The provisions of Batas Pambansa Blg. 881, as amended, otherwise known as the 'Omnibus Election Code of the Philippines', and other election laws not inconsistent with this Act shall apply." SEC. 30. Section 31 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 37. Rules and Regulations. - The Commission shall promulgate rules and regulations for the implementation and enforcement of this Act. "Notwithstanding the foregoing canvassing procedure, the Commission is authorized to prescribe other manner or procedure for the canvassing and consolidation of votes as technology evolves, subject to the provisions of Section 7 hereof on the minimum capabilities of the AES and other pertinent laws." SEC. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows: "Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Sections 263 and 264 the Omnibus Election Code. "The chairman shall first read the votes for national positions. "Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881. SEC. 32. Section 212 of Batas Pambansa Blg. 881 as amended, is hereby to read as follows: "SEC. 212. Election Returns. - The board of election inspectors shall prepare the election returns simultaneously with the counting of votes in the polling places as prescribed in Section 210 hereof. The recording of vote shall be made as prescribed in said section. The entry of votes in words and figures for each 372

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote." "The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total numbers of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors." "The Commission shall take steps so that the entries on the first copy of the election returns are clearly reproduced on the second, third, fourth, fifth, and sixth copies thereof, and for the purpose this Commission shall use a special kind of paper." "Immediately upon the accomplishment of the election return for national positions, the poll clerk shall announce the posting of the second copy of the election return on a wall with sufficient lighting within the premises of the polling place or counting center. He shall then proceed to do the same in the presence of the other members of the Board, the watchers and those present in the polling place or counting center. Without delay and, when feasible, he shall secure an image of the election return using a secured data capturing device and immediately thereafter, while in the premises of the polling place or counting center, directly print thirty (30) copies of the election return. Once the prints have been produced, the poll clerk shall call the other members of the board to authenticate each print copy by closely comparing the same with the election return posted on the wall in the presence of the watchers and within view of the public. If the Board finds each print a faithful reproduction of the election return, all members thereof shall annotate and sign a certification to that effect on the bottom front of the print. "Each certified printed copy shall be placed in an envelope and distributed as herein provided. Designated recipients of the certified print copies may receive their copies at the polling place or counting center. "Immediately upon the accomplishment of the election returns for local positions, the second copy of the same shall be posted on a wall with sufficient lighting within the premises of the polling place. "The other copies of election returns for both national and local position shall be sealed in the presence of the 373

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided." "Any election return with a separately printed serial number or which bears a different serial number from that assigned to the particular polling place concerned shall not be canvassed. This is to be determined by the board of canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to the serial number of the election return assigned to the said voting precinct, unless the Commission shall order in writing for its canvassing, stating the reason for the variance in serial numbers." "If the signatures and/or thumbmarks of the members of the board of election inspectors or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the board of election inspectors concerned to complete the returns. "The citizen's arm is mandated to present for perusal its copy of the election return to the board of election canvassers upon the request of any interested candidate. "Any violation of this election or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881 "In addition, the following shall likewise be guilty of an election offense: "(a) Any Person who removes the election return posted on the wall, whether within or after the prescribed forty-eight (48) hours of posting, or defaces the same in any manner; "(b) Any person who simulates an actual election return, or a print or digital copy thereof; "(c) Any person who simulates the certification in a print of an election return; "(d) The chairman or any member of the board of election inspectors who, during the prescribe period of posting, removes the election return from the wall on which it had been posted other than for the purpose of immediately transferring it to a more suitable place; "(e) The chairman or any member of the board of election inspectors who signs or authenticates a print of the election return outside of the polling place; and

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(f) The chairman or any member of the board of election inspectors who signs or authenticates a print which bears an image different from the election return produced after counting and posted on the wall." SEC. 33. Section 27 of Republic Act No. 7166, as amended by Republic Act No. 8045 and Republic Act No. 8173, is hereby further amended to read as follows: "SEC. 27. Number of Copies of Election Returns and Their Distribution. - The board of election inspectors shall prepare in handwriting the election returns in their respective polling places, in the number of copies herein provided and in the form to be prescribed and provided by the Commission. "The copies of election returns shall be distributed by the chairman of the board of election inspectors as follows: "(a) In the election of president, vice-president, senators and members of the House of Representatives including the party-list representatives: "(1) The first copy shall be delivered to the city or municipal board of canvassers; "(2) The second copy to be posted on a wall within the premises of the polling place; "(3) "(4) The third copy, to the Congress, directed to the President of the Senate; The fourth copy, to the Commission;

"(5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law; "(6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; "(7) The seventh copy, to a citizens' arm authorized by the Commission to conduct an unofficial count: Provided, however, That the accreditation of the citizens' arm shall be subject to the provisions of Section 52(k) of Batas Pambansa Blg. 881; and "(8) The eight copy shall be deposited inside the compartment of the ballot box for valid ballots; and "(b) In the election of local officials:

"(1) The first copy shall be delivered to the city or municipal board of canvassers; 375

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(2) The second copy to be posted on a wall within the premises of the polling place; "(3) "(4) The third copy, to the Commission; The fourth copy, to the provincial board of canvassers;

"(5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law; "(6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; "(7) The seventh copy, to a citizens' arm authorized by the Commission to conduct an unofficial count: Provided, however, That the accreditation of the citizens' arm shall be subject to the provisions of Section 52(k) of Batas Pambansa Blg. 881; and "(8) The eighth copy shall be deposited inside the compartment of the ballot box for valid votes. "The copy of the election return posted on the wall shall be open for public viewing at any time of the day for forty-eight (48) hours following its posting. Any person may view or capture an image of the election return by means of any data capturing device such as, but not limited to, cameras at any time of the day for forty-eight (48) hours following its posting. After the prescribed period for posting, the chairman of the board of election inspectors shall collect the posted election returns and keep the same in his custody to be produced for image or data capturing as may be requested by any voter or for any lawful purpose as may be ordered by competent authority. "Except for those copies that are required to be delivered, copies of election returns may be claimed at the polling place. Any unclaimed copy shall be brought by the chairman of the board of election inspectors to the canvassing center where the recipients or their representatives may claim them. Copies still unclaimed at the canvassing center shall be deemed placed in the custody of the chairman of the board of election inspectors, who shall produce them when requested by the recipient or when ordered by a competent authority. "The thirty (30) certified print copies of the election return for national positions shall be distributed as follows: "(a) The first fourteen (14) copies shall be given to the fourteen (14) accredited major national parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 hereof; 376

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(b) The next three copies shall be given to the three accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 hereof; "(c) The next five copies shall be given to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; "(d) The next two copies shall be given to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; "(e) The next four copies to the major citizens' arms, including the accredited citizens' arm, and other non-partisan groups or organizations enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881; "(f) The next copy to be placed inside the compartment of the ballot box for valid ballots; and "(g) The last copy to the provincial board of canvassers."

"The certified print copies may be claimed at the polling place. Any unclaimed copy shall be brought by the chairman of the board of election inspectors to the canvassing center where the recipients or their representatives may claim them. Copies still unclaimed at the canvassing center shall be placed in the custody of the chairman of the board election inspectors, who shall produce them when requested by the recipient or when ordered by a competent authority. "Any provision of law to the contrary notwithstanding, any of the recipients of the print or digital copies of the election return may conduct an unofficial consolidation of votes and may announce the result to the public. "The Commission shall post its digital files in its website for the public to view or download at any time of the day. The Commission shall maintain the files at least three years from the date of posting. "Any violation of this section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881." SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as follows: "SEC. 26. Official Watchers. - Every registered political party or coalition of political parties, and every candidate shall each be entitled to one watcher in every polling place and canvassing center: Provided, That, candidates for the Sangguniang Panlalawigan, Sangguniang Panlunsod, or Sangguniang Bayan 377

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS belonging to the same slate or ticket shall collectively be entitled to only one watcher. "The dominant majority party and dominant minority party, which the Commission shall determine in accordance with law, shall each be entitled to one official watcher who shall be paid a fixed per diem of Four hundred pesos (P400.00). "There shall also be recognized six principal watchers, representing the six accredited major political parties excluding the dominant majority and minority parties, who shall be designated by the Commission upon nomination of the said parties. These political parties shall be determined by the Commission upon notice and hearing on the basis of the following circumstances: "(a) The established record of the said parties, coalition of groups that now composed them, taking into account, among other things, their showing in past elections; "(b) The number of incumbent elective officials belonging to them ninety (90) days before the date of election; "(c) Their identifiable political organizations and strengths as evidenced by their organized/chapters; "(d) The ability to fill a complete slate of candidates from the municipal level to the position of President; and "(e) Other analogous circumstances that may determine their relative organizations and strengths." SEC. 35. Section 206 of Batas Pambansa Blg. 881 is hereby amended to read as follows: "SEC. 206. Counting to be Public and Without Interruption. - As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. The Board may rearrange the physical set up of the polling place for the counting or perform any other activity with respect to the transition from voting [to] counting. However, it may do so only in the presence of the watchers and within close view of the public. At all times, the ballot boxes and all election documents and paraphernalia shall be within close view of the watchers and the public. "The board of election inspectors shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the Commission. 378

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "The Commission, in the interest of free, orderly, and honest election, may authorize the board of election inspectors to count the votes and to accomplish the election returns and other forms prescribed under this Code in any other place within a public building in the same municipality or city on account of imminent danger of widespread violence or similar causes of comparable magnitude: Provided, That the transfer shall been recommended in writing by the board of election inspectors by unanimous vote and endorsed in writing by the majority of watchers present: Provided, further, That the said public building shall not be located within the perimeter of or inside a military or police camp, reservation, headquarters, detachment or field office nor within the premises of a prison or detention bureau or any law enforcement or investigation agency. "Any violation of this section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881." SEC. 36. Section 18 of Republic Act No. 6646 is hereby repealed. SEC. 37. Section 30 of Republic Act No. 7166 is hereby amended to read as follows: "SEC. 30. Congress as the National Board of Canvassers for the Election of President and Vice President: The Commission en banc as the National Board of Canvassers for the election of senators: Determination of Authenticity and Due Execution of Certificates of Canvass. - Congress and the Commission en banc shall determine the authenticity and due execution of the certificate of canvass for president and vice-president and senators, respectively, as accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates for president and vice-president or senator, as the case may be, and their corresponding votes in words and their corresponding votes in words and in figures; (3) there [exists] no discrepancy in other authentic copies of the certificates of canvass or any of its supporting documents such as statement of votes by city/municipality/by precinct or discrepancy in the votes of any candidate in words and figures in the certificate; and (4) there exists no discrepancy in the votes of any candidate in words and figures in the certificate of canvass against the aggregate number of votes appearing in the election returns of precincts covered by the certificate of canvass: Provided, That certified print copies of election returns or certificates 379

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS of canvass may be used for the purpose of verifying the existence of the discrepancy. "When the certificate of canvass, duly certified by the board of canvass of each province, city [or] district, appears to be incomplete, the Senate President or the Chairman of the Commission, as the case may be, shall require the board of canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. "When it appears that any certificate of canvass or supporting statement of votes by city/municipality or by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated herein and may affect the result of the election, upon request of the presidential, vicepresidential or senatorial candidate concerned or his party, Congress or the Commission en banc, as the case may be, shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President or senator, count the votes as they appear in the copies of the election returns submitted to it. "In case of any discrepancy, incompleteness, erasure or alteration as mentioned above, the procedure on pre-proclamation controversies shall be adopted and applied as provided in Sections 17, 18, 19 and 20. "Any person who presents in evidence a simulated copy of an election return, certificate of canvass or statement of votes, or a printed copy of an election return, certificate of canvass or statement of votes bearing a simulated certification or a simulated image, shall be guilty of an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881." SEC. 38. Section 15 of Republic Act No. 7166 is hereby amended to read as follows: "SEC. 15. Pre-proclamation Cases in Elections for President, Vice-President, Senator, and Member of the House of Representatives. - For purposes of the elections for president, vice-president, senator, and member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be, except as provided for in Section 30 hereof. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it.

380

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with Section 19 hereof. "Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial board of canvassers or district board of canvassers in Metro Manila Area, shall be specifically noticed in the minutes of their respective proceedings." SEC. 39. Section 28 of Republic Act No. 7166 is hereby amended as follows: "SEC. 28. Canvassing by Provincial, City, District and Municipal Board of Canvassers. "a) The city or municipal of board of canvassers shall canvass the election returns of President, Vice President, Senator and Members of the House of Representatives and for elective provincial and city or municipal officials: Provided, That the returns for national positions shall be canvassed first. Upon completion of the canvass, it shall prepare the certificate of canvass for president, vice-president, senators and members the House of Representatives and elective provincial officials, announce the results of the election for national positions in the city or municipality, and thereafter, proclaim the elected city or municipal officials, as the case may be. "b) The city board of canvassers of cities comprising one or more legislative districts shall canvass the election returns for president, vice-president, senators, members of the House of Representatives and elective city officials: Provided, That the returns for national positions shall be canvassed first. Upon completion of the canvass, the board shall prepare the certificate of canvass of president, vice-president, and senators, announce the results of the election for national positions in the city, and thereafter, proclaim the elected members of the House of the Representatives and city officials. "c) "(1) In the Metro Manila Area such municipality comprising a legislative district shall have district board of canvassers which shall canvass the election returns for President, Vice-President, Senators, Members for the House of Representatives and elective municipal officials: Provided, That the returns for national positions shall be canvassed first. Upon completion of the canvass, it shall prepare the certificate of canvass for president, vice-president and senators, announce the results of the election for national positions in the municipality, and thereafter, proclaim the elected member of the House of the Representatives and municipal officials. "(2) Each component municipality in a legislative district in the Metro Manila Area shall have a municipal board of canvassers which shall canvass the election 381

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS returns for president, vice-president, senators, member of the House of Representatives and elective municipal officials: Provided, That the returns for national positions shall be canvassed first. Upon completion of the canvass, each shall prepare the certificate of canvass for president, vice-president, senators, and members of the House of the Representatives, announce the results of the election for national positions in the municipality, and thereafter, proclaim the elected municipal officials. "(3) The district board of canvassers of each legislative district comprising two municipalities in the Metro Manila Areas shall canvass the certificate of canvass for President, Vice-President, Senators and Members of the House of Representatives submitted by the municipal board of canvassers of the component municipalities. Upon completion of the canvass, it shall prepare a certificate of canvass for president, vice-president and senators, announce the results of the election for national positions in the district, and thereafter, proclaim the elected member of the House of the Representatives in the legislative district, "(d) The provincial board of canvassers shall canvass the certificate of canvass for president, vice-president, senators, and members of the House of Representatives and elective provincial officials as well as plebiscite results, if any plebiscite is conducted simultaneously with the same election, as submitted by the board of canvassers of municipalities and component cities: Provided, That the returns for national positions shall be canvassed first. Upon completion of the canvass, it shall prepare the certificate of canvass for president, vicepresident, and senators, announce the results of the election for national positions in the province, and thereafter, proclaim the elected member of the House of Representatives and provincial officials as well as the plebiscite results, if any. "In conducting the canvass of election returns or certificates of canvass, as the case may be, the board of canvassers in a municipality, city, district or province shall project each election return or certificate of canvass on a wall from which its contents shall be read in order that those present in the canvassing center may follow the progress of the canvassing process from beginning to end. The Commission may utilize the appropriate projection equipment for this purpose. "Immediately after the certificate of canvass for national positions is accomplished, the chairman of the Board of Canvassers shall announce the posting of the second copy thereof and its supporting statement of votes on a wall with sufficient lighting within the premises of the canvassing center. He shall then proceed to do the same in the presence of the other members of the board, the watchers and those present in the canvassing center. Without delay and when feasible, he shall capture images of the certificate of canvass and supporting statements of votes using a secured data capturing device and thereafter, while in the premises of the canvassing center, immediately print the data so captured in thirty (30) copies. The board of canvassers shall then 382

