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ELECTION LAWS
Suffrage the right and obligation of
qualified citizens to vote in the election of certain
national and local of the government and in the
decisions of public questions submitted to the
people. It includes within its scope: election,
plebiscite, initiative, referendum and recall.
Election the means by which the people
choose their officials for a definite and fixed
period and to whom they entrust for the time
being as their representatives the exercise of the
powers of the government, It involves the choice
of selection of candidates to public office by
popular vote.
Plebiscite a vote of the people
expressing their choice for against a proposed
law or enactment submitted to them. An election
at which any proposed amendment to or revision
of the Constitution is submitted to the people for
their ratification. A constitutional requirement o
secure the approval of the people directly
affected, before certain proposed changes
affecting local governments units may be
implemented.
Initiative it is the process by which the
registered voters directly propose, amend laws,
national or local, though an election called for the
propose. Amendments to the Constitution may
likewise be directly proposed by the people
though initiative.
Referendum- it is at he submission of a
law pass by the national or local legislative body
to the registered voters of an election called for
the purpose for their ratification or rejection.
Recall- it is a method by which a public
officer may be removed from office during his
tenure or before the expiration of his term by a
vote of the people after registration of a petition
singed by a required percentage of the qualified
voters.
Since the right of suffrage is a political and
not a natural right, it is within the power of the
state prescribe the manner in which such right

shall be exercised. Congress is mandated by the

Constitution (Sec.2, Art. V):
To provide a system for securing the secrecy
and sanctity of the ballot, and for
absentee voting by qualified Filipinos
abroad, and
To design a procedure for the disabled and
the illiterate to vote without
the
assistance of other persons.
THE COMMISSION ON ELECTIONS
Composition, Qualifications, Appointment,
Term of Office
The COMELEC is composed of a
chairman and six (6) Commission, The Chairman
and the Members of the Commission shall be:
natural -born citizens of the Philippines
at least thirty-five years of age
holders of a college degree
must not have been candidates for any
elective position in the immediately
preceding election
majority thereof, including the Chairman shall
be members of the Philippines Bar who
have been engaged in the practice of law
for at least 10 years (reason: COMELEC
exercises quasi-judicial powers)
The Chairman and Members are
appointed by the president with the consent of
the commission on Appointment for the term
seven (7) years without reappointment on a
staggered basis to make the COMELEC a
continuing
and
self-perpetuating
body.
Consequently, its members would have the
benefit of the experience and expertise of the
order members of the performance of its
functions, and makes for greater responsibility for
its policies and decisions and serve as guarantee
against arbitrary action which is likely to occur in
a body handling partisans questions.

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A member appointment and designations

in temporary or acting capacity are not allowed to
preserve its independence.
Disabilities, inhibitions\disqualifications
1. Shall not, during tenure, hold any other
office or employment

The COMELEC enjoy fiscal autonomy.

The COMELEC may promulgate its own
procedural rules, provided they do not
diminish, increase or modify substantive
rights (though subject to disapproval by
the Supreme Court)

2. Shall not engage in the practice of

profession

The Chairman and Members are subject to

certain disqualifications calculated to
strengthen their integrity.

3. Shall not engage in active management or

control of any business which in any ay
may be affected by the functions of his
office

The COMELEC may appoint their own

officials and employees in accordance
with Civil Service Laws.

4. Shall not be financially interested, directly

or indirectly, in any contract with, or in any
franchise or privilege granted by the
Government, any of its subdivisions,
agencies or instrumentalities, including
GOCC s or their subsidiaries.
Safeguards to insure the independence of
the COMELEC
It is constitutionally created; may not be
abolished by statute
It is expressly described as independent
It is conferred with certain powers and
functions which cannot be reduced by
statute.
The chairman and members cannot be
removed except by impeachment.
The chairman and members are given fairly
long term of office of seven years.
The chairman and members may not be
reappointed or appointed in an acting
capacity.
The salaries of the chairman and members
are relatively high and may not be
decreased during continuance in office.

En Banc & Division Cases

SEC 3, ART IX-C The COMELEC 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 decision shall be decided
by COMELEC en banc
The Supreme Court set aside the
resolutions/decisions of the COMELEC because
dthe COMELEC en banc tokk original
cognizance of the cases without referring them
first to the appropriate Division (Sarmiento vs.
COMELEC 212 SCRA 307; Zarate vs
COMELEC, 318 SCRA 608)
Interlocutory orders issued by a division of
the COMELEC cannot be elevated to the
COMELEC en banc. (Kho vs. COMELEC, 279
SCRA 463)
The following cases must be decided in
Division before they may be heard en bnc on
motion for reconsideration:
Petition to cancel a certificate of candidacy.
(Garvida vs. Sales, 271 SCRA 764)
Cases appealed from the RTC or MTC
(Zarate vs. COMELEC,318 SCRA 608)

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Petition for certiorari involving incidental

issues of election protest.(Soller vs.
COMELEC,339 SCRA 685)
The COMELEC en banc, however, may
directly assume jurisdiction over petitions for
correction of manifest errors in the tabulation or
tallying of results (Ststement of votes) by the
Board of Canvassers, notwithstanding that the
same is a pre-proclamation comtroversy. Section
5, Rule 27 of the 1993 Rules of the COMELEC
expressly provides that pre-proclamation
controversies involving correction of manifest
errors in the tabulation of results may be filed
directly with the COMELELEC cen banc. (Torres
vs. COMELEC,270 SCRA 583; Ramirez vs.
COMELEC,270 SCRA 590)
The COMELEC en banc determines the
existence of probable cause.(Faelnar vs.
COMELEC,331 SCRA 429)
DECISIONS
ART
IX-A,
Section
7
Each
commission(COMELEC) shall decide by a
majority vote of all its Members any case or
matter brought before it within sixty days
from date of its submission for decision or
resolution. A case or matter is deemed
submitted for decision or resolution upon the
filing of the last pleading, brief, or
memorandum required by the rules of the
Commission or by the Commission itself.
Unless otherwise provided by the
Commission or by law; any decision, order, or
ruling of each Commission may be brought to
the Supreme Court on certiorari by the
aggrieved party within 30 days from receipt of
a copy thereof.
The COMELEC shall decide by a majority
vote of all its members in any case or matter
brought before it within 60 days from date of its
submission for decision or resolution. Two
members shall constitute a quorum for the
transaction of the official business of the Division.
A case being heard by it shaa be decided with

the unanimous concurrence ofc all three

Commissioners and its decision shall be
considered a decision of the commission. If this
required number is not obtained, as when there
is a dissenting opinion, the case may be
appealed to the Commission en banc, in which
case the vote of the majority shall be the decision
of the Commisssion.
The court holds that 2-1 decision rendered
by the First Division was a valid decision under
ART IX-A ,Section 7 of the Constitution.
Furthermore, the three members who voted to
affirm the First Division constituted a majority of
the five members who deliberated and voted
thereon en banc and their decision is also valid
under the aforecited constitutional provisions.
(Cua vs. COMELEC, 156 SCRA 587)
One who is no longer a member of the
COMELEC at the time the final decision or
resolution is promulgated cannot validly take part
in that resolution or decision,much more could he
be the ponente of the resolution or decision.
(Ambil vs. COMELEC, 344 SCRA 358)
RULES OF PROCEDURE
The COMELEC en banc may promulgate
its own rules concerning pleadinga and practice
before it or before any of its offices. Such rules,
however, shall not diminish,increase or modify
substantive rights. The Rules of Court applies
suppletorily to proceedings before the
COMELEC. (Paangarungan vs. COOMELEC,216
SCRA 522)
CONSTITUTIONAL
FUNCTIONS

POWERS

AND

Enforce and administer laws relative to

conduct of elections
The regular courts have no jurisdiction to
entertain a petition to enjoin the
construction of public works projects
within 45 days before an election.
(Gallardo vs. Tabamo,218 SCRA 253)
Decide election contests involving regional,
provincial and city officials