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS authenticate each printed copy, in the presence of watchers and within public view, by closely comparing the same with the certificate of canvass or statement of votes, as the case may be, posted on of the wall. If the board finds each printed copy a faithful reproduction of the certificate of canvass or statement of votes, all members thereof shall annotate and sign a certification to that effect on the bottom front of the printed copy. "Each certified printed copy shall be placed in an envelope and distributed as herein provided. Designated recipients of the certified printed copies may receive their copies at the canvassing center. "The chairman of the board shall transmit the digital files of the certificate of canvass and its supporting statement of votes using a secured transmission device with authentication features to the secured tabulation system of the Commission and to the systems of the other designated recipients as herein provided. "Any provision of law to the contrary notwithstanding, any of the recipients of the print or digital copies of the certificate of canvass and the supporting statements of votes may conduct an unofficial consolidation of votes and may announce the result thereof to the public. "Any violation of this section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881. "In addition, the following shall likewise be guilty of an election offense: "(a) Any person who removes the certificate of canvass posted on the wall, whether within or after the prescribed forty-eight (48) hours of posting, or defaces the same in any manner; "(b) Any person who simulates an actual certificates of canvass or statement of votes, or a print or digital copy thereof; "(c) Any person who simulates the certification of a certificate of canvass or statement of votes; "(d) The chairman or any member of the board of canvassers who, during the prescribed period of posting, removes the certificate of canvass or its supporting statement of votes from the wall on which they have been posted other than for the purpose of immediately transferring them to a more suitable place; "(e) The chairman or any member of the board of canvassers who signs or authenticates a print of the certificate of canvass or its supporting statement of votes outside of the polling place: and 383

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(f) The chairman or any member of the board of canvassers who signs or authenticates a print which bears an image different from the certificate of canvass or statement of votes produced after counting and posted on the wall." SEC. 40. Section 29 of Republic Act No. 7166 is hereby amended to read as follows: "SEC.29. Number of Copies of Certificates of Canvass and their Distribution. a) The certificate of canvass for president, vice-president, senators and members of the House of Representatives and elective provincial officials shall be prepared in seven copies by the city or municipal board of canvassers and distributed as follows: "(1) The first copy shall be delivered to the provincial board of canvassers for use in the canvass election results for president, vice-president, senators and members of the House of Representatives and elective provincial officials: "(2) The second copy shall be sent to the Commission;

"(3) The third copy shall be posted on a wall within the premises of the canvassing center; "(4) The fourth copy shall be kept by the Chairman of the Board; and

"(5) The fifth copy shall be given the citizens' arm designated by the Commission to conduct a media-based unofficial count, and the sixth and seventh copies shall be given to the representatives of two of the six major political parties in accordance with the voluntary agreement of the parties. If no such agreement is reached, the Commission shall decide which parties shall receive the copies of the certificate of the canvass on the basis of the criteria provided in Section 26 hereof. The parties receiving the certificates shall have the obligation to furnish the other parties with authentic copies thereof with the least possible delay. "b) The certificate of canvass for president, vice-president, senators shall be prepared in seven (7) copies by the city boards of canvassers of cities comprising one or more legislative districts, by provincial boards of canvassers and by district boards of canvassers in the Metro Manila Area, and distributed as follows: "(1) The first copy shall be sent to the Congress, directed to the President of the Senate for use in the canvass of election results for president and vicepresident; "(2) The second copy shall be sent to the Commission for use in the canvass of the election results for Senators; 384

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(3) The third copy shall be posted on a wall within the premises of the canvassing center; "(4) The fourth copy shall be kept by the Chairman of the Board; and

"(5) The fifth copy shall be given to the citizens' arm designated by the Commission to conduct a media-based unofficial count, and the sixth and seventh copies shall be given to the representatives of two of the six major political parties in accordance with the voluntary agreement of the parties. If no such agreement is reached, the Commission shall decide which parties shall receive the copies of the certificate of canvass on the basis of the criteria provided in Section 26 hereof. The parties receiving the certificates shall have the obligation to furnish the other parties with authentic copies thereof with the least possible delay. "The copy of the certificate of canvass posted on the wall shall be open for public viewing at any time of the day for forty-eight (48) hours following its posting. Any person may view or capture an image of the certificate of canvass. After the prescribed period for posting, the chairman of the board of canvassers shall collect the posted certificate of canvass and keep the same in his custody to be produced for image or data capturing as may be requested by any voter or for any lawful purpose as may be ordered competent authority. "Except for those copies that are required to be delivered, copies of certificates of canvass may be claimed at the canvassing center. Any unclaimed copy shall be deemed placed in the custody of the chairman of the board of canvassers, who shall produce them when requested by the recipient or when ordered by a competent authority. "The thirty (30) certified print copies of the certificate canvass for national positions shall be distributed as follows: "(a) The first fourteen (14) copies shall be given to the fourteen (14) accredited major national parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 hereof; "(b) The next three copies shall be given to the three accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies in the basis of criteria analogous to that provided in Section 26 hereof; "(c) The next five copies shall be given to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; 385

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(d) The next two copies shall be given to local broadcast or print media entitles as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; "(e) The next four copies to the major citizens' arms, including the accredited citizens' arm, and other non-partisan groups or organizations enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881; and (f) The last two copies to be kept in file by the chairman of the board of canvassers to be subsequently distributed as the national board of canvassers may direct. "The certified print copies may be claimed at the canvassing center. Any unclaimed copy shall be deemed place in the custody of the chairman of the board of canvassers, who shall produce them when requested by the recipient or when ordered by a competent authority. "The Commission shall post its digital files in its website for the public to view or download at any time of the day. The Commission shall maintain the files for at least three years from the date of posting. "Any violation of this section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881." SEC. 41. The first paragraph of Sec. 52 of Batas Pambansa Blg. 881 is hereby amended to read as follows: "Sec. 52. Powers and Functions of the Commission on Elections. - In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, except as otherwise provided herein and shall:"

SEC. 42. Section 27 (b) of Republic Act No. 6646 is hereby amended to read as follows: "Sec. 27. Election Offenses; Electoral Sabotage. - In additional to the prohibited acts and election offenses enumerated in Section 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense or a special election offense to be known as electoral sabotage: "(a) xxx

386

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS "(b) Any person or member of the board of election inspectors or board of canvassers who tampers, increases or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes: Provided, however, That when the tampering, increase or decrease of votes or the refusal to credit the correct votes and/or to deduct tampered votes to deduct tampered votes are perpetrated on a large scale or in substantial numbers, the same shall be considered, not as an ordinary election offense under Sections 261 and/or 262 of the Omnibus Election Code, but a special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment. "The act or offense committed shall fall under the category of electoral sabotage in any of the following instances; "(1) When the tampering, increase and/or decrease of votes perpetrated or the refusal to credit the correct votes or to deduct tampered votes, is/are committed in the election of a national elective office which is voted upon nationwide and the tampering, increase and/or decrease votes, refusal to credit the correct votes or to deduct tampered votes, shall adversely affect the results of the election to the said national office to the extent that losing candidate/s is/are made to appear the winner/s; "(2) Regardless of the elective office involved, when the tampering, increase and/or decrease of votes committed or the refusal to credit the correct votes or to deduct tampered votes perpetrated, is accomplished in a single election document or in the transposition of the figures/results from one election document to another and involved in the said tampering increase and/or decrease or refusal to credit correct votes or deduct tampered votes exceed five thousand (5,000) votes, and that the same adversely affects the true results of the election; "(3) Any and all other forms or tampering increase/s and/or decrease/s of votes perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes, where the total votes involved exceed ten thousand (10,000) votes; "Provided finally, That any and all either persons or individuals determined to be conspiracy or in connivance with the members of the BEIs or BOCs involved, shall be meted the same penalty of life imprisonment." SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follow: "SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the 387

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same." SEC. 44. Appropriations. - To carry out the provisions of this Act, the amount necessary for the automated system shall be charged against the Two billion six hundred million pesos (P2,600,000,000.00) modernization fund in the current year's appropriations of the Commission. Further, the amount necessary to carry out the manual system, at a maximum of Three billion pesos (P3,000,000,000) shall be charged against the current year's appropriation of the Commission. Thereafter, such sums as may be necessary for the continuous implementation of this Act shall be included in the annual General Appropriations Act. If the said funds shall not be fully utilized, the same shall continue to be appropriated for the electoral modernization as set forth in this Act and shall not revert to the General Fund. SEC. 45. Separability Clause. - If, for any reason, any section or provision of this Act or any part thereof, or the application of such section, provision or portion is declared invalid or unconstitutional, the remainder thereof shall not be affected by such declaration. SEC. 46. Repealing Clause. - All laws, presidential decrees, executive orders, rules and regulations or part thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 47. Effectivity. - This Act Shall take effect fifteen (15) days after its publication in a newspaper of general circulation.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS APPENDIX C R.A. 9006 AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES

Section 1. Short Title. - This Act shall be known as the "Fair Elections Act". Sec. 2. Declaration of Principles. - The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest. peaceful and credible elections. The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination. Sec. 3. Lawful Election Propaganda. - Election propaganda whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). For the purpose of this Act, lawful election propaganda shall include: 3.1 Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one-half inches in width and fourteen inches in length; 3.2 Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 3.3 Cloth, paper or cardboard posters whether framed, or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; 3.4 Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and 3.5 All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act. Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda. 4.1 Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper stickers, streamers, simple list of candidates or any published or printed political matter and any broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words "political advertisement paid for," followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. 4.2 If the broadcast is given free of charge by the radio or television station, it shall be identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. 4.3 Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written 390

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as provided in Subsection 6.3 hereof. Sec. 5. Election Surveys. 5.1 Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey"). 5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information: The name of the person, candidate, party or organization who commissioned or paid for the survey; The name of the person, polling firm or survey organization who conducted the survey; The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from which they were selected, and the specific questions asked; The margin of error of the survey;

For each question for which the margin of error is greater than that reported under paragraph (d), the margin of error for that question; and A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a written report regarding the survey in accordance with Subsection 5.3. 5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection, copying and verification by the COMELEC or by a registered political party or a bona fide candidate, or by any COMELEC391

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS accredited citizen's arm. A reasonable fee sufficient to cover the costs of inspection, copying and verification may be charged. 5.4 Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. (This provision has been ruled unconstitutional by the Supreme Court in SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION vs. COMMISSION ON ELECTIONS, GR No. 147571, 5 May 2001) 5.5 Exit polls may only be taken subject to the following requirements: Pollsters shall not conduct their surveys within fifty (50) meters from the poling place, whether said survey is taken in a home, dwelling place and other places; Pollsters shall wear distinctive clothing; Pollsters shall inform the voters that they may refuse to answer; and The result of the exit polls may be announced after the closing of the polls on election day, and must dearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend. Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC: 6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or other publications, during the campaign period. 6.2 Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation. For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party. 6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by the donor, the candidate concerned or by the duly authorized representative of the political party. 6.4 No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period. In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7l66 on election spending. The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including said candidate and/or political party in such program respecting, however, in all instances the right of said broadcast entities to air accounts of significant news or news worthy events and views on matters of public interest. 6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis. They shall recognize the duty to air the other side and the duty to correct substantive errors promptly.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 6.6 Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a candidate or political party shall not use his/her time or space to favor any candidate or political party. 6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited in a theater, television station or any public forum during the campaign period. 6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate shall likewise be publicly exhibited in a theater or any public forum during the campaign period. Sec. 7. Affirmative Action by the COMELEC. 7.1 Pursuant to Sections 90 and 92 of the Omnibus Election Code (Batas Pambansa Blg. 881), the COMELEC shall procure the print space upon payment of just compensation from at least three (3) national newspapers of general circulation wherein candidates for national office can announce their candidacies. Such space shall be allocated free of charge equally and impartially among all the candidates for national office on three (3) different calendar days: the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth week of the campaign period. 7.2 The COMELEC shall also procure free airtime from at least three (3) national television networks and three (3) national radio networks, which shall also be allocated free of charge equally and impartially among all candidates for national office. Such free time shall be allocated on three (3) different calendar days: the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth week of the campaign period. 394

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS 7.3 The COMELEC may require national television and radio networks to sponsor at least three (3) national debates among presidential candidates and at least one (1) national debate among vice presidential candidates. The debates among presidential candidates shall be scheduled on three (3) different calendar days: the first debate shall be scheduled within the first and second week of the campaign period; the second debate within the fifth and six week of the campaign period; and the third debate shall be scheduled within the tenth and eleventh week of the campaign period. The sponsoring television or radio network may sell airtime for commercials and advertisements to interested advertisers and sponsors. The COMELEC shall promulgate rules and regulations for the holding of such debates. Sec. 8. COMELEC Space and Time. - The COMELEC shall procure space in at least one (1) newspaper of general circulation and air time in at least one (1) major broadcasting station or entity in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "COMELEC Space": Provided, further, That in the absence of said broadcasting station or entity, broadcasting shall be done in any radio or television station in said province or city, which shall be known as "COMELEC Time". Said time shall be allocated to the COMELEC free of charge, while said space shall be allocated to the COMELEC upon payment of just compensation. The COMELEC time and space shall be utilized exclusively by the COMELEC for public information dissemination on election-related concerns. Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein candidates can post. display or exhibit election propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or property which shall be allocated equitably and impartially among the candidates. Sec. 10. Right to Reply. - All registered parties and bona fide candidates shall have the right to reply to charges published against them. The reply shall be given publicity by the newspaper, television and/or radio station which first 395

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement. Sec. 11. Rates for Political Propaganda. - During the election period, media outlets shall charge registered political parties and bona fide candidates a discounted rate of thirty percent (30%) for television, twenty percent (20%) for radio and ten percent (10%) for print over the average rates charged during the first three quarters of the calendar year preceding the elections. Section 12. Substitution of Candidates. - In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate of the same family name, this provision shall not apply. Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. The COMELEC shall promulgate and furnish all political parties and candidates and the mass media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881). Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through mass media. Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Bldg. 881). Section 14. Repealing Clause. - Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. Section 15. Separability Clause. - If any provision or part hereof is held invalid or unconstitutional, the remainder of this Act not otherwise affected shall remain in full force and effect. 396

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 16. Effectivity. - This Act shall take effect immediately upon its approval. Approved, 12 February 2001.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS APPENDIX D COMELEC RULES OF PROCEDURE Pursuant to Section 6 of Article IX-A and Section 3 of Article IX-C of the Constitution of the Republic of the Philippines and the powers vested in it by existing laws, the Commission on Elections hereby promulgates the following rules governing pleadings, practice and procedure before it or any of its offices:

PART I INTRODUCTORY PROVISIONS Rule 1 - Title and Construction Section 1. Title of the Rules. - These rules shall be known and cited as the Comelec Rules of Procedure. Section 2. Applicability. - These rules, except Part VI, shall apply to all actions and proceedings brought before the Commission. Part VI shall apply to election contests and quo warranto cases cognizable by courts of general jurisdiction. Section 3. Construction. - These rules shall be liberally construed in order to promote the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission. Section 4. Suspension of the Rules. - In the interest of justice and in order to obtain speedy disposition of all matters pending before the Commission, these rules or any portion thereof may be suspended by the Commission. Section 5. Meaning of Words. - Whenever used in these Rules, the following words or terms shall mean: (a) Commission - the Commission on Elections

(b) Division - a Division of the Commission on Elections (c) Chairman - the Chairman of the Commission on Elections 398

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (d) Commissioner - a Commissioner of the Commission on Elections (e) Member - the Chairman or a Commissioner (f) Ordinary Actions - shall refer to Election Protests, Quo warranto, and Appeals from decisions of courts in election protest cases (g) Special Actions - shall refer to Petitions to deny course to certificate of candidacy, to declare a candidate as a nuisance candidate, to disqualify a candidate or to postpone or suspend an election (h) Special Cases - shall refer to Pre-proclamation cases (i) Special Reliefs - shall refer to Certiorari, Prohibition, Mandamus and Contempt (j) Provisional Remedies - shall refer to injunction and/or restraining order (k) Special Proceedings - shall refer to annulment of permanent list of voters, registration of political parties and accreditation of citizens' arms of the Commission. PART II POWERS OF THE COMMISSION AND TRANSACTION OF BUSINESS Rule 2 - Powers of the Commission Section 1. Express Powers. - In the performance of its administrative, quasijudicial and judicial functions, the Commission shall exercise all such powers and functions as are expressly vested upon it by the Constitution and by law. Section 2. Implied Powers. - The Commission shall likewise exercise such powers as are implied in or are necessary to the effective exercise of its express powers.

Section 3. Inherent Powers. - When performing its constitutional or statutory functions, the Commission shall have inherent power to: (a) Preserve and enforce order in its immediate presence; (b) Enforce order in proceedings before it or before any of its offices or officials empowered to conduct investigation under its authority. 399

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (c) Compel obedience to its judgments, orders and processes; (d) Control its ministerial officers and all other persons in any manner connected with a case before it, and in every manner appertaining thereto; (e) Compel the attendance of persons to testify in a case pending before it; (f) Administer or cause to be administered oaths in a case pending before it, and in all other cases where it may be necessary in the exercise of its powers; (g) Amend and control its processes and orders so as to make them conformable to law and justice; (h) Authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restore, and supply deficiencies in its records and proceedings. Section 4. Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any suitable process or proceeding may be adopted. Section 5. Powers and Duties of the Chairman. - The powers and duties of the Chairman of the Commission when discharging his functions in actions or proceedings before the Commission are as follows: (a) To issue calls for the sessions of the Commission; (b) To preside over the sessions of the Commission; and to act as Presiding Commissioner of a Division when expressly authorized in these Rules;

(c) To designate any of the Commissioners to preside over sessions of the Commissions en banc in the event of his absence, disqualification or inhibition; (d) To preserve order and decorum during the session; (e) To decide all questions of order, subject to appeal to the Commission en banc; (f) To enforce orders, resolutions, and decisions of the Commission and the Divisions;

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (g) To sign interlocutory resolution, orders or rulings and temporary restraining orders of the Commission in cases not yet assigned to the Divisions; (h) To take such other measures as he may deem proper upon consultation with the other members of the Commission; and (i) To exercise such other powers as are vested upon him by law or by specific provisions of these Rules. Section 6. Powers and Duties of the Presiding Commissioner. - The powers and duties of the Presiding Commissioner of a Division when discharging its functions in cases pending before the Division shall be as follows: (a) To issue calls for the sessions of the Division; (b) To preside over the sessions of the Division; (c) To preserve order and decorum during the sessions of the Division; (d) To sign interlocutory resolutions, orders or rulings and temporary restraining orders in cases already assigned to the Division; (e) To decide all questions of order, subject to appeal to the full Division; and (d) To take such other measures as he may deem proper upon consultation with the other members of the Division. Rule 3 - How the Commission Transacts Business

Section 1. How Business is Transacted. - In the exercise of its Constitutional or statutory powers, functions, and duties, the Commission may sit en banc or in to Divisions. Section 2. The Commission En Banc. - The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of the Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the Members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc. Section 3. The Commission Sitting in Divisions. - The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt, and special proceedings except in accreditation of citizen's arms of the Commission. 401

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 4. Composition of a Division. - Each Division shall be composed of three Commissioners, one of whom shall be the Presiding Commissioner. The Commission en banc shall determine who shall compose a Division. Section 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. (b) When sitting in Division, two (2) Members of a Division shall constitute a quorum to transact business. The concurrence of at least two (2) Members of a Division shall be necessary to reach a decision, resolution, order or ruling. If this required number is not obtained, the case shall be automatically elevated to the Commission en banc for decision or resolution. (c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. Section 6. Change in Composition; Substitution. - The composition of a Division may be changed by the Chairman of the Commission whenever necessary, Provided that no change shall be made more than once every three (3) months; Provided Moreover, that notice thereof in writing shall be furnished the parties in cases pending before the Division concerned.

Whenever there is a vacancy in a Division because a member inhibits himself, is absent, or is disqualified from sitting in a case, or when a division has only two (2) regular members, the Chairman may appoint a substitute Commissioner, or the Chairman himself may sit as substitute or third member, and in that event he shall preside. Section 7. Sessions. - The Commission or the Divisions shall hold sessions on such days and time as it may specify at the session hall of the Commission, or at such other places in the Philippines as it may designate. Section 8. Assignment of Cases. - The assignment of cases of the two (2) Divisions herein constituted shall be done strictly through raffle to be conducted regularly by the Chairman of the Commission in the presence of at least a majority of the Commissioner; Provided, That the assignment of cases shall be made as evenly as possible. Section 9. Consolidation of Cases. - When an action or proceeding involves a question of law and fact which is similar to or common with that of another 402

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS action or proceeding, the same may be consolidated with the action or proceeding bearing the lower docket number. Rule 4 - Disqualification and Inhibition Section 1. Disqualification or Inhibition of Members. - (a) No Member shall sit in any case in which he or his spouse or child is related to any party within the sixth civil degree or consanguinity or affinity, or to the counsel of any of the parties within the fourth civil degree of consanguinity or affinity, or in which he has publicly expressed prejudgment as may be shown by convincing proof, or in which the subject thereof is a decision promulgated by him while previously serving as presiding judge of an inferior court, without the written consent of all the parties, signed by them and entered in the records of the case; Provided, that no Member shall be the "ponente" of an en banc decision/resolution on a motion to reconsider a decision/resolution written by him in a Division. (b) If it be claimed that a Member is disqualified from sitting as above provided, the party raising the issue may, in writing, file his objection with the Commission, stating the grounds therefor. The member concerned shall either continue to participate in the hearing or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision thereon shall forthwith be made in writing and filed with the Commission for proper notation and with the records of the case. No appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competency until after final judgment in the case. (c) A Member may, in the exercise of his sound discretion, inhibit himself from sitting in a case for just or valid reasons other than those mentioned above. Section 2. Disqualification Resulting in Lack of Quorum. - If the disqualification or inhibition of a Member should result in a lack of quorum in the Commission sitting en banc, the Presiding Justice of the Court of Appeals, upon request of the Commission, shall designate a Justice of said Court to sit in said case for the purpose of hearing and rendering a decision thereon. PART III INITIATION OF ACTIONS OR PROCEEDINGS BEFORE THE COMMISSION Rule 5. - Parties to Actions or Proceedings Section 1. Applicability. - the Rules under Part III shall apply to all actions and proceedings hereinafter provided for. Section 2. Who may be Parties. - Only natural or juridical persons or entities duly authorized by law, such as a voter, a candidate, or registered political parties, organization or coalition of political parties, including parties or 403

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS organizations under the party-list system, and any such person permitted by these Rules to bring an action or proceeding may be parties in any action or proceeding before the Commission. Section 3. Parties in Interest. - All actions filed with the Commissioner must be prosecuted and defended in the name of the real party in interest. Section 4. Designation of Parties. - A person qualified to be a party under Sec. 2 of this Rule seeking relief shall be referred to as Petitioner or Protestant. Any person who claims interest adverse to the petitioner or protestant or against whom a claim or interest is directed by the petitioner or protestant, shall be referred to as the Respondent or Protestee. Section 5. Class Suit. - When the subject matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the Commission, one or more may sue or defend for the benefit of all. But in such case, the Commission shall make sure that the parties actually before it are sufficiently numerous and representative so that all interests concerned are fully protected. Any party in interest shall have a right to intervene to protect his individual interest. Section 6. Compulsory Joinder of Indispensable Parties. - Parties in interest without whom no final determination of an action can be had shall be joined either as petitioner or protestant or respondent or protestee. Rule 6 - Commencement of Action or Proceedings Section 1. Commencement of Action or Proceedings by Parties. - Any natural or juridical person authorized by these rules to initiate any action or proceeding shall file with the Commission a protest or petition alleging therein his personal circumstances as well as those of the protestee or respondent, the jurisdictional facts, and a concise statement of the ultimate facts constituting his cause or causes of action and specifying the relief sought. He may add a general prayer for such further or other relief as may be deemed just or equitable. Section 2. Commencement of Action by the Commission. - In cases where the Commission is authorized to initiate motu proprio an action or proceeding, the Commission shall issue an order for hearing reciting therein the purpose for which the hearing is being called for and a concise statement of facts giving rise thereto. Copies of such order shall be served upon persons or registered political parties, organizations or coalition of political parties known to have an interest in the matter or who may be affected thereby, and published in a newspaper of general circulation in the Philippines at least ten (10) days before the scheduled date of hearing. Rule 7 - Pleadings 404

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 1. Filing of Pleadings. - Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees. Section 2. How Filed. - The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with.

Section 3. Form of Pleadings, etc. - (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino. (b) Protests or petitions in ordinary actions, special actions, special cases, special reliefs, provisional remedies, and special proceedings, as well as counterprotests, counter-petitions, interventions, motions for reconsideration, and appeals from rulings of board of canvassers shall be verified. All answers shall be verified. (c) A pleading shall be verified only by an affidavit stating that the person verifying the same has read the pleading and that the allegations therein are true of his own knowledge. Verifications based on "information or belief" or upon "knowledge", "information" or "belief" shall be deemed insufficient. (d) Each pleading shall contain a captain setting forth the name of the Commission, the title of the case, the docket number and the designation of the pleading. When an action or proceeding has been assigned to a Division, the caption shall set forth the name of the Division. Section 4. Docket and Assignment of Numbers. - Upon the Filing of a protest or petition, the Clerk of Court of the Commission concerned shall docket the same and assign to it a docket number. The numbering must be consecutive according to the date it is filed, must bear the year, and prefixed as follows: (a) EPC - for Ordinary Actions (b) EAC - for Appealed Cases (c) SPA - for Special Actions (d) SPC - for Special Cases 405

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (e) SPR - for Special Reliefs (f) SPP - for Special Proceedings (g) EO - for Election Offenses

Section 5. Non-acceptance of Pleading. - No pleading shall be accepted by the Commission unless it conforms to the formal requirement provided herein. Rule 8 - Intervention Section 1. When Proper and Who may be Permitted to Intervene. - Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion, to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. Section 2. Motion for Intervention. - A person desiring to intervene shall file a motion for leave of the Commission or the Division with notice upon all the parties to the action. Section 3. Discretion of Commission. - In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice and adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate action or proceeding. Section 4. Protest/Petition or Answer in Intervention. - The intervention shall be made by protest or petition filed and served in due form, and may be answered as if it were an original protest or petition; but where intervenor unites with the protestee or respondent in resisting the claims of protestant or petitioner, the intervention may be made in the form of an answer to the protest or petition. Rule 9 - Amended and Supplemental Pleadings Section 1. When Amendments Allowed as a Matter of Right. - A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within five days after it is served. Section 2. Amendments Only by Leave. - After the case is set for hearing, substantial amendments may be made only upon leave of the Commission or the 406

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Division, as the case may be. Such leave may be refused if it appears to the Commission or the Division that the motion was made with intent to delay the action or that the cause of action or defense is substantially altered. Orders of the Commission or the Division upon the matters provided in this section shall be made upon motion duly filed, and after the adverse the party has been notified and afforded an opportunity to be heard. Section 3. Matters Subject of Supplemental Pleadings. - Upon motion of a party the Commission or a Division, as the case may be, may, upon notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. If the Commission or the Division deems it advisable that the adverse party should plead thereto, it shall so order, specifying the time therefor. Rule 10 - Periods for Pleading Section 1. Title to Answer. - Unless otherwise provided in these Rules, (a) In ordinary actions, special reliefs, and special proceedings, the answer must be filed within five (5) days from service of summons and a copy of the petition; and (b) In special actions and special cases, the answer must be filed within three (3) days from service of summon and a copy of the petition. Section 2. Answer to Amended Protest or Petition. - If the protest or petition is amended, the time fixed for the filing and service of the answer shall, unless otherwise ordered, run from receipt of the notice of the order admitting the amended protest or petition or from service of such amended protest or petition. An answer filed before the amendment shall stand as an answer to the amended protest or petition, unless a new one is filed within five (5) days from notice or service as herein provided. Section 3. Answer to Counter-Protest or Counterclaim. - A counter-protest, or a counterclaim when appropriate, must be filed within five (5) days from the date of service thereof upon the protestant or petitioner. Section 4. Period of Intervene and Time to Answer Intervention. - Whenever intervention is allowed the same must be filed within five (5) days from receipt of the order permitting the intervention, unless a different period is fixed by the Commission or Division. Section 5. Reply. - Unless otherwise provided in these Rules, a reply may be filed within five (5) days from receipt of the answer.