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ELECTION CONTEST refers to the

adversary proceedings before which
matters involving the title or claim to an
elective office made before or after
proclamation of the winner,is settled
whether or not the contestant is claiming
the office in dispute. It is neither a civilk
action nor crimianal proceeding;it is a
summary proceeding of a political
character. Its purpose is to ascertain the
candidate lawfully elected to office.(Javier
vs. COMELEC,144 SCRA 194)
The COMELEC has exclusive appellate
jurisdiction over,inter alia, contest
involving elective barangay officials
decided by trial courts of limited
jurisdiction.(Beso vs. abolla,327 SCRA
100)
The provision of RA 6679 granting
appellate jurisdiction to the RTC over
decisions of MTCs in electoral cases
involving elective barangay officials is
unconstitutional.
(Flores
vs.
COMELEC,184 SCRA 484)
The COMELEC is the proper appellate
court clothed with jurisdiction to hear the
appeal, which must first be filed wiyhin 5
days after the promulgation of the MTCs
decision(Antonio vs. COMELEC,315
SCRA 62)
The election of SK are goverened by the
Omnibus Election Code. Any contest
relating to the election of the SK (including
the chairman whether pertaining to their
eligibility or the manner of their election is
cognizable by MTCs,MTCCs, and MeTCs.
It is the proclamation which marks off the
jurisdiction of the courts from the
jurisdiction of election officials. (Marquez
vs. COMELEC, 313 SCRA 103)
The COMELEC has appellate jurisdiction
over election protest cases involving
elective municipal officials decided by
courts of general jurisdiction. (Carlos vs.
Angeles,346 SCRA 671)

Decide all questions affecting elections

The COMELEC has no jurisdiction over
questions involving the right to vote which
includes
qualifications
and
disqualifications of voters, the right of a
person to be registered as voter, the right
to cast his vote, and other allied
questions. Such questions shall be
decided by the courts.( Naciionalista Party
vs. COMELEC, 84 Phil 49)
Election contests involving elections of
SK officials do not fall within section 252
of the OEC and paragraph 2,section
ART.IX-C of the Constitution and no law in
effect prioir tom the ratification of the
constitution has made the SK Chairman
an elective barangay official. SK elections
are under the direct control and
supervision of the DILG. (Ahman vs.
Mirasol,276
SCRA
501)
Decisions/determinations made by the
COMELEC in the exercise of this power,
being merely administrative(not quasi
judicial) in character, may be questioned
in an ordinary civil action before the trial
courts.(Filipinas
Engineering
vs.
Ferrer,135 SCRA 25)
Deputize law enforcement agencies with the
concurrence of the President
Register political parties and accredit its
citizens arms
File petitions, investigate and prosecute
Recommend measures to improve election
laws
Recommend the imposition of disciplinary
action upon an employee it has deputized
for violation of its order.
Since the COMELEC can recommend that
disciplinary action be taken against an
officer it had deputized, idt can investigate
an administrative charge against such an
officer to determine whether or not it

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should recommend that disciplinary action

can be taken against him (Tan vs.
COMELEC,237 SCRA 353)
Regulation of public entities and mediaSection 4, IX-C The Commission may,
during the election period, supervise or
regulate the enjoyment or utilization of all
franchises or permits for the operation of
transportation and other public utilities,
media of communication or information, all
grants special privileges, or concessions
granted by the Government or any
subdivision, agency or instrumentality
thereof, including any government-owned
or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to
ensure equal opportunity, time, and space
and the right to reply, including reasonable
equal rates therefor, for public information
campaigns and forums among candidates
in connection with the objective of holding
free, orderly, honest, peaceful, and
credible elections.
The authority given to the COMELEC is to
be exercised ofr the purpose of ensuring
free, orderly,honest,peaceful.and credible
elections and only during the elecxtion
period. Note that GOCCs are among
those that may be supervised and
regulated by the COMELEC.
The SC upheld the validity of Section
11(b), RA 6646, prohibiting the sale odr
donation of print space or airtime for
political advertisements, and the authority
of the COMELEC to procure print space
(upon payment of just compensation) and
free airtime for allocation to candidates.
(Telecommunication
and
Broadcast
Attorneys of the Philippines vs.
COMELEC,289 SCRA 33)
An exit poll is a species of electoral survey
conducted by qualified individuals or groups
of individuals for the purpose of determining
the probable result of an election by
confidentially asking randomly selected
voters
whom
they
have
voted
for,immediately after they have officially cast

their
ballot.(ABS-CBN
Broadcasting
corporation vs. COMELEC,323 SCRA 811)
An absolute prohibition would be
unreasonably
restrictive,because
it
effectively prevents the use of exit poll data
not only for election-day projections,but also
for long term research. The COMELEC
concern
with
the
possible
non
communicative effect of exit polls-disorder
and confusion in the voting centers- does
not justify a total ban on them. The holding
of exit polls and the dissemination of their
results through mass media constitute an
essential part of freedom of speech and of
the press. The reason behind the principle
of ballot secrecy is to avoid vote buying
through voter identification (ABS-CBN
Broadcasting Corporation vs. COMELEC)
The SC held that SEC 5.4 of the Fair
Election Act prohibiting publication of survey
results 15 days immediately preceding a
national election and 7 days before a local
election violates the constitutional rights of
speech,expression,and the press because:
a. It imposes prior restraint on the
freedom of expression;
b. It is a direct and total suppression of
the category of expression even
though such suppression is only for
a limited period; and
c. The governmental interest sought to
be promoted can be achieved by
means other than the suppression of
freedom of expression. (Social
Weather Station vs. Comelec, GR
No. 147571, May 5,2001)
Make minor adjustments of the apportionment
of legislative districts.
This refers mainly to the power to correct
an error because of the omission of a
municipality or an error in the name of a
municipality and does not include the power
to make a reappointment of legislative
districts. (Montejo vs. COMELEC,242 SCRA
415)

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Adjust the apportionment in a case of creation

of new provinces or cities.
The COMELEC is merely authorized to
adjust the number of congressmen
apportioned to an old province if a new
province is created out of it and does not
authorize the COMELEC to transfer
municipalities from one legislative district to
another. (Montejo,supra)
Pardon violators of election laws.
Promulgate rulwes of procedure concerning
pleadings and practice before it or any of its
offices.
Submit report on how a previous elections was
conducted.
STATUTORY POWERS
1. Power to declare failure of election and
call for special election.
2. Exclusive original jurisdiction over all preproclamation controversies.
3. Issue writs of certiorari, prohibition
The COMELEC has the authority to issue
extraordinary writs of certiorari,prohibition and
mandamus in aid of its exclusive appellate
jurisdiction.
Both the SC and the COMELEC have
concurrent jurisdiction to issue writs of
certiorari,prohibition, and mandamus over
decisions of trial courts of general jurisdiction in
election cases involving elective municipal
officials. The court takes jurisdiction first shall
exercise exclusive jurisdiction over the case.
(Carlos vs. Angeles,346 SCRA 571)
4. Summons parties to a controversy pending
before it
5. Enforce and execute its decisions and orders
6. Punish contempts provided for in the Rules of
Courts.
The COMELEC has the power to cite for
contempt, but this power may be exercised only
while the COMELEC is engaged in the
performance of quasi-judicial functions and not

administrative
functions.(Guevarra
vs.
COMELEC, 104 PHIL 269 and Masangcay vs.
COMELEC, 6 SCRA 270)
7. Promulgate rules and regulations
implementing the Election Code
8. Exercise direct and immediate supervision
and control over officials required to perform
duties relative to the conduct of election.
9. Prescribe forms to be used in the election
10. Procure any supplies, equjipment, materials
or services needed for the holding of election
11. Prescribe the use or adoption of the latest
technological and electronic devices
12. Carry out continuing and systematic
campaign to educate the public about elections
13. Fix other reasonable periods for certain
pre-election requirements.
Enlist non-partisan groups to assist.
JUDICIAL REVIEW OF DECISIONS