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 6. Extension of Time to Plead. - Unless otherwise provided in these Rules, the time to plead may be extended by the Commission upon motion and on such terms as it may deem just. Rule 11 - Motions Section 1. Motions Defined. - Every applications for an order not included in a decision of the Commission or a Division may be called a motion. Section 2. Motions Must be in Writing. - All motions shall be in writing, except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial. Section 3. Contents of Motions. - A motion shall state the order sought to be obtained and the grounds upon which it is based. Section 4. Notice. - Notice of a motion shall be served by the movant to all parties concerned, at least three (3) days before the hearing thereof, together with a copy of the motion. For good cause shown, the motion may be heard on shorter notice, especially on matters which the Commission or the Division may dispose of on its own motion. The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. Section 5. Proof of Service. - No motion shall be acted upon by the Commission without proof of service of notice thereof, except when the Commission or a Division is satisfied that the rights of the adverse party or parties are not affected. Section 6. No oral Arguments for Motions. - No oral argument shall be heard in support of motions unless, for special reasons, the Commission or a Division directs otherwise. Section 7. Motion Day. - The first hours of the session of the Commission en banc or of the division shall be devoted to hearings of motions. Section 8. Omnibus Motion. - A motion assailing a pleading or a proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

Rule 12 - Service and Filing of Pleadings and Other Papers

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NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 1. Filing with the Commission. - The Filing of pleadings, appearances, motions, notices, and other papers with the Commission as required by these rules shall be made by filing them personally or through a duly authorized representative with the appropriate Clerk of Court of the Commission, or by registered mail except in a special action to declare a candidate as a nuisance candidate. If filed personally or by a duly authorized representative, the Clerk of Court shall stamp on the pleading the date and hour of filing. It filed by registered mail, the date of the mailing of motions, pleadings, or other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment or deposit with the Commission. The envelope shall be attached to the records of the case. Section 2. Papers to be Filed and Served. - Orders required to be served, pleadings subsequent to a petition or protest, written motions other than those which may be heard ex-parte, and written notices, appearances, demand or offer of judgment or similar papers shall be filed with the Commission and served upon the parties affected thereby. If any of the parties has appeared by an attorney or attorneys, service shall be made upon his attorney or upon any of his attorneys, unless service upon the party himself is ordered by the Commission or Division. Where one attorney appears for several parties, he shall be entitled to only one copy of any paper served upon him by the opposite side. Section 3. Mode, Completion and Proof of Service. - Service of pleadings, motions, notices, orders or judgment and other papers, the completeness thereof, and proof of such service shall be made in the manner prescribed by the Rules of Court of the Philippines. Rule 13 - Prohibited Pleadings Section 1. What Pleadings are not Allowed. - The following pleadings are not allowed: (a) motion to dismiss; (b) motion for a bill of particulars; (c) motion for extension of time to file memorandum or brief;

(d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases; (e) motion for re-opening or re-hearing of a case; (f) reply in special actions and in special cases; and 409

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (g) supplemental pleadings in special actions and in special cases. PART IV DISPOSITION OF ACTIONS OR PROCEEDINGS Rule 14 - Summons Section 1. Clerk to Issue Summons. - Unless otherwise provided herein, the Clerk of Court of the Commission or the division concerned shall issue the corresponding summons to the protestee or respondent within three (3) days following the filing of a protest or petition in ordinary actions except appeals from decisions of courts in election protest cases, in special actions, special cases, special reliefs, and in special proceedings. Section 2. Contents. - Summons shall be directed to the protestee or respondent, signed by the Clerk of Court of the Commission or the division concerned under the seal of the Commission, and shall contain (a) the name of the Commission or its Division and the names of the parties; (b) a direction that the protestee or respondent shall answer within the time fixed by these Rules. A copy of the protest or petition shall be attached to the original and to each copy of the summons. Section 3. Issuance of Other Summons. - If a summons is returned without being served on any of the protestees or respondents, or if it has been lost, the Clerk of Court concerned, on demand of the protestant or petitioner, may issue another summons as the case may require, in the same form as the original. Section 4. By Whom Summons May be Served. - The summons may be served by personal service or by mail. Personal service may be made by a bailiff of the Commission or the division or upon request of the Commission or a Division, by the sheriff of any court in the place where the parties to be served reside; or for special reasons, by any person especially authorized by the Commission or a Division.

Section 5. Return. - When the service has been completed by personal service, the server shall give notice thereof, by registered mail, to the protestant or petitioner or his counsel and shall return the summons to the Clerk of Court concerned who issued it, accompanied with the proof of service. Section 6. Proof of Service. - Proof of service of summons shall be made in the manner provided for in the Rules of Court in the Philippines. 410

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Rule 15 - Pre-Trial Section 1. Purpose of Pre-Trial. - At the discretion of the Commission or the Division, the parties and their attorneys may be required to appear before it for a pre-trial conference to consider: (a) The simplification of issues; (b) The possibility of obtaining admission of facts and of documents to avoid unnecessary proof; (c) The limitation of the number of witnesses; and (d) Such other matters as may be aid in the prompt disposition of the action or proceeding. This rule shall not apply to election protest cases filed before the Commission on Elections. In such cases, the parties shall submit, to form part of the record of the case, a position paper which summarizes their legal positions. Rule 16 - Subpoena Section 1. Subpoena Ad Testificandum or Subpoena Duces Tecum. - Subpoena ad testificandum or subpoena duces tecum may be issued by the Commission or the Division motu propio, or upon request of the parties in any case. Section 2. By Whom Issued. - The subpoena shall be heard by the Chairman of the Commission in cases heard en banc, or by the Presiding Commissioner of the Division concerned.

Section 3. Form and Contents. - A subpoena shall be signed by the Clerk of Court concerned. It shall state the name of the Commission or the Division issuing it and the title of the action; it shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which may appear prima facie relevant. Section 4. Authority of Officials of the Commission to Issue Subpoena. - Officials of the Commission authorized under these Rules to hear cases and receive evidence or conduct preliminary investigation shall have the authority to issue subpoena in connection with such cases. Rule 17 - Hearings 411

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 1. Notice of Hearing. - After the issues have been joined, the case shall be set for hearing and the parties, thru counsel, shall be served, personally or by registered mail, giving sufficient time for the notice thereof to be received by the parties not less than three (3) days before the date set. Whenever necessary, telegraphic notices shall be sent simultaneously with the formal notice of hearing. Section 2. Order of Hearing. - Unless the Commission or the Division, as the case may be, for special reasons, directs otherwise, the order of hearing shall be as follows: (a) The petitioner or protestant shall present evidence on his part; (b) The protestant-in-intervention, if any, shall present evidence on his part; (c) The respondent or protestee shall then offer evidence in support of his defense or counter-protest, if any; (d) The parties may then respectively offer rebutting evidence only, unless the Commission or the Division, as the case may be, for good reasons, in the furtherance of justice, permits them to offer evidence upon their original case; (e) When the evidence is concluded, unless the parties agree to submit the case without arguments, the parties or their counsel may be allowed to argue, subject to such limitation of time as the Commission or the Division may prescribe;

(f) In lieu of oral arguments, the parties may be allowed to submit their respective memoranda within a period of three (3) days. Section 3. Oral Testimony Dispensed with Where Proceedings are Summary. When the proceedings are authorized to be summary, in lieu of oral testimonies, the parties may, after due notice, be required to submit their position paper together with affidavits, counter-affidavits and other documentary evidence; and when there is a need for clarification of certain matters, at the discretion of the Commission or the Division, the parties may be allowed to cross-examine the affiants. This provision shall likewise apply to cases where the hearing and reception of evidence are delegated by the Commission or the Division to any of its officials; and when there is a need for clarification of certain matters, the hearing officer may schedule a hearing to propound clarificatory questions, observing for that purpose Section 6 of Rule 34 of these Rules. Section 4. Period to Terminate Hearing When Delegated. - The hearing and reception of evidence, when delegated by the Commission or a Division to any of 412

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS its officials, shall be completed within three (3) days. The official concerned shall submit his findings, report and recommendation to the Commission or the Division within three (3) days from such completion. Section 5. Agreement on Facts. - The parties to any action may agree in writing on the facts involved in the case. Rule 18 - Decisions Section 1. Procedure in Making Decisions. - The conclusions of the Commission in any case submitted to it for decision en banc or in Division shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion of the Commission or the Division and a certification to this effect signed by the Chairman or the Presiding Commissioner, as the case may be, shall be incorporated in the decision. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. Every decision shall express therein clearly and distinctly the facts and the law on which it is based.

Section 2. Minute Resolution. - No minute resolution resolving a case shall be rendered if evidence has been adduced and received. Section 3. When Extended Opinion Reserved. - When in a given resolution or decision the writing of an extended opinion is reserved, the extended opinion shall be released within fifteen (15) days after the promulgation of the resolution. Section 4. Period to Appeal or File Motion for Reconsideration When Extended Opinion is Reserved. - If an extended opinion is reserved in a decision or resolution, the period to file a petition for certiorari with the Supreme Court or to file a motion for reconsideration shall begin to run only from the date the aggrieved party received a copy of the extended opinion. Section 5. Promulgation. - The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram. Section 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. 413

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 7. Period to Decide by the Commission En Banc. - Any case or matter submitted to or heard by the Commission en banc shall be decided within thirty (30) days from the date it is seemed submitted for decision or resolution, except a motion for reconsideration of a decision or resolution of a Division in Special Actions and Special Cases which shall be decided within fifteen (15) days from the date the case or matter is deemed submitted for decision, unless otherwise provided by law. Section 8. Period to Decide by a Division. - Any case or matter heard by a Division shall be decided within ten (10) days from the date it is deemed submitted for decision or resolution, except in Special Actions and Special Cases which shall be decided or resolved within five (5) days from the date they are deemed submitted for decision or resolution, unless otherwise provided by law

Section 9. When Deemed Submitted for Decision. - (a) A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum as required in these Rules or by the Commission en banc or by a Division. (b) However, if the hearing and reception of evidence are delegated to any of its officials, the case or matter shall be deemed submitted for decision as of the date of the receipt of the findings, report and recommendation of the official so delegated. Section 10. Duty to Certify to the President. - In election protests and quo warranto cases, if the decision shall be that none of the parties has been legally elected, the Commission shall certify such decision to the President of the Philippines. Section 11. Duty to Notify Other Agencies of the Government. - (a) As soon as a decision in an election protest within the original jurisdiction of the Commission or in a quo warranto case becomes final and executory, notices thereof shall be sent to the President, the Secretary of Local Government, the Chairman of the Commission on Audit, and the Secretary of the Sangguniang Pampook in the case of regional officials, the Secretary of the Sangguniang Panlalawigan in the case of provincial officials, and the Secretary of the Sangguniang Panglungsod in the case of city officials. (b) As soon as a decision or resolution in an appealed election case becomes final and executory, notices thereof shall be sent to the President, the Secretary of Local Government, the Chairman of the Commission on Audit, and the Secretary of the Sangguniang Bayan in the case of municipal officials and the Secretary of the Sangguniang Barangay in the case of barangay officials.

414

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 12. Dissemination of Decision in a Petition to Deny Due Course to or Cancel a Certificate of Candidacy or to Declare a Candidate as a Nuisance Candidate. - The Commission shall, within twenty-four (24) hours from the promulgation of a decision in petitions to deny due course to or cancel a certificate of candidacy, declare a candidate a nuisance candidate or disqualify a candidate, disseminate its decision, or the decision of the Supreme Court if the Commission's decision is brought by the aggrieved party to said Court, to the election registrars concerned, boards of election inspectors, and the general public in the political subdivision concerned through the fastest means available.

Section 13. Finality of Decisions or Resolutions. - (a) In ordinary actions, special proceedings, provisional remedies and special reliefs a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special Cases a decision or resolutions of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation. Rule 19 - Motions for Reconsideration Section 1. Grounds of Motion for Reconsideration. - A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling; or that the said decision, order or ruling is contrary to law. Section 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not proforma, suspends the execution or implementation of the decision, resolution, order or ruling. Section 3. Form and Contents of Motion for Reconsideration. - The motion shall be verified and shall point out specifically the findings or conclusions of the decision, resolution, order or ruling which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings or conclusions. 415

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 4. Effect of Motion for Reconsideration on Period to Appeal. - A motion to reconsider a decision, resolution, order or ruling when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court. Section 5. How Motion for Reconsideration Disposed Of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Section 6. Duty of Clerk of Court of Commission to Calendar Motion for Resolution. - The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof. PART V PARTICULAR ACTIONS OR PROCEEDINGS A. ORDINARY ACTIONS Rule 20 - Election Protests Section 1. Filing of Election Protest. - A verified petition contesting the election of any regional, provincial or city official shall be filed by any candidate who duly filed a certificate of candidacy and has been voted for the same office, within ten (10) days after the proclamation of the results of the election. Each contest shall refer exclusively to one office, but contests for offices of the Sangguniang Pampook, Sangguniang Panlalawigan or Sangguniang Panglungsod may be consolidated in a single case. Section 2. Contents of Answer. - The answer must specify the nature of the defense and may set forth special and affirmative defenses. Section 3. Counter-Protest or Counterclaim. - The protestee may incorporate in his answer a counter-protest or a counterclaim. Section 4. General Denial. - If no answer is filed to the protest or counter-protest, a general denial shall be deemed to have been entered. Section 5. Protestant's Reply. - The protestant may file a reply. Section 6. Revision of Ballots. - When the allegations in a protest or counterprotest so warrant, or whenever in the opinion of the Commission or Division the interest of justice so demands, it shall immediately order the ballot boxes 416

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS containing ballots and their keys, list of voters with voting records, book of voters, and other documents used in the election to be brought before the Commission, and shall order the revision of the ballots.

Section 7. Composition and Compensation of Revision Committee. - For the above purpose, the Commission may constitute a committee on the revision of ballots which shall be composed of the following with the corresponding compensation per ballot box contested: 1. A Chairman, who shall be a lawyer of the Commission - P150.00 2. One Revisor/Alternate for the Protestant - P100.00 3. One Revisor/Alternate for the Protestee - P100.00 Other Support Staff: 4. Clerk - P50.00 5. Typist - P50.00 6. Ballot Box Custodian - P50.00 Section 8. Revision Expenses. - The compensation of the members and staff shall be deducted from the cash deposit of the protestant or the protestee as the case may be, and other incidental expenses such as supplies and transportation in the supplies and transportation in the gathering of the protested ballot boxes. Section 9. Venue of the Revision. - The revision of ballots shall be made in the Office of the Clerk of Court concerned or at such places as the Commission or Division shall designate and shall be completed within three (3) months from the date of the order; unless otherwise directed by the Commission. Section 10. Custody of Election Records and Paraphernalia. - The ballot boxes containing ballots and their keys, the list of voters with the voting records, book of voters, and other documents used in the election, shall be kept and held secure in a place to be designated by the Commission, in the care and custody of the ballot box custodian of the Electoral Contests Adjudication Department and under the authority of the Chairman. Section 11. Report of Committee on Revision. - The committee on revision of ballots shall make a statement of the condition in which the ballot boxes and their contents were found upon the opening of the same, and shall classify the ballots so examined and set forth clearly any objection that may have been 417

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS offered to each ballot in the report to be submitted by them. Disputed ballots shall be numbered consecutively for purposes of identification in the presence and under the direction of the committee chairman. After examination, the ballots and other election documents shall be returned to their respective boxes under lock but disputed ballots shall be placed in a separate envelope duly sealed and signed by the members of the committee and then returned to the box. For purposes of making said report, which shall be submitted in twelve (12) legible copies, only the prescribed form prepared by the Commission shall be used. Section 12. Prohibited Access. - During the revision of ballots, no person other than the Members of the Commission, members of the committee on revision of ballots, the Clerk of Court concerned or the latter's authorized representatives and the parties, their attorney or their duly authorized representatives shall have access to the place where said revision is taking place. Section 13. Book of Voters as Evidence. - In election contests, the book of voters shall be conclusive in regard to the question as to who has the right to vote in said election. Rule 21 - Quo warranto Section 1. Petition for Quo Warranto. - Any voter contesting the election of any regional, provincial or city official on the ground of ineligibility or of disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contests Adjudication Department. Section 2. Period Within Which to File. - A petition for quo warranto may be filed within ten (10) days from the date the respondent is proclaimed. Rule 22 - Appeals from Decisions of Courts in Election Protest Cases Section 1. Caption and Title of Appealed Cases. - In all election contests involving the elections, returns, and qualifications of municipal or barangay officials, the party interposing the appeal shall be called the "Appellant" and the adverse party the "Appellee", but the title of the case shall remain as it was in the court of origin.

Section 2. Attorneys. - The attorneys of the parties in the courts shall be considered as their respective attorneys in the Commission, unless otherwise manifested. Section 3. Notice of Appeal. - Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of 418

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS appeal, and serve a copy thereof upon the attorney of record of the adverse party. Section 4. Immediate Transmittal of Records of the Case. - The Clerk of the court concerned shall, within fifteen (15) days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department the complete records of the case, together with all the evidence, including the original and three (3) copies of the transcript of stenographic notes of the proceedings. Section 5. Filing of Briefs. - The Clerk of Court concerned, upon receipt of the complete records of the case, shall notify the appellant or his counsel to file with the Electoral Contests Adjudication Department within thirty (30) days from receipt of such notice, ten (10) legible copies of his brief with proof of service thereof upon the appellee. Within thirty (30) days from receipt of the brief of the appellant, the appellee shall file ten (10) legible copies of his brief with proof of service thereof upon the appellant. Section 6. Contents of Brief. - The brief shall have the same contents as those provided under Sections 16 and 17, Rule 46 of the Rules of Court. A copy of the decision appealed from shall be attached as an appendix to the appellant's brief. Section 7. Reply Brief. - The appellant may file a reply brief within twenty (20) days from receipt of appellee's brief. Section 8. When Case May Be Set for Oral Argument. - Upon the filing of appellant's reply brief, or after the expiration of the time for its filing, the case shall be deemed submitted for decision, unless within fifteen (15) days therefrom, any party asks, and for special reason, is thereafter granted permission for oral argument, or unless the Commission motu proprio requires it. Oral arguments shall be confined to such points as the Commission may specify in an order setting the date therefor. The Commission may admit memoranda in lieu of oral argument.

Section 9. Grounds for Dismissal of Appeal. - The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds: (a) Failure of the appellant to pay the correct appeal fee; (b) Failure of the appellant to file copies of his brief within the time provided by these rules; (c) Want of specific assignment of errors in the appellant's brief; and 419

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (d) Failure to file notice of appeal within the prescribed period. Section 10. Withdrawal of Appeal. - An appeal may be withdrawn as a matter of right at any time before the filing of appellee's brief. After the filing of the appellee's brief, the withdrawal may be allowed at the discretion of the Commission. B. SPECIAL ACTIONS Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy Section 1. Grounds for Denial of Certificate of Candidacy. - A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition or political parties on the exclusive ground that any material representation contained therein as required by law is false. Section 2. Period to File Petition. - The petition must be filed within five (5) days following the last day for the filing of certificate of candidacy. Section 3. Summary Proceeding. - The petition shall be heard summarily after due notice. Section 4. Delegation of Reception of Evidence. - The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and to receive evidence. Rule 24 - Proceedings Against Nuisance Candidates

Section 1. Grounds. - Any candidate for any elective office who filed his certificate of candidacy to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or who by other acts or circumstances is clearly demonstrated to have no bona fide intention to run for the office for which the certificate of candidacy has been filed, thus preventing a faithful determination of the true will of the electorate, may be declared a nuisance candidate and his certificate of candidacy may be denied due course or may be cancelled. Section 2. Who May File Petition to Declare a Candidate as Nuisance Candidate. Any registered candidate for the same elective office may file with the Law Department of the Commission a petition to declare a candidate as a nuisance candidate. 420

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The Commission may, at any time before the election, motu proprio refuse to give due course to or cancel a Certificate of Candidacy of any candidate on any of the grounds enumerated under Section 1 of this Rule or when the substitute Certificate of Candidacy is not a proper case of substitution under Section 77 of the Omnibus Election Code. Section 3. Period to File the Petition. - The petition shall be filed personally or through an authorized representative, within five (5) days from the last day for the filing of certificates of candidacy. Section 4. Summary Proceeding. - The petition shall be heard summarily after due notice. Section 5. Delegation of Reception of Evidence. - The hearing and reception of evidence may be delegated in like manner as provided in Sec. 4 of the preceding Rule. Rule 25 - Disqualification of Candidates Section 1. Grounds for Disqualification. - Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. Section 2. Who May File Petition for Disqualification. - Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law.

Section 3. Period to File Petition. - The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. Section 4. Summary Proceeding. - The petition shall be heard summarily after due notice. Section 5. Effect of Petition if Unresolved Before Completion of Canvass. - If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election. Rule 26 - Postponement or Suspension of Elections 421

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 1. Postponement of Election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the holding of a free, orderly, honest, peaceful and credible election should become impossible in any political subdivision, the Commission, motu proprio, or upon a verified petition by any interested party, and after due notice and hearing whereby all interested parties are afforded equal opportunity to be heard, may postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended, or which resulted in a failure of election, but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Section 2. Failure of Election. - If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any precinct has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Section 3. Motu Proprio Postponement. - When the Commission acts motu proprio, notices of hearing must be sent to all interested parties by the fastest means available. Section 4. When Based Upon a Verified Petition. - Unless a shorter period is deemed necessary by circumstances, within twenty-four (24) hours from the filing of the petition, the Clerk of Court concerned shall forthwith serve notices to all interested parties, indicating therein the date of hearing, through the fastest means available. Section 5. Time to File Opposition. - Unless a shorter period is deemed necessary by the circumstances, within two (2) days from receipt of the notice of hearing, any interested party may file an opposition with the Law Department of the Commission. 422

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 6. Summary Proceeding. - The hearing of the case shall be summary in nature. Section 7. Delegation of Reception of Evidence. - The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and to receive evidence. Section 8. Determination of Cessation of Cause. - The determination of the cessation of the cause of the postponement or suspension of election or failure of election falls within the exclusive prerogative of the Commission. C. IN SPECIAL CASES Rule 27 - Pre-Proclamation Controversies

Section 1. Jurisdiction of the Commission in Pre-Proclamation Controversies. The Commission has exclusive jurisdiction in pre-proclamation controversies arising from national, regional or local election. A pre-proclamation controversy may be raised by any candidate or by any registered political party, organization, or coalition of political parties before the board of canvassers or directly with the Commission. Section 2. Pre-Proclamation Controversies: How Commenced. - Questions affecting the composition or proceedings of the Board of Canvassers or correction of manifest errors may be initiated in the Board or directly with the Commission. However, matters raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of the election returns, and the Certificate of Canvass shall be brought in the first instance before the board of canvassers concerned only. Section 3. Summary Hearing and Disposition of Pre-Proclamation Controversies. - All pre-proclamation controversies shall be heard summarily after due notice provided that pre-proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission en banc within seven (7) days from receipt thereof, provided further, that said decision shall be executory after the lapse of seven (7) days from receipt thereof by the boards of canvassers concerned except petitions filed Under Sec. 5 hereof which 423

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS shall be immediately executory upon receipt by the boards of canvassers concerned. Section 4. Issues that May Be Raised in the Pre-Proclamation Controversies. The following are the proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns, or the certificate of canvass in appropriate cases, are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof;

(c) The election returns or certificate of canvass were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns or certificates of canvass in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. (e) Correction of manifest errors. Section 5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. - (a) The following pre-proclamation controversies may be filed directly with the Commission: 1) When the issue involves the illegal composition or proceedings of the board of canvassers as when a majority or all of the members do not hold legal appointments or are in fact usurpers; or when the canvassing has been a mere ceremony that was pre-determined and manipulated to result in nothing but a sham canvassing as where there was convergence of circumstances of precipitate canvassing, terrorism, lack of sufficient notice to the members of the board of canvassers and disregard of manifest irregularities on the face of the questioned returns or certificates of canvass in appropriate cases; 2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more than once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of canvass were tabulated separately, (3) there has been a mistake in the copying of the figures into the statement of votes or into the certificate of 424

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS canvass, or (4) so-called returns from non-existent precincts were included in the canvass, and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made. (b) If the petition involves the illegal composition or proceedings of the board under subparagraph (1) of paragraph (a) above, it must be filed immediately when the board begins to act as such, or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation and most implead all candidates who may be adversely affected thereby. (c) Upon the docketing of such petition, the Clerk of Court concerned shall forthwith issue summons, with a copy of the petition, to the respondents. (d) The Clerk of Court concerned shall immediately set the petition for hearing. (e) The petition shall be heard and decided by the Commission en banc. (f) When the petition involves the composition or proceedings of the board, the board of canvassers shall not commence, proceed or resume the canvass unless otherwise ordered by the Commission. Section 6. Rights of Political Parties and Candidates Before the Board of Canvassers in Pre-Proclamation Cases. - (a) Any registered political party, organization, or coalition of political parties, through their representatives, and any candidate, has the right to be present and to counsel during the canvass of election returns, or certificates of canvass in appropriate cases. Only one counsel may argue for each registered political party, organization, or coalition of political parties, or candidate. Counsel shall have the right to examine the election returns or certificates of canvass being canvassed without touching them, make their observations thereon, and file their challenges and objections thereto. No dilatory action shall be allowed by the board of canvassers which may impose time limits for oral argument. (b) Any registered political party, organization, or coalition of political parties, through their representatives and any candidate is entitled to obtain a copy of 425

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS the Statement of Votes per precinct and a copy of the certificate of canvass duly signed by all the members of the board of canvassers.

Section 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. - (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying of election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate, political party, organization or coalition or political parties, after due notice and hearing, correct the errors committed. (b) The order for correction must be made in writing and must be promulgated. (c) Any candidate, political party, organization or coalition of political parties aggrieved by said order may appeal therefrom to the Commission within twenty-four (24) hours from the promulgation. (d) Once an appeal is made, the board of canvassers shall not proclaim the winning candidates, unless their votes are not affected by the appeal. (e) The appeal must implead as respondents the Board of Canvassers concerned and all parties who may be adversely affected thereby. (f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue summons, together with a copy of the appeal, to the respondents. (g) The Clerk of Court concerned shall immediately set the appeal for hearing. (h) The appeal shall be heard and decided by the Commission en banc. Section 8. Procedure Before the Board of Canvassers When Composition or Proceedings of Board are Contested. - (a) When the composition or proceeding of the board of canvassers, are contested the board of canvassers shall, within twenty-four (24) hours, make a ruling thereon with notice to the contestant who, if adversely affected, may appeal the matter to the Commission within three (3) days after the ruling with proper notice to the board of canvassers. The Commission en banc shall summarily decide the case within five (5) days from the filing thereof. 426

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

(b) Upon receipt of such appeal, the Clerk of Court concerned shall immediately set the case for hearing, with due notice to the parties, by the Commission en banc. (c) During the pendency of the appeal, the board of canvassers shall immediately suspend the canvass until the Commission orders the continuation or resumption thereof. Section 9. Procedure Before Board of Canvassers When Inclusion or Exclusion of Election Returns are Contested. - (a) Any candidate, registered political party, organization or coalition or political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds provided in Section 3 of this Rule or by law, shall present or submit their oral objection to the Chairman of the Board of Canvassers, stating the grounds therefor, at the time the contested returns is opened or presented for inclusion or exclusion. (b) The objections must be faithfully recorded, noted and entered in the minutes of the canvassing indicating therein the date and hour the objection was made. (c) The board shall automatically defer the canvass of the contested returns, after recording separately the results therein, and shall proceed to canvass the other returns which are not contested. (d) Simultaneously with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objections, which shall be attached to the form for written objections. With the same period of twenty-four hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The Board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms. The evidence attached to the objection or opposition, submitted by the parties, shall be immediately and formally admitted into the records of the Board by the Chairman of the board of canvassers affixing his signature at the back of each and every page thereof.

427

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (e) Upon receipt of the evidence, the Board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The Board shall enter its ruling on the prescribed form and authenticate the same by the signature of its members. (f) Any party adversely affected by the ruling of the Board shall immediately inform the Board if he intends to appeal said ruling. The Board shall enter said information in the Minutes of Canvass, set aside the returns and proceed to consider the other returns. (g) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the Board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the Board a written and verified Notice to Appeal; and within an inextendible period of five (5) days thereafter, an appeal may be taken to the Commission. Immediately upon receipt of the Notice of Appeal, the Board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, furnishing the parties with the copies of the report. (h) On the basis of the records and evidence elevated to it by the Board, the Commission en banc shall decide summarily the appeal within seven (7) days from the receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the Board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed. The decision of the Commission en banc shall be executory after the lapse of seven (7) days from receipt thereof by the boards of canvassers concerned. (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission in writing after the later shall have ruled on the objections brought to it on appeal by the aggrieved party. Any proclamation in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the uncontested results of the elections.

(j) If in the course of the canvass the boards' copy of the election returns is missing, the board shall, by messenger or otherwise obtain such missing returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or a certified true copy of said election returns issued by the Commission. 428

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (k) If it clearly appears that some requisites in form or data had been omitted in the election returns, the Board of Canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for said board to effect the correction: provided that in case the omission in the election return is that of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, that if the votes omitted in the returns cannot be ascertained by other means except by recounting the votes, the board of canvassers shall immediately make a report thereon to the Commission and the latter, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the broad of election inspectors to count the votes for the candidates whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. (l) When the board of canvassers determines that the election returns submitted to it appear to be tampered with, altered or falsified after they have left the hands of the board of inspectors, or otherwise not authentic or were prepared by the board of election inspectors under duress, force, or intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers shall use the other copies of said election returns, and if necessary, the copy inside the ballot box which, upon prior authority of the Commission, may be retrieve. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers shall immediately bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicates that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved, shall order the board of inspectors concerned to recount the votes of the candidates affected and when proper, to prepare a new return which shall then be used by the board of canvassers as basis of the canvass. (m) In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a precinct or discrepancies in the votes of any candidate in words and figures in the same returns, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected 429

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the precinct solely for the purpose of determining the true result of the count of votes of the candidates concerned. (n) When the evidence submitted to the board of canvassers indicate a failure of elections in a precinct or precincts and the number of registered voters therein would affect the final result of the election, the board of canvassers shall bring the matter to the attention of the Commission. Until this issue is resolved the board of canvassers shall suspend the proclamation of any candidate. Section 10. Appeals from Rulings of Board of Canvassers. - (a) A party aggrieved by a ruling of the Board of Canvassers shall, within forty-eight hours from receipt of a copy of the ruling of the Board of Canvassers, file with the Board a written and verified Notice of Appeal; and within an inextendible period of five (5) days, he shall file his appeal to the Commission. Upon receipt of the appeal, the Commission en banc shall immediately determine whether the issues related therein are grounds proper for preproclamation controversy. If the issues raised are not among the grounds enumerated under Sec. 3 of this Rule, the same shall be dismissed, otherwise it shall be raffled to any of the two (2) divisions of the Commission which shall dispose of it summarily within three (3) days from the period of referral by the Commission en banc.