Any decision, order or ruling of the

COMELEC en banc may be brought to the SC
on certiorari by the aggrieved party within 30m
days from receipt of the copy thereof. When the
Supreme Court reviews a decision of the
COMELEC, the court exercises extraordinary
jurisdiction, thus the proceeding is limited to
issues involving grave abuse of discretion
resulting in lack or excess of jurisdiction and
does not ordinarily empower the court to review
the factual findings of the COMELEC. (Aratuc
vs. COMELEC,88 SCRA 251)
The mode by which a decision, order or
ruling en banc may be elevated to the SC is the
civil action of certiorari under Rule 65 of the
1964 Revised Rules of Court, now expressly
provided in Rule 64, 1997 Rules of Civil
Procedure, as amended. (Ambil vs.
COMELEC,344 SCRA358)
A special civil action for certiorari is the
proper remedy to question any final order,
ruling and decision of the COMELEC rendered
in the exercise of its adjudicatory or quasijudicial powers.(Guerero vs. COMELEC,336
SCRA 458)

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What is contemplated by the term final

orders, rulings and decisions of the COMELEC
reviewqable by certiorari by the Suprerme
Court as provided by law are those rendered in
actions or proceedings before the COMELEC
and taken cognizance of by the said body in the
exercize of its adjudicatory (or quasi-judicial)
powers. (Salva vs. Makalintal, 340 SRA 506)
COMELEC Resolution No. 2987 which
provides for the rules and regulations governing
the conduct of plebiscite, is not issued pursuant
to the COMELECs quasi-judicial functions but
merely as an incident of its inherent
administrative functions over the conduct of
plebiscites, and any question pertaining to the
validity of said resolution may be well taken in
an ordinary civil action before the trial courts.
(Salva ,supra)
The alleged nature or the COMELEC to
implement its resolution ordering the deletion of
a candidates name in the list of qualified
candidates does not call for the exercise of the
SCs function of judicial review as it is
undoubtedly administrative in nature, beyond
judicial interference.(Chavez vs. COMELEC,
211 SCRA 315)
A resolution of the COMELEC awarding a
contract for the supply of voting booths to a
private party, as a result of its choice among
various proposals submitted in response to its
invitation to bid, is not reviewable by certiorari
as it is not order rendered in the legal
controversy before it but merely as incident to
its inherent administration functions over the
conduct of elections. Any question arising from
said order may be taken in an ordinary civil
action. (Filipinas Engineering vs. COMELEC,
344 SCRA 358)
The Supreme Court has no power to
review via certiorari, an interlocutory order or
even a final resolution of a Division of the
COMELEC. (Ambil vs. COMELEC, 244 SCRA
358)
A decision, order or resolution of a division
of the COMELEC must be reviewed by the
COMELEC en banc decision may be brought to
the supreme Court on certiorari. (Ambil vs.
COMEL, 358)

VOTERS:
QUALIFICATION
REGISTRATION

AND

Qualification for Suffrage

Filipino citizenship- it may be by birth or
naturalization.
Age- a person may be registered as a voter
although he is less than 18 years at the time
of registration if he will be at least 18 on the
day of election.
Residence- at least 1 year in the Philippines,
and at least 6 months where he proposes to
vote immediately preceding the election.
Any person who, on the days of registration
may not have been reached the required
period of residence but who, on the day of
election shall possess such qualification,
may register as voter.
No literacy, property or other substantive
requirement shall be imposed on the exercise of
suffrage.
Any person who temporarily resides in
another city municipality or country solely by
reason of occupation, profession, employment in
public or private service, educational activities,
work in the military or naval reservations within
the Philippines, service in the AFP, PNP or
confinement or detention in government
institutions, shall not deemed to have lost his
original residence. (Sec. 9, RA 8189)
In election cases, the Supreme Court treats
domicile and residence and residence as
synonymous terms. In order to acquire a new
domicile by choice, there 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. The
residence at the place chosen for the new
domicile must be actual. (Romualdez vs.
RTC,226 SCRA 406)

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Disqualifications
1. Any person sentenced by the final
judgment to suffer imprisonment for not
less than one year.
2. Any person adjudged by the final
judgment of having commit (a) any crime
involving disloyalty to the government or
(b) any crime against national security (c)
firearms laws.
3. Insane or incompetent persons
declared by competent authority.

as

Removal of disqualification for conviction

Plenary pardon
Amnesty
Lapse of 5yaers after service of sentence
(Sec.111, RA 8189)
System of Continuing Registration
The personal filing o application of
registration of voters shall be conducted daily in
the office of the Election Office during regular
office hours. No registration shall, however, be
conducted during the period starting 120 days
before a regular election and 90 days before a
special election. (Sec. 8, RA 8189)
The Supreme Court upheld the validity of
the COMELEC resolution denying the petition of
certain youth sectors to conduct a special
registration: Petitioners were not denied the
opportunity to avail of the continuing registration
under RA 8189..the law aids the vigilant and not
those who slumber on their rights
In a representative democracy the right of
suffrage, although afforded a prime niche in the
hierarchy of right embodied in the fundamental
law., ought to be exercised within the proper
bounds frames and framework of the Constitution
and must properly yield to pertinent laws skillfully
enacted by the Legislature

The right of suffrage ardently invoked by

herein petitioners is not at all absolutethe
exercise of suffrage, as the enjoyment of all other
rights subject to existing substantive and
procedural requirement embodied in our
Constitution, statute books and other repositories
of law. (AKBAYAN Youth et al. vs. COMELEC
GR No. 147066, March 26, 2001)
Inclusion and Exclution Cases
1. Jurisdiction
ii. Municipal or Metropolitan Trial
Court original and exclusive
Jurisdiction\
iii. Regional Trial Court appellate
jurisdiction (5 days) (Sec. 33, RA
8189)
iv. Supreme Court appellate
jurisdiction over RTC on question
of law (15 days) [Sec. 5(2)(e), Art.
VIII, PC; Sec. 2, Rule 45 of the
Rules of Court.]
2. Petitioners
ii. Inclusion
Private person whose application
was disapprove by the Election
Registration Board or whose name
was stricken out from the list of
waters (Sec. 34, RA 8189)
COMELEC [Sec. 2(6), Art. IX-C,
PC]
iii. Exclusion
i. Any registered voter in city
or municipality
ii. Representative of political
party
iii. Election Officer (Sec. 39,
RA 8189)
iv. COMELEC [Sec. 2(6), Art.
IX C, PC]
3. Period for Filing

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ii. Inclusion Any day except 105

days before regular election or 75
days before a special election.
(Sec. 24, RA 8189)
iii. Exclusion Any time except 100
days before a regular election or
65 days before special election.
(Sec. 35 RA 8189)

No motion for reconsideration is allowed,

(Sec. 33, RA 8189)
Annulment of List of Voters
1.

Upon verified complaint of any voter,

election officer or registered political
party or motu propio, the COMELEC
may annul a list of votes which was
not prepared in accordance with RA
8189 or whose preparation was
affected with fraud, bribery, forgery,
impersonation, intimidation, force or
other similar irregularity or statistically
improbable.

2.

No list of voters shall be annulled

within 60 days before an election (See.
33, RA 8189)

4. Procedure
ii.
iii.
iv.

Petition for exclusion shall be

sworn (Sec. 35 , RA 8189)
Each petition shall refer only to
only one precinct. (Sec. 35, RA
8189)
Notice
i. Parties to be notified

5. Inclusion Election Registration Board

i. ii
Exclusion
6. Election Registration Board
7. Challenged voters [Sec. 32(b), RA 8189]
8. Manner
9.
1. Notice stating the place day and
hour of hearing shall
be
served through any of the
following means:
10. Registered mail
ii.
iii.
iv.