(b) The appeal filed with the Commission shall be docketed by the Clerk of Court concerned. (c) The answer/opposition shall be verified. (d) The Division to which the case is assigned shall immediately set the case for hearing. (e) At the hearing, no new evidence shall be received, unless for good reasons shown, it is clearly and convincingly established that the appellant was deprived of due process by the board of canvassers. (f) If the appellant is allowed to present new evidence, oral testimonies may be dispensed with, and in lieu thereof, the parties may be required to submit their position papers, together with affidavits, counter-affidavits, and other 430

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS documentary evidence, after which the case shall be deemed submitted for decision. Section 11. Period Within Which Boards of Canvassers Must Complete Canvass. Subject to reasonable exceptions, board of canvassers must complete their canvass within thirty-six (36) hours in cities not comprising at least one legislative district, and in municipalities; within forty-eight (48) hours in cities comprising one or more legislative district and within seventy-two (72) hours in the provinces. Section 12. Submission of the Minutes of the Proceedings of the Board. - Within 15 days from the termination of canvass, the secretary of the board of canvassers shall submit to the Law Department of the Commission on Elections in Manila by registered mail a certified copy of the minutes of the proceedings of the board, together with its written rulings on objections to the composition or proceedings of the board of canvassers, to the inclusion or exclusion of election returns or to correction of tabulation, and any evidence offered by the parties, and shall notify by telegram the said department of the date and the manner of transmittal of the minutes. D. SPECIAL RELIEFS Rule 28 - Certiorari, Prohibition and Mandamus

Sec. 1. When Available. - In aid of its appellate jurisdiction in election cases before courts of general jurisdiction relating to the elections, returns and qualifications of elective Municipal officials, and before courts of limited jurisdiction in cases relating to the elections, returns and qualifications of elective barangay officials, the Commission en banc may hear and decide petitions for certiorari, prohibition or mandamus. Section 2. Petition for Certiorari or Prohibition. - When any court or judge hearing election cases has acted without or in excess of its or his jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a petition for certiorari or prohibition with the Commission alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such court or judge, or commanding it or him to desist from further proceeding with the action or matter specified therein, as the case may be.

431

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with all pleadings and documents relevant and pertinent thereto. Section 3. Petition for Mandamus. - When a court or judge in an election case unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from his office in relation to such case and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a petition with the Commission alleging the facts with certainty and praying that judgment be rendered commanding the respondent immediately or at some other specified time to do the act required to be done to protect the rights of the petitioner and to pay the damages sustained by the petitioner by reason of the acts complained of. Section 4. Duty of Clerk of Court of the Commission. - Upon the filing of the petition, the Clerk of Court concerned shall calendar the case for en banc exparte hearing of the Commission to determine if it is sufficient in form and substance.

Section 5. Order to Answer. - If the Commission en banc shall determine that the petition is sufficient in form and substance, it shall issue an order requiring the respondent to answer the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondent in such manner as the Commission may direct, together with a copy of the petition. Section 6. Proceedings After Answer. - Once an answer is filed, or the time for its filing has expired, the Commission may order the proceedings complained of to be forthwith certified for review and shall hear the case, and if after such hearing the Commission finds that the allegations are true, it shall render judgment for such relief prayed as the petitioner is entitled to, with or without costs, as justice requires. Rule 29 - Contempt Section 1. Direct Contempt Punished Summarily. - A person guilty of misbehavior in the presence of or so near the Commission or any of its Divisions as to obstruct or interrupt the proceedings before it or them, including disrespect toward the Commission or Division, offensive personalities toward others or refusal to be sworn or to answer as a witness, or to subscribe to an affidavit or deposition when lawfully required to do so, may be summarily adjudged in direct contempt by the Commission or any of its Division and punished by a fine not exceeding two hundred (P200.00) pesos or imprisonment 432

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS not exceeding ten (10) days, or both, at the discretion of the Commission or Division. Section 2. Indirect Contempt. - After charge in writing has been filed with the Commission or Division, as the case may be, and an opportunity given to the respondent to be heard by himself or counsel, a person guilty of the following acts may be punished for indirect contempt: (a) Misbehavior of the responsible officer of the Commission in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, judgment or command of the Commission or any of its Divisions, or injunction or restraining order granted by it;

(c) Any abuse of or any unlawful interference with the process or proceedings of the Commission or any of its Divisions not constituting direct contempt under Section 1 of this Rules; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice by the Commission or any of its Divisions; (e) Assuming to be an attorney and acting as such without authority; and (f) Failure to obey a subpoena duly served. Section 3. Penalty for Indirect Contempt. - If adjudged guilt, the accused may be punished by a fine not exceeding one thousand (P1,000.00) pesos or imprisonment for not more than six (6) months, or both, at the discretion of the Commission or Division. Section 4. Warrant of Arrest on a Witness Who Fails to Attend. - Any provision of these Rules to the contrary notwithstanding, in case of failure of a witness to attend despite the issuance of a valid subpoena, the Commission or any of its Divisions, upon proof of service of the subpoena to said witness, may issue a warrant of arrest against said witness and direct that he be brought before the Commission or any of its Divisions where his attendance is required. E. PROVISIONAL REMEDIES Rule 30 - Injunction

433

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 1. Preliminary Injunction. - The Commission or any of its Divisions may grant preliminary injunction in any ordinary action, special action, special case, or special relief pending before it. Section 2. Grounds for Issuance of Preliminary Injunction. - A preliminary injunction may be granted at any time after the commencement of an action or proceeding and before judgment when it is established that: (a) The petitioner or protestant is entitled to the relief demanded and the whole or part of such relief consists in restraining the commission or continuance of the acts complained of, or in the performance of an act or acts, either for a limited period or perpetually; asia dc

(b) The commission or continuance of some act complained of during the pendency of the action or the non-performance thereof would work injustice to the petitioner or protestant; (c) The respondent or protestee is doing, threatens, or is about to do, or is procuring to be done, some act in violation of petitioner's/protestant's rights respecting the subject of the action, and tending to render the judgment ineffectual. Section 3. Grant of Injunction Discretionary. - The grant of the preliminary injunction is entirely left to the sound discretion of the Commission or its Divisions. Section 4. Bond for Preliminary Injunction. - No writ of preliminary injunction shall be issued unless the applicant shall file a bond, in an amount to be fixed by the Commission or the Division concerned, to the effect that the petitioner/protestant will pay to such party all damages which the latter may sustain by reason of the injunction if the Commission or the Division concerned shall finally decide that the petitioner/protestant was not entitled thereto. Section 5. Preliminary Injunction Not Granted Without Notice; Issuance of Restraining Order. - No preliminary injunction shall be granted without notice to the adverse party. If it shall appear from the facts shown by affidavits or the verified petition that great or irreparable injury would result to the applicant before the matter can be heard on notice, the Commission or any Division to which the application for preliminary injunction was made, may issue a restraining order to be effective only for a period of twenty (20) days from date of its issuance. Within the said twenty-day period, the Commission or the Division as the case may be, must cause an order to be served on the respondent 434

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS requiring him to show cause, at a specified time and place, why the injunction should not be granted, and determine within the same period whether or not the preliminary injunction shall be granted and shall accordingly issue the corresponding order. In the event that the application for preliminary injunction is denied, the restraining order is deemed automatically vacated. F. SPECIAL PROCEEDINGS Rule 31 - Annulment of Permanent List of Voters

Section 1. Grounds. - Any book of voters not prepared in accordance with the provisions of law, or the preparation of which has been effected with fraud, bribery, forgery, impersonation, intimidation, force, or any other similar irregularity, or which list is statistically improbable, may be annulled by the Commission. Section 2. Petition to Annul. - Any voter, election registrar, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to annul a permanent list of voters. Section 3. Notice of Hearing. - Within three days from the filing of the petition, the Clerk of Court concerned shall make a report of the petition of the Commission which shall determine either to give it due course or to deny the same. If the Commission shall decide to give it due course, an Order to that effect, fixing the date of hearing, shall be published in a newspaper of general circulation in the province or city concerned once a week for two consecutive weeks, the last of which shall not be less than ten days prior to the date of hearing. Copies of the order shall likewise be furnished to all registered political parties, organization or coalition or political parties in the province or city concerned. Expenses for the publication and notices shall be borne by the petitioner, which as preliminary estimated, shall be deposited with the Commission. If the petitioner is an Election Registrar the expenses for publication shall be borne by the Commission. Section 4. Time to File Opposition. - On or before the date set for the hearing, any interested party may file a verified opposition to the petition. Section 5. Summary Proceedings. - The petition may be heard summarily. Section 6. Delegation of Hearing and Reception of Evidence. - The hearing and reception of evidence may be delegated by the Commission to any of its officials who are members of the Philippine Bar. 435

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 7. Prohibition of Execution of Decision. - Any provision of these Rules to the contrary notwithstanding, a decision to annul a book of voters shall not be executed within sixty (60) days before an election. Rule 32 - Registration of Political Parties or Organization

Section 1. Petition for Registration. - Any political party, organization or coalition of political parties seeking registration pursuant to Section 2 (5), Subdivision C of Article IX of the Constitution shall file with the Law Department of the Commission a petition duly verified by its President and Secretary General, or any official duly authorized to do so under its Constitution and Bylaws; Section 2. Contents of Petition. - The petition for registration shall state the following: (1) Full name of the political party, organization or coalition of political parties; (2) The principal headquarters and post office address for election purposes, including its branches and divisions, if any; (3) The date and place of its organization; (4) The date and manner of election or selection of its officers; (5) The names and addresses of its organizers and officers, Executive Committee members, Directorate, or Party Convention delegates, if any; (6) The extent of its constituency; (7) Its program of government; (8) That it is not a religious sect or denomination; (9) That it shall not pursue its goals through violence or other unlawful means; (10) That it shall uphold and adhere to the Constitution and shall obey all laws and legal orders promulgated by duly constituted authorities; (11) That it is not supported by, nor does it accept financial contribution from any foreign government or their agencies; and (12) Other information that may be material and relevant to the petition.

436

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 3. Other Requirements. - The petitioner shall attach to the petition for registration ten (10) copies of its constitution and by-laws, party platform, organizational papers, declarations of political creed or code of political ethics and such other documents of similar or equivalent character.

Section 4. Verification. - Before taking action on the petition, the Commission shall first verify, through its filed offices, the status and capacity of the petitioner and the veracity of the allegations in the petition and its enclosures. Not later than fifteen (15) days from notice of the Commission's instruction, the field office concerned shall submit its written report, in ten (10) copies, together with supporting documents or records, if any. Section 5. Notice of Hearing. - Upon receipt of the reports from its field offices, the Commission shall immediately set the petition for hearing and shall send notices to the petitioner and other parties concerned. Section 6. Publication of Petition and notice of Hearing. - On the day following the receipt of the notice of hearing, the petitioner shall cause the publication of the petition, together with the notice of hearing, in three (3) daily newspaper of general circulation, notifying in writing the Commission of such action. Section 7. Certificate of Registration. - A certificate of registration shall be issued by the Commission upon approval of the petition, which shall be displayed in the main office and in all chapters of the petitioner. Section 8. Cancellation of Registration. - Upon verified complaint of any interested party, or motu proprio by the Commission, the registration of any political party, coalition of political parties or organization under the party-list system may be cancelled after due notice and hearing on the following grounds: a) Acceptance by the political party, coalition of political parties, or organizations or any of its candidates, of financial contributions from foreign governments and/or their agencies for activities related to elections; b) Violation of laws, rules or regulations relating to elections, plebiscites, referenda, or initiative; c) Untruthful statements in its petition for registration; d) The said political party, coalition of political parties or organization has become a religious sect or denomination, is pursuing its goals thru violence or other unlawful means, is refusing to adhere to or uphold the Constitution of the Philippines, or is receiving support from any foreign government, and 437

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS

e) Failure to comply with applicable laws, rules or regulations of the Commission. f) Failure to field official candidates in the last two proceeding elections or failure of their candidates to obtain at least five (5) per centum of the votes cast in the last two preceding elections. Rule 33 - Accreditation of Citizens' Arms of the Commission Section 1. Who May Be Accredited as Citizens' Arms of the Commission. - Any bona fide non partisan group, association or organization from the civic, youth, professional, educational, business or labor sectors with indentifiable leadership, membership and structure, and with demonstrated capacity to promote the public interest and assist the Commission in the performance of its functions and activities as mandated by the Constitution and by law, may be accredited as citizens' arms of the Commission. Section 2. Petition to be Accredited. - The group, association or organization mentioned in Section 1 hereof may file a petition for accreditation duly verified by its President, Chairman of the Board of Directors, or any of its duly authorized officer. Section 3. Contents of the Petition. - The petition shall state the following: (a) The constituency to which petitioner seeks accreditation; (b) That it is not supporting any candidate, political party, organization or coalition of political parties, in the constituency where it seeks accreditation; (c) Nature of its membership (whether civic, youth etc.); names of its officers or organizers, location of principal office or place of business and an assurance of its capability to undertake a coordinated operation and activity to assist the Commission; (d) That it shall submit itself to the direct and immediate control and supervision and comply with the orders of the Commission in the performance of its specific functions and activities provided by law, and such other functions and activities provided by law, and such other functions and activities which the Commission may assign;

438

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (e) That it shall strictly remain non-partisan and impartial during the registration and election periods; (f) That it is not supported by or under the influence of any foreign government or any of its agencies or instrumentalities; or of any foreigner, whether natural or juridical person; (g) That it shall not solicit or receive, directly or indirectly, any contribution or aid of whatever form or nature from any foreign government, or any of its agencies or instrumentalities, or from any foreigner, a natural or juridical person; (h) That it does not seek to achieve its objectives, goals or programs through violence or other unlawful means, nor aim to propagate any ideology opposed to the principles of a republican and democratic government; and (i) That it undertakes to police its ranks and prevent infiltration by persons or groups of persons who may, directly or indirectly, destroy its character of nonpartisanship and impartially. Section 4. Notice of Hearing. - Upon the filing of the petition, the Commission en banc shall immediately set it for hearing. The Commission may, if it deems necessary, order the publication of the petition in a newspaper of general circulation at the expense of the petitioner. Section 5. Opposition. - Any person, group, association or organization, political party or coalition of political parties possessing relevant information or evidence against the petitioner may oppose its accreditation by filing a verified opposition. Notwithstanding the absence of any opposition, the Commission may motu proprio require the petitioner to present evidence to support its petition. Section 6. Decision. - The decision of the Commission granting the petition may provide conditions to be strictly complied with by the petitioner.