Personal delivery
Leaving copy in possession of
sufficient
discretion
in
residence.
Posting in city hall or municipal
hall
and
two
other
conspicuous places in the city
or municipality at least 10 days
before the hearing (Sec. 32(b),
RA 8189)

Any voter, candidate or political party

affected may intervene. (Sec. 32c, RA
8189)
Non-appearance is prima facie evidence
the registered voter is fictitious (Sec. 32
(f), RA 8189)
Decision cannot be rendered on
stipulation of facts (Sec. 32 (f), RA 8189)

The annulment of the list of voters shall

not constitute a ground for a pre-proclamation
controversy. (Ututalum vs. COMELEC, 181
SCRA 335)
When an assailed order had been issued
pursuant to COMELECs administrative powers in
the absence of any finding of grave abuse of
discretion in declaring a precinct as non
existent, said order shall stand, judicial
interference being unnecessary and uncalled
for The sacred right of suffrage guaranteed by
the Constitution is not tampered when a list of
fictitious voters is excluded from an electoral
exercise. (Sarangani vs. COMELEC, 334 SCRA
379)
Election precinct is the basic unit of territory
established by the COMELEC for the purpose of
voting.
A polling place refers to the building or place
where the board of election inspectors conduct
proceedings and where the voters cast their
votes.
Voting center refers to the building or place
where the polling place is located.
List of voters refers to an enumeration of names
of registered voters in a precinct duly certified by

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10

the Election Registration Board for use in the

election.

5.

Book of voters refers to the compilation of all

registration records in a precinct.

6.

Signature of Chairman at back of every ballot

In every case before delivering an official
ballot to the voter, the Chairman of the BEI 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 BEI and shall
constitute an election offense punishable under
Sections 263 and 264 of the OEC.

It violates or fails to comply with laws,

rules and regulations relating to
elections
It declares untruthful statements in its
petition
It has ceased to exist for at least one
year , and
Fails to participate in the last two
preceding elections, or fails to obtain at
least 2% of the votes cast under the party
list system in the two preceding
elections for the constituency in which it
was registered.

7.
8.

A party which fails to obtain at least

10% of the votes cast in the
constituency in which it nominated
candidates in the election next
following its registration shall forfeit its
registration.

IV. POLITICAL PARTIES AND PARTY LIST

SYSTEM
Political party or party when used in the
OEC means an organized group of persons
pursuing the same ideology, political ideas or
platforms of government and includes its
branches or divisions. A political party may refer
to a local regional or national party existing and
duly registered and accredited by the COMELEC.
To acquire juridical personality, qualify for
accreditation, and to be entitled to the rights of
political parties, a political party must be
registered with the COMELEC. The following
political parties cannot be registered.
1.
2.

Religious sects
Those which seeks to achieve their
goals through unlawful means
3. Those which refuse to adhere to the
Constitution
4. Those that are supported by any foreign
government
GROUNDS FOR CANCELLATION OF
REGISTRATION
1.

2.
3.
4.

Accepting financial contributions from

foreign governments or their agencies (for
partisan election purposes.) (Sec.2(5), Art
IX C, PC)
It is a religious sect or denomination,
organization or association organized for
religious purposes.
It advocates violence or unlawful means
to seek its goal
It is a foreign party or organization

Party System. A free and open party system

shall be allowed to evolve according to the free
choice of the people. [Sec 2(5) Art. IX C, PC]
The Party List System, is a mechanism
of proportional representation in the election of
representatives to the House of Representatives,
from national, regional and sectoral parties,
organizations and coalitions thereof registered
with the COMELEC. The Party list system was
devised to replace the reserve seat system the
very essence of the party list system is
representation by election. (Veterans Federation
Party vs. COMELEC, 342 SCRA 244)
GUIDELINES FOR SCREENING PARTY LIST
PARTICIPANTS
1.

The political party, sector, organization

must represent the marginalized and
underrepresented groups identified in
Sec. 5 of RA 7941. majority of its
membership should belong to the
marginalized and underrepresented;
Proportional representation refers to the
representation of the marginalized and
underrepresented as exemplified by
the enumeration in Sec/ 5 of the law,
namely; labor peasant, fisherfolk,

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urban poor, indigenous cultural

communities,
elderly,handicapped,
women youth, veterans, overseas
workers and professionals. The party
list organization or party must factually
and truly represent the marginalized
and underrepresented constituencies
mentioned in Sec. 5 .(ang bagong
Bayani OFW Labor Party, etal vs.
COMELEC etal. GR No. 147589. June
26, 2001)
2.

While even major political parties are

expressly allowed by RA 7941 and the
Constitution, they must comply with
the declared statutory policy of
Filipino citizens belonging to
marginalized and underrepresented
sectors to be elected to the House of
Representatives. Thus, they must
show that they represent the interest
of
the
marginalized
and
underrepresented;

11

not heir religious sect but the

indigenous community sector.
4.

A party or an organization must not be

disqualified under Sec. 6, RA 7941;

5.

The party organized must not be

adjunct of, or a project organized or an
entity funded or assisted by, the
government;

6.

The party, including its nominees must

comply
with
the
qualification
requirements of Sec. 9, RA 7941 as
follows: No person shall be nominated
as party list representative unless he
is:
a. natural born citizen of the
Philippines
b. a registered voter,
c. a resident of the Philippines for a
period not of no less than one year
immediately preceding the day of
the election;
d. able to read and write;
e. a bonafide member of the party or
organization which he seeks to
represent for at least 90 days
preceding the day of the election;
and
f. At least 25 years of age on the day
of the election. In case of a
nominee of the youth sector, at
least be 25 but not more than 30
years of age on the day of the
election. Any youth sectoral
representative who attains the age
of 30 during his term shall be
allowed to continue in office until
the expiration of his term.

Political parties, even the major ones, may

participate in the party list elections, except for
purposes of May 11, 1998 elections. The
requisite character of these organizations must
be consistent with the purpose of the party list
system, as laid down in the Constitution and RA
7941 . . .
Under the Constitution and RA 7941,
provide respondents cannot be disqualified from
the party list elections, merely on the ground that
they are political parties. Sec. 5 Art. VI of the
Constitution provides that members of the House
of Representatives may be elected through a
party list system of registered national, regional
and sectoral parties or organizations.
Furthermore, under Secs. 7 and 8, Art IX C of
the Constitution, political parties may be
registered under the party list system. (Ang
Bagong Bayani OFW Labor Party, et al vs.
COMELEC, et al. GR No. 147589, June 26,
2001)
3.

That religious sector may not be

represented in the party list system,
except that priest, imam or pastors
may be elected should they represent

7.

Not only the candidate party or

organization
must
represent
marginalized and underrepresented
sectors, so also must its nominees;

8.

While lacking a well

constituency, the
likewise be able to
formation
and

defined political
nominee must
contribute to the
enactment
of

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appropriate legislation that will benefit

the nation as a whole.
The parameters of the Filipino Party List
System are: (1) the twenty percent
allocation, (2) the two percent
threshold; (3) the three seat limit; and
(4) proportional representation.
The Constitution makes the number of
district representatives the determinant
in arriving at the number of seats
allocated for party list lawmakers, a
formulation which means that any
increase in the number of district
representatives, an as may be
provided by law, will necessarily result
in a corresponding increase in the
number of party list seats . . . ..
Sections 5 (2), Art. VI of the
Constitution is not mandatory, it merely
provides a ceiling for party list seats
in Congress . . Obtaining absolute
proportional
representation
is
restricted by the three-seat-per-party
limit to a maximum of two additional
slots . .
Under the Niemeyer formula, the
number of additional seats to which a
qualified party would be entitled is
determined by multiplying the
remaining number of seats to be
allocated by the total number of votes
obtained by that party and dividing the
product by the total number of votes
garnered by all the qualified parties.
The Niemeyer formula, while no doubt
suitable for Germany, finds no application in the
Philippine setting because of our three seat limit
and the non mandatory character of the twenty
percent allocation. (Ang Bagong Bayani OFW
Labor Party, et al vs. COMELEC, et al. GR
No.147589, June 26, 2001)
V.

CANDIDATES AND CERTIFICATES OF

CANDIDACY

QUALIFICATIONS OF CANDIDATES
A.
National Arts. VI and VII, PC

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1.
President and Vice President
2.
Senators
3.
Congressmen District and Party
List Representatives
B.

Local Sec.39, Local Government Code

Qualifications prescribed by law are
continuing requirements and must be possessed
for the duration of the officers active tenure.
Once any of the required qualifications is lost, his
title to the office may be seasonably challenged.
(Frivaldo vs. COMELEC, 174 SCRA 245 and
Labor vs. COMELEC, 176 SCRA 1)
Residence
In Marcos vs. COMELEC, 248 SCRA 300,
the Supreme Court upheld the qualification of
IRMarcos despite her own declarations in her
certificate of candidacy that she had resided in
the district for only seven months because of the
following:
1.

2.

3.

4.

A minor follows the domicile of his

parents; Tacloban became IRMs
domicile of origin by operation of law
when her father brought the family to
Leyte;
Domicile of origin is lost only when
there is actual removal or change of
domicile, a bonafide intention of
abandoning the former residence and
establishing a new one, and acts
which correspond with the purpose; in
the absence of clear and positive proof
of the concurrence of all these, these
domicile of origin should continue;
The wife does not automatically gain
the husbands domicile because the
term residence in Civil Law does not
mean the same thing in Political Law,
when IRM married Marcos in 1954,
she kept her domicile or origin and
merely gained a new home, not a
domicilium necessarium;
Even assuming that she gained a new
domicile after her marriage and
acquired the right to choose a new one
only after her husband died, her acts
following her return to the country
clearly indicate that she chose

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Tacloban, her domicile of origin, as her

domicile of choice.
In Aquino vs. COMELEC, 248 SCRA 400, the
Supreme Court held that Agapito Aquino
failed to prove that he had established not
just residence but domicile of choice in
Makati. In his certificate of candidacy, he
indicated that he was a resident of San Jose
Concepcion, Tarlac for 52 years, he was a
registered voter of the same district, his birth
of certificate places Conception, Tarlac as
birthplace. Thus, his domicile of origin was
Conception, Tarlac, and his bare assertion of
transfer of domicile from tarlac to Makati is
hardly supported by the facts of the case.
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 state 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 set forth under the law
. . . (Domino vs. COMELEC 310 SCRA 546)
The place where the party actually or
constructively has his permanent home, where
he, no matter where he may found at any given
time, eventually intends to return and remain, i.e.,
his domicile, is that to which the Constitution
refers when it speaks of residence for the
purposes of election law . . .
The registration of a voter in a place other
than his residence of origin is not sufficient to
consider him to have abandoned or lost his
residence. (Perez vs. COMELEC, 317 SCRA
641)

13

The rationale of requiring candidates to

have a minimum period of residence in the area
in which they seek to be elected is to prevent the
possibility of a stranger or newcomer
unacquainted with the conditions and needs of a
community and not identified with the latter from
seeking an elective office to serve that
community . . .
The classification of an area as a highly
urbanized or independent component city, for that
matter, does not completely isolate its residents,
politics, commerce and other businesses from
the entire province, and vice versa, especially
when the city is located at the very heart of the
province itself . .
The residence requirement is rooted in the
desire that officials of districts or localities are
acquainted not only with the metes and bounds
of their constituencies but, more important, with
the constituents themselves, and a very
legalistic, academic and technical approach to
the resident requirement does not satisfy this
simple, practical and common sense national for
the residence requirement. (Torayna vs.
COMELEC 337 SCRA 574)
Philippine citizenship
The lost citizenship may be reacquired
under Sec. 1 of RA 2630, which provides that any
person who had lost his Philippine citizenship by
rendering service to, or accepting commission in,
the Armed Forces of the United States, or after
separation from the Armed Forces of the United
States, acquired United States citizenship by
taking an oath to the Republic of the Philippines
and registering the same with Local Civil Registry
in the place where he resides or last reside in the
Philippines. The said oath of allegiance shall
contain a renunciation of any other citizenship.
(Bengson III vs. HRET, et al. GR No. 142840,
May 7, 2001)
Repatriation results in the recovery of the
original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to
his prior status as a naturalized Filipino citizen.
On the other hand, if he was originally a natural-

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born citizen before he lost his Philippine

citizenship, he will be restored to his former
status as a natural born Filipino. (Bengson,
supra)
Disqualifications
Grounds Under the Omnibus Election Code
A. Any person declared by competent
authority insane or Incompetent
B. Any person sentenced by final judgment
for any of the Following offenses:
1. Insurrection or rebellion
2. Offense for which he was
sentenced to penalty of More than
18 months
3. Crime involving morale turpitude
(Sec. 12, BP 881)

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office (Grego vs. COMELEC, 274 SCRA

481)
C. Those convicted by final judgment for
violating his oath of allegiance to the
Republic.
D. Those with dual citizenship--The phrase
dual citizenship in RA 7160, Sec. 40 (d)
and RA 7854, Sec. 20 must be
understood as referring to dual
allegiance. Consequently, persons with
mere dual citizenship do not fall under this
disqualification. For candidates with dual
citizenship, it should suffice if, upon the
filing of their certificates of candidacy, they
elect Philippine citizenship to terminate
their status as persons with dual
citizenship considering that their condition
is the unavoidable consequence of
conflicting laws of different states.
(Mercado vs. Manzano, 307 SCRA 630)

D. Removal; Insanity or incompetence

declaration of removal by competent
authority

E. Fugitives from justice in criminal or non

political cases.
F. The term includes not only those who flee
after conviction to avoid punishment, but
likewise who, after being changed, flee to
avoid prosecution. (Marquez vs.
COMELEC, 243 SCRA 538)

E. Conviction; unless granted plenary

pardon, amnesty; or Lapse of 5 years
after service of sentence (Sec. 12, BP
881)

G. Permanent residents in foreign country or

those who have the right to reside abroad
and continue to avail of it. (Caasi vs. CA,
191 SCRA 229)

C. A permanent resident to or immigrant to

foreign country Unless he waives such
status (Sec. 68, BP 881)

Grounds under the Local Government Code

Sec. 40
A. Those sentenced by final judgment for an
offense involving moral turpitude or an
offense punishable by imprisonment for at
least one year, within two years after
service of sentence.
B. Those removed from office as a result of
an administrative case.
An elective local official who was removed
from office prior to January 1, 1992 is not
disqualified from running for elective local

H. The insane or feeble minded.

Three consecutive terms limit
The term limit for elective local officials
must be taken to refer to the right to be elected
as well as the right to serve in the same elective
position. Consequently, it is not enough that an
individual has served three consecutive in an
elective local office, he must also have been
elected to the same position for the same
number of times before the disqualification can
apply: (Borja vs. COMELEC, GR No. 133495,
September 3, 1998)

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Conditions for the application of the

disqualification: (1) 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 . . .
A proclamation subsequently declared
void is no proclamation at all and while a
proclaimed candidate may assume office on the
strength of the proclamation of the Board of
Canvassers he is only a presumptive winner who
assumes office subject to the final outcome of the
election protest . .
Voluntary renunciation of a term of office
does not cancel the renounced term in the
computation of the three term limit; conversely
involuntary severance from the office for any
length of time short of the full term provided by
law amounts to an interruption of continuity of
service. (Lonzanida vs. COMELEC, 311 SACRA
602)
1. Under the Revised Administrative Code
Municipal Office
Ecclesiastics (Pamil vs. Teleron, 56
SCRA 413)
Persons receiving compensation
from provincial or municipal funds
Contractors for public works of the
municipality
2. Under the Lone candidate Law RA 8295
Any elective official who has resigned
from his office by accepting an
appointive office to become vacant
due to his resignation; and
Any person who, directly or indirectly
coerces,
bribes,
threatens,
harasses, intimidates or actually
causes, inflicts or produces any
violence,
injury,
punishment,
torture,
damage,
loss
or
disadvantages to any person or
persons aspiring to become a
candidate or that of the immediate
member of his family, his honor or