Section 7. Certificate of Accreditation. - If the decision is for the accreditation of the petitioner, the Commission shall issue a certificate of accreditation containing the following: (a) The name of the group or organization; (b) The constituency to which it is accredited; and 439

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (c) The political exercise for which it is accredited. Section 8. Submission of Names and Addresses of Local Representatives. - After its accreditation, the petitioner shall submit to the Election Registrars in the constituency where it is accredited, the names and addresses of its local representatives who shall act as non-partisan watchers and substitute watchers therein during the entire electoral exercise. Section 9. Appointment of Watchers by Election Registrars. - Unless the impartiality or non-partisanship of the members concerned is questioned in writing, the Election Registrar shall extend the corresponding appointments to such members as poll watchers stating therein the precincts to which they are assigned. The members so appointed shall have the same duties, functions, and rights as watchers of registered political parties, organization or coalition of political parties. Section 10. Revocation of Accreditation. - The accreditation of any group, association or organization as Citizens' Army may be revoked by the Commission after notice and hearing, whenever it shows or acts with partiality in any political issue or to any political party, organization or coalition of political parties, or has performed acts in excess of its duties and functions as provided by law, or has failed to comply with the conditions imposed upon it in the decision granting accreditation. Section 11. Expiration of Accreditation. - The accreditation shall automatically lapse at the end of the election period of the political exercise for which the petitioner was accredited as citizens' arm. G. ELECTION OFFENSES Rule 34 - Prosecution of Election Offenses

Section 1. Authority of the Commission to Prosecute Election Offenses. - The Commission shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. Section 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. - The Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, 440

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS or which may be indorsed to them by the Commission or its duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn any time by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes that successful prosecution of the case can be done by the Commission. Section 3. Initiation of Complaint. - Initiation of complaint for election offenses may be done motu proprio by the Commission, or upon written complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the partylist system or any accredited citizens arms of the Commission. Section 4. Form of Complaint and Where to File. - (a) When not initiated motu proprio by the Commission, the complaint must be verified and supported by affidavits and/or any other evidence. Motu proprio complaints may be signed by the Chairman of the Commission, or the Director of the Law Department upon direction of the Chairman, and need not be verified; (b) The complaint shall be filed with the Law Department of the Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal. If filed with any of the latter three (3) officials, investigation thereof may be delegated to any of their assistants. (c) If filed with the Regional Election Directors or Provincial Election Supervisors, said officials shall immediately furnish the Director of the Law Department a copy of the complaint and the supporting documents, and inform the latter of the action taken thereon.1avvphi1

Section 5. Referral for Preliminary Investigation. - if the complaint is initiated motu proprio by the Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law Department for investigation. Upon direction of the Chairman of the Commission, the preliminary investigation may be delegated to any lawyer of said Department, or to any of the Regional Election Directors or Provincial Election Supervisors, or any lawyer of the Commission . Section 6. Conduct of Preliminary Investigation. - (a) If on the basis of the complaint, affidavits and the supporting evidence, the investigating officer finds no ground to continue with the inquiry, he shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Section 8(c) of this Rule. 441

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt within which to submit counter-affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant. (b) Such counter-affidavits and other supporting evidence submitted by the respondent shall be furnished by him to the complainant. (c) If the respondent cannot be subpoenaed, or if subpoenaed, doe not submit counter-affidavits within the ten day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (d) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (e) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 7. Presumption of Existence of Probable Cause. - A complaint initiated motu propio by the Commission is presumed to be based on sufficient probable cause and the investigating officer must forthwith issue the subpoena mentioned in the immediately preceding section. Section 8. Duty of Investigating Officer. - The preliminary investigation must be terminated within twenty (20) days after receipt of the counter-affidavits and other evidence of the respondents, and resolution thereof shall be made within five (5) days thereafter. (a) If the investigating officer finds no cause to hold the respondent for trial, he shall recommend dismissal of the complaint. (b) If the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution, and the corresponding information wherein he shall certify under oath that he has examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and 442

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. (c) In either case, the investigating officer shall, within five (5) days from the rendition of his recommendation, forward the records of the case to: 1) The Director of the Law Department of the Commission in cases investigated by any of the Commission lawyers or filed personnel, and 2) The State Prosecutor, Provincial Fiscal or City Fiscal, as the case may be, pursuant to the continuing authority provided for in Section 2 of this Rule. Section 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records. - (a) Within ten (10) days from receipt of the records stated in paragraph (c) of the immediately preceding section, the State Prosecutor, Provincial or City Fiscal shall take appropriate action thereon, immediately informing the parties of said action. (b) In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same shall be included in the agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an information in court against the respondent/s, the Director of the Law Department shall prepare and sign the information for immediate filing with the appropriate court. (c) In all other cases, if the recommendation to dismiss or the resolution to file the case in court is approved by State Prosecutor, Provincial or City Fiscal, they shall likewise approve the Information prepared and immediately cause its filing with the proper court. (d) If the recommendation to dismiss is reversed on the ground that a probable cause exists, the State Prosecutor, or the Provincial or City Fiscal, may, by himself prepare and file the corresponding information against the respondent or direct any of his assistants to do so without conducting another preliminary investigation. Section 10. Appeals from the Action of the State Prosecution, Provincial or City Fiscal. - Appeals from the resolution of the State Prosecutor, or Provincial or City Fiscal on the recommendation or resolution of investigating officers may be made only to the Commission within ten (10) days from receipt of the resolution of said officials, provided, however that this shall not divest the Commission of 443

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS its power to motu proprio review, revise, modify or reverse the resolution of the chief state prosecutor and/or provincial/city prosecutors. The decision of the Commission on said appeals shall be immediately executory and final. Section 11. Duty of State Prosecutor, Provincial or City Fiscal to Render Reports. - The State Prosecutor, Provincial or City Fiscal shall, within five (5) days from the rendition of their resolution on recommendation or resolution of investigating officers, make a written report thereof to the Commission. They shall likewise submit a monthly report on the status of cases filed with and/or prosecuted by them or any of their assistants pursuant to the authority granted them under Section 2 of this Rule. Section 12. Private Prosecutor. - The appearance of a private prosecutor shall be allowed in cases where private rights involving recovery of civil liability are involved.

PART VI PROVISIONS GOVERNING ELECTION CONTESTS AND QUO WARRANTO CASES BEFORE TRIAL COURT Rule 35 - Election Contests Before Courts of General Jurisdiction. Section 1. Original Jurisdiction of Regional Trial Courts. - Regional trial courts shall have exclusive original jurisdiction over contests relating to the elections, returns and qualifications involving elective municipal officials. Section 2. Filing of Election Contests. - A petition contesting the election of any municipal official shall be filed with the proper Regional Trial Court or mailed at the post office as registered matter addressed to said Court, together with six (6) legible copies thereof, by any candidate for the same office who has duly filed a certificate of candidacy and who was voted in the election. Each contest shall refer exclusively to one office, but contests for offices of the Sangguniang Bayan may be consolidated in one case. Section 3. Period to File Petition. - The petition shall be filed within ten (10) days following the date of proclamation of the results of the election. 444

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 4. Designation of Parties. - The party bringing the action shall be designated as the Protestant, and the party against whom the action is brought shall be designated as the Protestee. Section 5. Duty of Clerk of Court to Issue Notice and Serve Copy of Petition. - It shall be the duty of the Clerk of Court of the trial court to serve notice and a copy of the petition by means of summons upon each respondent within five (5) days after the filing thereof. Section 6. Petition to be Verified. - All petitions shall be verified by the parties filing them or their attorneys. Any subsequent pleading based on facts which ought to be proved shall likewise be verified. Section 7. Answer, Reply, Counter-Protest and Protest in Intervention. - (a) Within five (5) days after receipt of notice of the filing of the petition and a copy of the petition, the respondent shall file his answer thereto specifying the nature of his defense, and serve a copy thereof upon the protestant. The answer shall deal only with the election in the precincts which are covered by the allegations of the protest.

(b) Should the protestee desire to impugn the votes received by the protestant in other precincts, he shall file a counter-protest within the same period fixed for the filing of the answer, serving a copy thereof upon the protestant by registered mail or by personal delivery. In such a case, the counter-protest shall be verified. (c) The protestant shall answer the counter-protest within five (5) days after notice. (d) Within five (5) days from the filing of the protest, any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a verified petition in intervention, which shall be substantiated within the same proceeding. The protestant or protestee shall answer the protest-in-intervention within five (5) days after notice. (e) If no answer shall be filed to the protest, counter-protest or protest-inintervention within the time limits respectively fixed, a general denial shall be deemed to have been entered. Section 8. Substantial and Formal Amendments of Pleadings. - After the case is set for hearing, no amendment to any pleading affecting the merits of the 445

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS controversy shall be allowed except by leave of Court and only upon such grounds as will serve public interest. But such leave may be refused if it appears to the court that the motion to amend was made with intent to delay the action. Any amendment in matters of from may be permitted at any stage of the proceedings. Section 9. Filing Fee. - No protest, counter-protest, or protest-in-intervention shall be given due course without the payment of a filing fee in the amount of three hundred pesos (P300.00) for each interest. Each interest shall further pay the legal research fee as required by law. If a claim for damages and attorney's fees are set forth in a protest, counterprotest or protest-in-intervention, an additional filing fee shall be paid in accordance with the schedule provided for in the Rules of Court in the Philippines.

Section 10. Cash Deposit. - (a) In any protest, counter-protest or protest-inintervention not requiring ballot revision, the protestant, the counterprotestant, or intervenor, as the case may be, shall upon the payment of the filing fee, make a cash deposit in the amount of five hundred pesos (P500.00) which shall be applied to the payment of all expenses incidental to such protest, counter-protest or protest-in-intervention. When circumstances so warrant, additional cash deposits may be required. Any unused balance thereof shall be returned to the party making the deposit. (b) In case revision of ballots is required, there shall be deposited, within ten days after being required by the Court, the sum of three hundred pesos (P300.00) for every ballot box for the consumption of revisors at the rate of P100.00 each. (c) Failure to make the cash deposits herein provided within the prescribed time limit shall result in the automatic dismissal of the protest, counter-protest or protest-in-intervention, as the case may be. (d) In case the party who has paid the expenses and costs wins, the court shall assess, levy and collect the same as costs from the losing party. Section 11. Presentation and Reception of Evidence. - The presentation and reception of evidence in election contests shall be made in accordance with Section 2 of Rule 17 of these Rules, but the same shall be completed within thirty (30) days from the date of the commencement thereof. 446

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 12. Custody of Ballot Boxes, Election Documents and Paraphernalia. Where allegations in a protests, or counter-protest or protest-in-intervention so warrant, or whenever in the opinion of the Court the interest of justice so demands, it shall immediately order the ballot boxes containing ballots and their keys, list of voters with voting records, books of voters, and other documents used in the election to be brought before it. Said election documents and paraphernalia shall be kept and held secure in a place to be designated by the Court in the care and custody of the Clerk of Court.

Section 13. Revision of Ballots. - For the purpose of revision of ballots, the court shall appoint a committee composed of a chairman and two members, one member and his substitute to be proposed by the protestant, and the other member and his substitute by the protestee. The revision of the ballots by the Committee on revision shall be made in the office of the Clerk of Court or at such other place as may be designated by it, but in every case under the Court's strict supervision. The revision of the ballots shall be completed within twenty (20) days from the date of the order, unless otherwise directed by the Court, subject to the time limits prescribed under Sec. 11 and Sec. 17 of this Rule. Section 14. Book of Voters as Evidence. - The book of voters shall be conclusive evidence in regard to the question as to who has the right to vote in said election. Section 15. Report of the Committee on Revision. - The committee on revision shall make a statement of the condition in which the ballot boxes and their contents were found upon the opening of the same, classify the ballots so examined, and set forth clearly any objection that may have been offered to each ballot in the report to be submitted by it. Disputed ballots shall be numbered consecutively for purposes of identification in the presence and under the direction of the official designated by the Court. After examination, the ballots and other election documents shall be returned to their respective boxes, but disputed ballots shall be placed in a separate envelope duly sealed and signed by the members of the committee, after which said envelope shall then be returned to the box. Thereafter, the boxes shall be locked. For purposes of making the report which shall be submitted in twelve (12) legible copies, the form prescribed by the Commission shall be followed. Section 16. Prohibited Access. - During the revision of ballots no person other than the Judge, the Clerk of Court, members of the committee on revision of 447

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS ballots, the parties, their duly authorized representatives shall have access to the place where said revision is taking place. Section 17. Decision on the Contest. - The Court shall decide the election contest within thirty (30) days from the date it is submitted for decision, but in every case within six (6) months after its filing and shall declare who among the parties has been elected, or in a proper case, the none of them has been legally elected. The party who in the judgment has been declared elected shall have the right to assume the office as soon as the judgment becomes final. In case the Court finds that the protestant, protestee or intervenor shall have an equal or highest number of votes, it shall order the drawing of lots by those who have tied and shall proclaim as elected the party who may be favored by luck, and the party so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality vote. Section 18. Damages and Attorney's Fees in Election Contests. - In all election contests, the court may adjudicate damages and attorney's fee as it may deem just and as established by the evidence if the aggrieved party has included such claims in his pleadings. Section 19. Promulgation and Finality of Decision. - The decision of the Court shall be promulgated on a date set by it of which due notice must be given the parties. It shall become final five (5) days after its promulgation. No motion for reconsideration shall be entertained. Section 20. Notice of Final Decision. - As soon as decision declaring the election of the winner becomes final, notice thereof shall be sent to the Commission on Elections, the Department of Local Government and the Commission on Audit. If the decision be that none of the parties has been legally elected, the Clerk of Court shall certify such decision to the President of the Philippines and to the Commission on Elections. Section 21. Appeal. - From any decision rendered by the court the aggrieved party may appeal to the Commission on Elections within five (5) days after the promulgation of the decision. Section 22. Preferential Disposition of Contests. - The courts shall give preference to election contests over all other cases, except those of habeas corpus. Rule 36 - Quo Warranto Case Before Courts of General Jurisdiction

448

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 1. Filing of Petition. - A voter contesting the election of any municipal official on the ground of ineligibility or disloyalty to the Republic of the Philippines may file a petition for quo warranto with the appropriate Regional Trial Court. Section 2. Designation of Parties. - The party filing the petition shall be referred to as the Petitioner and the party against whom it is filed shall be known as the Respondent. Section 3. Period Within Which to File the Petition. - The petition shall be filed within ten (10) days after the proclamation of the results of the election. Section 4. Petition to be Verified. - The petition shall be verified by the party filing it or by his attorney. Any subsequent pleading based on facts which ought to be proved shall likewise be verified. Section 5. Filing Fee. - No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. Section 6. Summons. - It shall be the duty of the Clerk of Court to serve notice and a copy of the petition by means of summons upon each respondent within five (5) days after the filing of the petition. Section 7. Answer. - Within five (5) days from receipt of the notice and a copy of the petition, the respondent shall file his verified answer to the petition. Section 8. Substantial and Formal Amendments of Pleadings. - The provision of Section 8 of Rule 35 of these Rules shall apply in respect to amendments of pleadings. Section 9. Immediate Hearing; Presentation and Reception of Evidence. - Upon the joinder of issues, the Clerk of Court shall immediately set the case for hearing. The presentation and reception of evidence shall be made in the manner prescribed in Section 2 Rule 17 of these Rules.

Section 10. Termination of Hearing. - The hearing shall be completed within thirty (30) days from the date of the filing of the petition.

449

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 11. Decision. - The court shall decide the case within thirty (30) days from the date it is submitted for decision, but in every case within six (6) months after its filing. Section 12. Promulgation and Finality of the Decision. - The decision of the court shall be promulgated on a date set by it of which due notice must be given the parties. It shall become final five (5) days after its promulgation. No motion for reconsideration shall be entertained. Section 13. Notice of Final Decision. - As soon as a decision becomes final, notice thereof shall be sent to the Commission on Elections, and the Department of Local Government. If the decision is adverse to the respondent, notice shall likewise be sent to the Commission on Audit. Section 14. Appeal. - From any decision rendered by the court, the aggrieved party may appeal to the Commission on Elections, without five (5) days after the promulgation of the decision. Section 15. Preferential Disposition of Quo Warranto Cases. - The courts shall give preference to quo warranto over all other cases, except those of habeas corpus. PART VII ELEVATION OF DECISIONS TO THE SUPREME COURT Rule 37 - Review of Decisions of the Commission Section 1. Petition for Certiorari; and Time to File. - Unless otherwise provided by law, or by any specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.