15

property that is meant to eliminate

all other potential candidates.
Certificates of Candidacy
No person shall be eligible for any elective
public unless he files a sworn certificate of
candidacy within the period fixed by the Omnibus
Election Code.
Deadline
Certificate of candidacy must be filed not
later than the day before the date for the
beginning of the campaign period. (Sec. 7,
RA 7166)
A certificate filed beyond the deadline is
not valid. (Gador vs. COMELEC, 95
SCRA 431)
Prohibition against multiple candidacies
A person who files a certificate of
candidacy for more than one office should
be eligible for any of them. (Sec 73, BP
881)
Before the deadline for filing certificates
he may withdraw all expect one, declaring
under oath the office for which he desires
to be eligible and cancel the certificate of
candidacy for other office or offices. (Go
vs. COMELEC, GR No. 147741, May 10,
2001)
Forms
Oath
The certificate must be sworn. (Sec. 73,
BP 881)
The election of a candidate cannot be
annulled because of formal defects in his
certificate, such as held of oath (Guzman
vs. Board of Canvassers, 48 Phil 211)
Name
A candidate shall use his baptismal name
or full name, the name registered with the

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civil registrar or any other name allowed

by law.
He may include one nickname or stage
name by which he is generally known.
When two or more candidates for the
same office have the same name or
surname, each shall state his paternal and
maternal surnames, except the incumbent
(See. 71, BP 881)
Place and Period of Filling
For President, Vice President and
Senators: main office of the COMELEC in
Manila, 5 copies, not later than 90 days
before date of election.
For Members
Representatives:

of

the

House

of

Provincial legislative districts Provincial

Election Supervisor of the Province
concerned
NCR legislative districts Regional
COMELEC Directors
Legislative districts in cities outside NCR
City Election registrar concerned
For provincial offices Provincial Election
Supervisor of the province concerned.
City and Municipal offices City or
Municipal Election Registrar concerned.
The certificates of candidacy of Members
of the House of Representatives,
Provincial, city or municipal officials shall
be filed in 5 copies not later than 45 days
before the election.
The certificate of candidacy shall be filed
by the candidate personally or his duly
authorized representative. No certificate of
candidacy shall be filed or accepted by
mail, telegram or facsimile.
The evident purpose of the law in
requiring the filing of certificate of

candidacy and in fixing the time limit

therefore are; (1) to enable the voters to
know, at least sixty days before the
regular election, the candidates among
whom they are to make the choice, and
(2) to avoid confusion and inconvenience
in the tabulation of the votes to the duly
registered candidates, there might be as
many persons voted for as there are
voters, and votes might be cast even for
unknown or fictitious persons, as mark to
identify the votes in favor of a candidate
for another office in the same election.
(Miranda vs. Abaya, 311 SCRA 617)
Duty of COMELEC
Subject to its authority over nuisance
candidates and its power to deny due
course or cancel a certificate of
candidacy, the rule is that the COMELEC
shall have only the ministerial duty to
receive and acknowledge receipt of the
certificates of candidacy. (Sec. 78, BP
881)
Effect Filing
An appointive public official is considered
resigned upon filing of his certificate. (Sec.
66, BP 881;Sanciangco vs. Rono, 137,
SCRA 671).This includes an employs of a
GOCC organized under the Corporation
Code (Without original charter), since the
law makes no distinction. (PNOC EDC
vs. NLRC, 222 SCRA 831)
Any elective official, whether national or
local who has filed a certificate of
candidacy for the same or any other office
shall not be considered resigned from
office. (sec. 26, COMELEC Resolution
No. 3636, Rules and Regulations
Implementing RA 9006)
Withdrawal of Certificate of Candidacy
Form written declaration under oath. There
was no withdrawal of candidacy for the
position of mayor where the candidate,
before the deadline for filing certificates of

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candidacy, personally appeared in the

COMELEC office, asked for his certificate
of candidacy and intercalated the word
vice before the word mayor and the
following day wrote the election registrar
saying that his name be included in the list
of official candidates for mayor. (Vivero vs.
COMELEC, L 81059, Jan 12, 1989)
Since his certificate of candidacy for the
office of board member was filed by his
party, and the said party had withdrawn
the nomination which withdrawal was
confirmed by the candidate under oath,
there was substantial compliance with
Sec. 73. His filing under oath within the
statutory period of his individual certificate
for candidacy for the separate office of
mayor was, in effect, a rejection of the
party nomination on his behalf for the
office of board member. (Ramirez vs.
COMELEC, L-81150, Jan 12, 1992)
Substitution of Candidacy Sec. 77 BP 881;
Sec. 12, RA 9006
If after the last day for filing certificates, a
candidate dies, withdraws or is
disqualified, he may be substituted by a
person belonging to his party not later
than the mid day of election. Said
certificate may be filled with any board of
election inspectors in the political
subdivision where he is an electorate of
the country, with the COMELEC.
(Domingo vs. City Board of Canvassers,
GR No. 105365, June 2, 1992)
Even if the withdrawal was not under oath,
the certificate of the substitute cannot be
annulled after the election. Such
technicality of the original candidates
withdrawal of his certificate of candidacy
cannot be used to override the peoples
will in favor to the substitute candidate.
The legal requirement that the withdrawal
be under oath will be held to be merely
directory and the candidates failure to
observe the requirement is considered a
harmless error. Hence the bona fide
certificate of the substitute candidate
cannot be assailed. The votes in his favor

17

should be counted. (Villanueva vs.

COMELEC, 140 SCRA 352)
In case of valid substitutions after the
official ballot have been printed, the votes
cast for the substituted candidates shall
be considered as many 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 substitute candidates if they are
voting for the latter. (See. 12, RA 9006)
There is nothing in the Constitution or
statute which requires as 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.
(Sinaca vs. Mula, 315 SCRA 266)
A valid certificate of candidacy is likewise
an indispensable requisite in the case of a
substitution of a disqualified candidate
under the provisions of Sec. 77 of the
Election Code . . . The concept of a
substitute presupposes the existence of
the person to be substituted, for how can
a person take the place of somebody who
does not exist or who never was...
A disqualified candidate may only be
substituted if he had a valid certificate of
candidacy in the first place because, if the
disqualified candidate did not have a valid
and seasonably filed certificate of
candidacy, he is and was not a candidate
at all. If a person was not a candidate, he
cannot be substituted under Sec. 77 of the
Code . . . .
While Sec. 78 of the Election Code
enumerated the occasion where a
candidate may validly substitute 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 (Miranda vs.
Abaya, 311 SCRA 617)

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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. Sec.
12, RA 9006. amending Sec. 12 of RA
8436)
DISQUALIFICATION OF CANDIDATES
1. Grounds
Violation of Omnibus Election Code Sec. 68
Giving money or other material
consideration to influence voters
or public officials performing
electoral functions
Committing acts of terrorism to
enhance his candidacy
Spending in his election campaign in
excess of the amount allowed by
the Code
Soliciting, receiving or making any
prohibited contribution
Violations of Secs. 80, 83, 85, 86 and
261, paragraphs d, e, k, v and cc,
sub-paragraph 6.
Nuisance candidate Sec. 69
A petition to disqualify a candidate for councilor
for failure to indicate in his certificate of
candidacy the precinct number and the barangay
as a registered voter cannot be considered a
petition to disqualify him for being a nuisance
candidate, since his certificate was not filed to
make mockery of the election or to confuse the
voters. (Jurilla vs. COMELEC, 232 SCRA 758)
Falsity of material representation in certificate
of candidacy. Sec. 78
The COMELEC has jurisdiction over a petition to
disqualify a candidate for congressman for
ineligibility before he has been proclaimed and
has assumed office (Marcos vs. COMELEC, 248
SCRA 300; Aquino vs. COMELEC, 248 SCRA
400)
2.
Procedure
candidates

for

disqualification

of

The petition shall be filed by any

registered candidate for the same
Office within 5 days from the last day
of filing of certificates of Candidacy.
(Secs. 5a and 7, RA 6646)
Under the election laws and the
COMELEC Rules of Procedure, any
voter may file a petition to disqualify a
candidate on grounds provided by law.
(Torayno vs.COMELEC, 337 SCRA 574)
The fact that no docket fee was initially
paid is not fatal. The Procedural defect as
cured by the subsequent payment of the
docket fee. (Sunga vs. COMELEC, 228
SCRA 76)
A petition filed after the election is filed out
of time. (Loong vs.COMELEC, 216 SCRA
769)
Since the filing by facsimile transmission
is not sanctioned and a facsimile copy is
not an original pleading, a petition for
disqualification should be deemed filed
upon the filing of the original petition.
(Garvida vs. Sales, 271 SCRA 764)
Where a qualified candidate was replaced
on the day before the election, a petition
to disqualify the replacement filed on
election day should be entertained, as it
was impossible to file the petition earlier.
(Abella vs. Larrazabal, 180 SCRA 509)
The COMELEC may motu propio refuse
to give due course or cancel a
certificate of candidacy. (Sec. 69, BP
881)
The proceeding shall be summary.
(Nolasco vs. COMELEC, 275 SCRA
762)
The COMELEC can decide a
disqualification case directly without
referring it to its legal officers for
investigation. (Nolasco, supra)

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The decision shall be final and

executory after 5 days from receipt
unless stayed by the Supreme Court
[Secs. 5(e) and 7, RA 6646]
EFFECTS OF DISQUALIFICATION CASE
After final judgment -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.
Before final judgment 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 the Court or Commission
shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the
complainant or any intervenor, may, during the
tendency thereof, order the suspension of the
proclamation of such candidate whenever the
evidence of guilt is strong. (Sec. 6, RA 6646)
The purpose of a disqualification
proceeding is to prevent the candidate from
running or, if elected, from serving, or to
prosecute him for violation of election laws. The
fact that a candidate has been proclaimed and
had assumed the position to which he was
elected does not divest the COMELEC of
authority and jurisdiction to continue the hearing
and eventually decide the disqualification. The
COMELEC should not dismiss the case simply
because the respondent has been proclaimed.
(Sunga vs. COMELEC, 288 SCRA 76 and
Lonzanida vs. COMELEC, 311 SCRA 617)
Sec. 6 of RA 6616 authorizes the
continuation of proceedings for disqualification
even after the elections if the respondent has not
been proclaimed. (Perez vs. COMELEC, 317
SCRA 641)
A disqualification case may have two
aspects, the administrative, which required only a
preponderance of evidence to prove
disqualification, and the criminal, which
necessitates proof beyond reasonable doubt to
convict.

19

There is no provision in RA 6646 that

treats of a situation where the complaint for
disqualification is filed after the election. . . .
Second paragraph of paragraph 2 of Res.
No. 2050 provides that where a complaint is filed
after the election but before proclamation, as in
this case, the complaint must be dismissed as a
disqualification case but shall be referred to the
Law Department for preliminary investigation.
Why there is a difference between a
petition for disqualifications before and after the
election proceeds from the fact that 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 . . . (Bagatsing vs.
COMELEC, 320 SCRA 817)
The COMELEC can legally suspend the
proclamation of the winning candidate although
he received the winning number of votes.(Labo
vs. COMELEC, 211 SCRA 297).
The use of the word may, indicates that
the suspension of the proclamation is merely
directory and permissive in nature and operates
to confer discretion. What is made mandatory is
the continuation of the trial and hearing of the
action, inquiry or protest. Since the suspension of
the proclamation is merely permissive, the
proclamation of a candidate is valid, if the
COMELEC did not suspend his proclamation.
(Grego vs. COMELEC, 274 SCRA 481)
Under the same provision, intervention
may be allowed in proceedings for
disqualification even after election if there has yet
no final judgment rendered. (Mercado vs.
Mazano, 307 SCRA 630)
Where the votes cast for a nuisance
candidate whose disqualification had not yet
become final on election day were tallied
separately, they should be counted in favor of the
petitioner. (Bautista vs. COMELEC, 298, SCRA
480)

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20

THE LONE CANDIDATE LAW

The Lone Candidate Law is RA 8295,
enacted June 6, 1997. Section 2 thereof provides
the upon the expiration of the deadline for the
filing of certificate of candidacy in a special
election called to fill a vacancy in an elective
position other than for President and VicePresident, when there is only one (1) qualified
candidate for such position, the lone candidate
shall be proclaimed elected to the position by
proper proclaiming body of the COMELEC that
he is the only candidate for the office and is
thereby deemed elected.
Section 3 thereof also provides that the
lone candidate so proclaimed shall assume office
not earlier than the scheduled election day, in the
absence of any lawful ground to deny due course
or cancel the certificate of candidacy in order to
prevent such proclamation.

VI. CAMPAIGN; ELECTION PROPAGANDA;

CONTRIBUTIONS AND EXPENDITURES
Election campaign or partisan political
activity refers to an act designed to promote the
election or defeat of a particular candidate or
candidates for public office. (Sec. 79, BP 881)
a. If done for the purpose of enhancing the
chances of aspirants for nomination for
candidacy to a public office by a political
party, etc, it shall not be considered as
election campaign or partisan political
activity.
b. It shall be unlawful for any person or any
party to engage in election campaign or
partisan political activity except during the
campaign period.
c. Members of the Civil Service to engage,
directly or indirectly, in any electioneering
or partisan political campaign.
A.

Nomination of candidates

1. President, Vice-President and Senators

not earlier than 165 before election date
2. Congressmen, provincial, city or municipal
officials not earlier than 75 days before
election day
B.

Campaign period
1. President, Vice-President and Senators
90 days before election day
2. Congressmen, provincial, city and
municipal officials 45 days before
election day.

C.

Lawful propaganda
1. Forms
2. Pamphlets, leaflets, cards, decals,
stickers and written or printed materials
not more than 8 inches by 14 inches
3. Handwritten/printed letters
4. Cloth, paper or cardboard, posters
measuring, not more than 2 feet by 3 feet
3 by 8 ft. allowed in announcing at the site
on the occasion of a public meeting or
rally, may be displayed 5 days before the
date of rally but shall be removed within
24 hours after said rally.
5. Paid print advertisements: page in
broadsheets and pages in tabloids
thrice a week per newspaper, magazine or
other publication during the campaign
period. (Sec. 4, RA 9006)
6. Broadcast Media(i.e., TV and radio)
National Positions: 120 minutes for TV,
180 minutes for radio / Local Positions: 60
minutes for TV, 90 minutes for radio
7. Other forms of election propaganda not
prohibited by the Omnibus Election Code
and RA 9006, and authorized by the
COMELEC.

Requirement

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1. Any published or printed political matter or

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 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.
2. If the broadcast is given free or charge by
the radio or television station, it shall be
identified by the word airtime for this
broadcast was provided free of charge by
followed by the true and correct name and
address of the broadcast entity.
3. Print,
broadcast
or
outdoor
advertisements donated to the candidate
or political party shall 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. (Sec. 4, RA
9006)
D.

21

valid (Adiong vs. COMELEC, 244 SCRA

272)
2. Mass media may report news relating to
candidates, and mass media practitioners
may give their opinion regarding
candidates. (National Press Club vs.
COMELEC, 207 SCRA 1)
E.

1.
An application for permit for a rally
shall not be denied except on the
ground that a prior written
application for the same purpose has been
approved. A denial is
appealable to the provincial election supervisor
or
COMELEC. (Sec. 87, BP
881)
2.
It is unlawful to give or accept
transportation, food, drinks or things of
value within 5 hours before and
after a public rally, before election day
and on election day. (Sec. 89 BP
881)
F.