Section 2. Non-reviewable Decisions. - Decisions in appeals from courts of general or limited jurisdiction in election cases relating to the elections, returns, and qualifications of municipal and barangay officials are not appealable. Section 3. Decisions Final After Five Days. - Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation, unless restrained by the Supreme Court. 450

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS PART VIII GENERAL PROVISIONS Rule 38 - Clerk of Court and Deputy Clerk of Court of the Commission Section 1. Clerk of Court. - (a) In Special Actions, Special Cases and Special Proceedings, the Director of the Law Department or his duly authorized representative shall serve as the Clerk of Court of the Commission. (b) In ordinary Actions, and in Special Reliefs, the Director of the Electoral Contests Adjudication Department shall serve as the Clerk of Court of the Commission. Section 2. Duties of the Clerks of Court. - The Clerks of Court of the Commission shall, subject to the supervision of the Chairman of the Commission, manage for the Commission the proper hearing and disposition of all cases within their respective area of responsibility as stated in Section 1 hereof. Each shall: (a) Receive all pleadings and other documents properly presented, endorsing on each such document the date when it was filed, and furnishing each Member a copy thereof; (b) Keep a judicial docket wherein shall be entered in chronological order the cases and the proceedings had thereon; (c) Prepare the calendar of cases;

(d) Attend sessions of the Commission and enter in a minute book all proceedings therein; (e) Issue under his signature and the office seal, notices, orders and decisions which are to be given due course, furnishing each Member copies thereof; (f) Execute orders, resolutions, decisions and processes issued by the Commission; (g) Keep a judgment book containing a copy of judgments rendered by the Commission in the order of their dates, and a book of entries of judgments containing at length in chronological order entries of all final judgments or orders of the Commission; (h) Keep an account of the funds received and disbursed relative to the cases when so directed; 451

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (i) Keep and secure all records, papers, files, exhibits, the office seal and other public property committed to his charge; (j) Perform such other duties as are prescribed by law for clerks of superior courts; and (k) Keep such books and perform such duties as the Commission may direct. Section 3. Deputy Clerks of Court. - (a) The Assistant Director of the Law Department shall serve as Deputy Clerk of Court in all cases where the Director of said Department acts as the Clerk of Court of the Commission. (b) The Assistant Director of the Electoral Contests Adjudication Department shall serve as the Deputy Clerk of Court in all cases where the Director of said Department acts as the Clerk of Court of the Commission. Section 4. Duties of Deputy Clerks of Court. - The Deputy Clerks of Court shall assist their respective Clerks of Court and shall perform such other duties and functions as may be assigned to them by their respective Clerks of Court. Section 5. Division Clerks of Courts. - Each Division shall have a Division Clerk of Court who must be a ranking lawyer from either the Law Department or the Electoral Contests Adjudication Department and designated by the Commission upon the joint recommendation of the Directors of said departments.

Section 6. Duties of the Division Clerks of Court. - A Division Clerk of Court shall: (a) Attend the hearings of sessions of his Division; (b) Coordinate in the preparation of the calendar of cases; (c) Call the cases in the calendar during sessions or hearings; (d) Supervise the stenographers; (e) Administer oaths to witnesses; (f) Mark exhibits of the parties, indicating therein the date and affixing thereto his signature; (g) Be responsible to the Clerk of Court of the Commission for the safety and security of the records of cases and other documents entrusted to him during sessions or hearings; and 452

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS (h) Perform such duties as may be assigned by the Presiding Commissioner or by the Clerk of Court concerned. Section 7. Stenographers. - Every session or hearing of the Commission, whether en banc or in Division, shall be attended by at least two (2) competent stenographers. Section 8. Duties of Stenographers. - It shall be the duty of the stenographers to: (a) Record faithfully in stenographic notes the proceedings during the session or hearing of the Commission en banc or of the Division; (b) At the close of every hearing or session, to deliver immediately the stenographic notes he has taken to the Clerk of Court or Division Clerk of Court who shall initial all the pages thereof and who shall stamp the date of receipt thereon, and when such notes are transcribed, the transcript shall likewise be delivered to the Clerk of Court who shall initial each page thereof. It shall be the duty of the Clerk of Court to demand that the stenographer comply with said task; (c) Transcribe the notes, upon demand of the Commission or the Division, or by any of the parties, subject to the payment of the prescribed fees; and (d) Perform such other duties as the Commission may prescribe. Section 9. Security. - At any session or hearing of the Commission or any of its Divisions, the Executive Director thru the Assistant Director for Administration, shall provide adequate security for and in the session hall and its premises. Section 10. Support Staff. - The Commission or any of the Divisions may require other employees of the Commission to assist the Commission or the Divisions during its session or hearing or in the performance of its duties. They shall be under the supervision of the Clerk of Court concerned. Rule 39 - Seal of the Commission Section 1. Custodian of the Seal. - The Secretary of the Commission, the Director of the Law Department and the Director of the Electoral Contests Adjudication Department shall each keep a seal of the Commission. Section 2. Use of the Seal. - The seal of the Commission shall be affixed to all decisions, orders, rulings or resolutions of the Commission or any of its Divisions, certified copies of official records, and such other documents which the Commission may require to be sealed. 453

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Rule 40 - Fees and Charges Section 1. Filing Fees for Election Contests and Quo Warranto. - (a) The filing fees for election contests and quo warranto cases and petitions for certiorari, prohibition or mandamus filed with the Commission are hereby prescribed as follows: (1) Election protests and quo warranto cases P500.00 for each interest; (2) Counter-protest or protest-in-intervention P500.00. Each interest mentioned above shall pay an additional amount of P10.00 as legal research fee in accordance with the provisions of Sec. 4, Republic Act No. 3870, as amended by Presidential Decree No. 200 and Presidential Decree No. 1856.

(b) Cash deposits. - In any protest or counter-protest or protest-in-intervention not requiring ballot revision, the following cash deposits shall be paid by the interested party; (1) For each election contest ..... P1,000.00; (2) For each counter-protest or protest-in-intervention P1,000.00. (c) In any protest, counter-protest or protest-in-intervention requiring ballot revision the following cash deposits shall be paid by the interested party: (1) For each election contest ..... P5,000.00; (2) For each counter-protest or protest-in-intervention P5,000.00. The cash deposits prescribed above shall be applied to the payment of all expenses incidental to such protest, counter-protest or protest-in-intervention. When circumstances so demand, additional cash deposits may be required. Any unused balance thereof shall be returned to the protestant, counter-protestant or protestant-intervenor, as the case may be. (d) In case of revision of ballots, there shall be deposited the sum of P350.00 for every ballot box for the compensation of the revisors at the rate of P100.00 each and as reserve for expenses. (e) If a claim for damages and attorney's fees are set forth in a protest, counterprotest or protest-in-intervention, an additional filing fee shall be paid at the rate of P300.00 for the first one hundred fifty thousand pesos and P4.00 for every one thousand pesos over the first P150.000.00 454

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 2. Filing Fees in Special Actions and Special Proceedings. - (a) The petitioner in any Special Action or Special Proceeding shall pay a filing fee of P500.00. (b) In every such a case, a legal research fee of P10.00 pursuant to Sec. 4 of Republic Act No. 3870, as amended, shall be paid.

(c) In petition for registration of political parties, organizations or coalition of political parties, there shall be paid an additional sum of P1,000.00 for the certificate of registration. Section 3. Appeal Fees. - The appellant in election cases shall pay an appeal fee as follows: (a) Election cases appealed from Regional Trial Courts P1,000.00. (b) Election cases appealed from courts of limited jurisdiction .... P500.00. In every case, a legal research fee of P20.00 shall be paid by the appellant in accordance with Sec. 4, Republic Act No. 3870, as amended. Section 4. Where and When to Pay. - The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with, the Cash Division of the Commission within a period to file the notice of appeal. Section 5. Filing Fees in Special Cases. - (a) In special Cases the petitioner shall pay a filing fee of P500.00. (b) In such cases there shall be imposed an amount of P10.00 as legal research fee in accordance with Sec. 4, Republic Act No. 3870, as amended. (c) Cash Deposit - If in a Special Case a recount of the ballots is required, the Commission or the Division to which the case is assigned, shall order the interested party to make a cash deposit of P2,000.00 with the Cash Division, Administrative Services Department of the Commission, within a period to be fixed in the order. This amount shall be applied to all expenses incidental to the controversy. When circumstances so demand, additional cash deposits may be required. Whenever applicable, the revisor's fees fixed on Section 1 (c) above shall be deposited with the Cash Division, Administrative Services Department of the Commission by the party concerned. 455

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 6. Legal and Administrative Fees, Service Charges and Costs. - The legal fees, service charges and costs prescribed herein are hereby authorized to be charged and/or collected by the Commissioner for the service, action or proceeding hereinafter mentioned.

Section 7. Legal Fees. - The following legal fees shall be charged and collected: (a) For furnishing certified transcripts of records of copies on any record, decision, ruling or entry of which any person is entitled to demand and receive a copy, per page.... P5.00; (b) For every certificate not on process, first ten (10) pages.... P50.00 succeeding, per page.... P1.00; (c) For every search of any record (per page) and reading the same .... P10.00; (d) For every search of any record (per page) pertaining to election cases and reading the same .... P20.00 (e) For copying (photo or xerox) of any list, document or record using machines of requesting parties, per page.... P0.50 (f) For filing of a motion for reconsideration on a decision, order or resolution.... P300.00 (g) For copying (xerox) of any list, document or records, using the machines and materials of the Commission, per page.... P1.50 (h) For every issuance of a duplicate voter's identification card. ..... P10.00 The fees and charges prescribed herein shall be reduced by fifty percent (50%) if the purpose of the request is for academic research work. The department/office which is the legal custodian of the document/record requested shall be responsible for the copying (xeroxing) thereof and shall certify that it is a coy of the official records of the Commission, and shall affix thereto the seal of the Commission. No certified copy of any official record of the Commission shall be issued without the payment of the corresponding fees. Section 8. Where Fees are to be Paid. - The fees herein before provided shall be paid by the party concerned to the Cash Division, Administrative Service 456

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Department of the Commission, at the time of request or demand. If the fees are not paid, the Commission may refuse to take action thereon until they are paid. Section 9. Fees for Bailiffs, Sheriffs, and Other Persons Serving Process. - (a) For executing any process of the Commission, for each kilometer of travel in the service of process, reckoned from the place of service to the place to which the process is returnable, P1.00, but if the process is executed by a municipal deputy sheriff residing in the municipality where the party served is residing such officer shall receive the fees for the service of process without kilometrage, provided that the party requiring the process shall deposit with the Commission at the time of request the estimated cost of expenses for kilometrage and per diems to be incurred by the Sheriff but more than P1,000.00. (b) For serving summons and a copy of petition furnished by the petitioner for each respondent, P20.00 but when the respondents reside at the same place, the fee shall be P10.00 for each respondent; and (c) For serving subpoenas, for each witness served, P5.00 besides travel fees. Section 10. Fees for Stenographers. - Stenographers shall give certified transcript of notes taken by them to every person requesting the same upon payment of (a) P2.00 for each page of not less than two hundred and fifty words before the case is brought to the Supreme Court on certiorari, and (b) P1.00 for the same page, thereafter. Section 11. Witness' Fees. - Witnesses in any action in the Commission shall be entitled to P20.00 per day and P1.00 for each kilometer of travel in going to the place of hearing and coming from their homes within the Philippines by the nearest route of usual travel, or in lieu of said mileage, actual travel expenses by the cheapest means of transportation. A witness shall not be allowed compensation for his attendance in more than one case or more than one side of the same case at the same time, but may elect in which of several cases or on which side of a case, if witness is summoned by both sides, to claim his attendance. A person who is compelled to attend the hearing on other business of the Commission shall not be paid as witness.

Section 12. Costs. - Costs shall be allowed to the prevailing party as a matter of course, but the Commission shall have the power, for special reasons, to adjudge the either party shall pay the costs of an action, or that the same be divided, as maybe equitable. No costs shall be allowed against the Republic of the Philippines unless otherwise provided by law. 457

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 13. Costs in Action or Processing. - In an action or proceeding before the Commission, the prevailing party may recover the following cost: (a) For his own attendance, and that of his attorney, down to and including final judgment, one hundred peso (P100.00); (b) All lawful fees charged against him by the Commission, in entering and docketing the action and recording the proceedings and judgment therein and for the issuing of all processes; (c) If testimony is received in the Commission, not taken in another court and transmitted thereto, the prevailing party shall be allowed the same costs for witness fees, depositions, and process and service thereof as he would have been allowed for such items had the testimony been introduced in the lower courts; and (d) The lawful fees of a commissioner in any action may also be taxed against the defeated party, or apportioned as justice requires. Section 14. When Action or Appeal Dismissed. - If an action or an appeal is dismissed for want of jurisdiction or otherwise, the Commission nevertheless shall have the power to render judgment for costs, as justice may require. Section 15. Costs When Action or Appeal Frivolous. - When an action or an appeal is found to be frivolous, double or treble costs may be imposed on the petitioner or appellant, which shall be paid by his attorney, if so ordered by the Commission. Section 16. Attorney's Fees as Costs. - No Attorney's fees shall be taxed as costs against the adverse party, except as provided by the Civil Code. But this section shall have no relation to the fees to be charged by an attorney as against his client.

Section 17. Costs When Witness Fails to Appear. - If a witness fails to appear at the time and place specified in the subpoena issued by the Commission, the costs of the warrant of arrest of the witness shall be paid by the witness if the Commission shall determine that his failure to answer the subpoena was willful or without just excuse. Section 18. Non-payment of Prescribed Fees. - If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. 458

NOTES ON OMNIBUS ELECTION CODE AND RELATED LAWS Section 19. Government Exempt. - The Republic of the Philippines is exempt from paying the legal fees provided in this resolution. Section 20. Collection and Remittances of Legal Research Fee. - The amount collected as legal research fee shall be receipted for as "Legal Research Fund" and shall be immediately remitted to the University of the Philippines. PART IX CONCLUDING PROVISIONS Rule 41 - Supplementary Rules Section 1. The Rules of Court. - In the absence of any applicable provisions in these Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in suppletory character and effect. Rule 42 - Repealing Clause and Effectivity Section 1. Repealing Clause. - All resolutions, rules, regulations or circulars of the Commission or parts thereof which are inconsistent with any provision of these Rules are hereby deemed repealed or modified accordingly. Section 2. Transitory Provision. - These rules shall govern all cases brought after they take effect and also further proceedings in cases than pending, except to the extent that in the opinion of the Commission or the court in appropriate cases, an application would not be feasible or would work injustice, in which event the former procedure shall apply.

Section 3. Separability Clause. - If any part of these Rules is declared unconstitutional, the remaining part not affected thereby shall remain valid and effective. Section 4. Effectivity. - These Rules shall be published in the Official Gazette or in two (2) daily newspapers of general circulation and shall take effect on the seventh day following its publication.

459