Prohibited Campaign
1. Public
exhibition
of
a
movie,
cinematograph or documentary portraying
the life or biography of a candidate during
campaign period.\
2. Public
exhibition
of
a
movie,
cinematograph or documentary portrayed
by an actor or media personality who is
himself a candidate;
3. Use of airtime for campaign of a media
practitioner who is an official of a party or
a member of the campaign staff of a
candidate or political party.

Scope
1. Prohibiting the posting of decals and
stickers except in the common posting
area authorized by the COMELEC is not

Rallies

Prohibited donations
It is prohibited for any candidate,
his spouse, relative within second degree
of consanguinity or affinity, or
representative to make any contribution
for any structure for public use or for use
of any religious or civic organization
except the normal religious dues and
payment for scholarships established and
school contributions habitually made
before the campaign period. (Sec. 104,
BP 881)

G.

Prohibited contributions
No political contribution shall be
made by the following:
1.
Public or private financial
institutions
2.
Public utilities and those who
exploit natural resources
Thus, where an operator of
a public utility disguised a
contribution to a candidate for
governor as loan, the promissory

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note is void: (halili vs. Court of

Appeals, 83 SCRA 633)
3.
Persons who hold contracts or subcontracts to supply the government
with goods and services.
4.
Persons
granted
franchises,
incentives, exemptions or similar
privileges by
the government
5.
Persons granted loans in excess of
P25, 000 by the government or any of
its subdivisions or instrumentalities
6.
Schools which received grants of
public funds of at least P100,000
7.
Employees in the Civil Service or
members of the Armed Forces.
8.
Foreigners (Sec. 95 , Bp 881)
9.
Corporations (sec. 36 (9), Corp.
Code)
H.

Equal Access to Media Time and Space

All registered parties and bonafide
candidates shall have equal access to
media time and space . The following
guidelines may be amplified on by the
COMELEC.
1.
No franchise or permit to operate a
radio or television shall be granted or
issued, suspended or cancelled
during the election period.
2.
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 employers, or
shall take a leave of absence from his
work as such during the campaign. And
that any media practitioner who is an
official candidate of a political party
or member of the campaign staff of a
candidate or political party
shall not use his media time and space to
favor any candidate or political party.

I.
Limitation on expenses Sec. 13, RA
7166
1.
Candidates

22

a.
President
and
vice
president P10 per voter
b.
Other candidates P3 per
voter in his constituency
c
Candidate without political
party P5 per voter
d.
Party/organization
and
coalition participating in the party
list
system P5 per voter
2.
Political party and coalition P5
per voter in the constituency where it has
candidates. (sec. 13, RA 7166)
J.
Statement
of
contributions
and
expenditures
1.
Filing
a.
every
candidate
and
treasurer of political party shall file within 30
days after election day a statement of
contributions and expenditures.
b.
No persons elected shall
assume office until he and his
political party has filed the required
statements
2.

Penalties
a.
First
Offense

administrative fine from P 1,000 to

P30, 000
b.
Subsequent offense
i.
Administrative fine
from P2,000 to P60, 000
ii.
Perpetual
disqualification to hold public office (Sec. 14,
RA 7166)
3.

Effect of withdrawal
A candidate who withdraws
his certificate of candidacy must
still file a statement of contributions
and expenditures, for the law
makes no distinction. (Pilar vs.
COMELEC, 245 SCRA 759)

VII. ELECTION; BOARD OF ELECTION

INSPECTORS (BEI); WATCHERS
KINDS OF ELECTION

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1.
General election is one provided for by
law for the election to offices throughout
the State, or certain subdivisions thereof,
after the expiration of the full term of
former
officers.
2.
Special Election is one provided for by law
to fill vacancy in office before the expiration of the
full term for which the incumbent was elected or
one fixed by the COMELEC due to
postponement or suspension of the election or
the failure to elect.
3.
Recall election is an election by means of
which voters decide whether they should retain
their local official or elect his replacement.
(Claudio vs. COMELEC, 331 SCRA 388)
ELECTION PERIOD
Unless otherwise fixed by the COMELEC
in special cases, the election period shall
commence 90 days before the day of the day of
the election and shall end 30 days thereafter.
[Sec. 9, Art. IX C, PC]
DATE OF ELECTION
The regular election of the President,
Vice-President, Senators and Members of the
House of Representatives and local officials,
except barangay officials, shall be on the second
Monday of May once every three years. In
accordance with the constitutional policy to
synchronize elections, the regular election for
national and local officials is now held
simultaneously. (RA 7166) Under 6679, regular
elections for barangay officials shall be held once
every five years.
ELECTION OF SANGGUNIANG MEMBERS
1.
For provinces with two or more legislative
district the elective members of
Sangguniang Panlalawigan (Spn) shall be
elected by legislative districts.
2.
For provinces with only one legislative
district the COMELEC shall divide
them into districts for purposes of electing
the members of the SPn;
3.
For cities in Metro Manila Area, Cebu City,
Davao City or any other city with
two or more legislative district governed
by Secs. 2 and 3 of RA 6686.
4.
For municipalities in Metro Manila the
COMELEC shall divide them into two

23

districts by barangay for purposes of

electing members of the SB.
POSEPONEMENT OF ELECTION
When for any serious cause such as
violence, terrorism, loss or destruction of election
paraphernalia or records, force majeure, and
other analogous cases of such nature that the
holding of a free, orderly and honest election
should become impossible in any political
subdivision, the COMELEC, motu propio 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.
(Sec. 5, BP 881)
An election officer alone, or even with the
agreement of the candidates, cannot validly
postpone or suspend the election. (Basher vs.
COMELEC, 330 SCRA 736). . . It is essential to
the validity of the election that the voters have
notice in some form, either actual or constructive,
of the time, place and purpose thereof (Basher
vs. COMELEC, supra)
A petition to postpone elections should be
addressed to the COMELEC, subject to the
remedy of review provided for in Art IX A
Section 7.
In fixing the date of special elections the
COMELEC should see to it that:
1.
It should not be later than thirty (30) days
after the secession of the cause of the
Postponement of suspension of the
election or a 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.
(Pangandaman vs. COMELEC, 319 SCRA
283)
A special election is not valid if notice of
its date and of the transfer of the precincts was
given less than a day before, since the voters
were deprived of the opportunity to vote. (hassan
vs. COMELEC, 264 SCRA 125)
FAILURE OF ELECTION

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1.
Sec.6 the OEC contemplates three
instances when the COMELEC may declare a
failure of election and call for the holding of a
special election: (1) when thee election in any
polling place has not been held on the date fixed
on account of force majeure, violence, terrorism,
fraud and other analogous cases, (2) when the
election in any polling place has been suspended
before the hour fixed by law for the closure of the
voting; and (3) 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. (Soliva et al
vs. COMELEC, GR No. 141723, April 20,2001)
2.
The power to throw out or annul an
election should be exercised with the utmost care
and only under circumstances which
demonstrate beyond doubt either that the
disregard of the law had been so fundamental or
so pertinent 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
been prevented by viiolence, intimidation and
threats from exercising their franchise There is
failure of elections only when the will of the
electorate has been muted and cannot be
ascertained. (Benito vs. COMELEC, GR No.
134913,January 19,2001)
3.
A special election should be held if the
ballot box in the precinct was burned.(Hassan vs.
COMELLEC,264 SCRA 125)
4.
The destruction of the copies of the
election returns intended for the board of
canvassers is not a ground for the declaration of
failure of election as other copies of the returns
can be used (Sardea vs. COMELEC,225 SCRA
374)
5.
The fact that less than 25% of the
registered voters voted does not constitute failure
of election, since voting took place. (Mitmug vs.
COMELEC,230 SCRA 54)
6.
Lack of notice of the date and time of the
canvass, fraud, violence, terrorism, and
analogous causes, such as disenfranchisement
of voters, presence of flying voters, and lack of
qualifications of the members of the Board of

24

Inspectors are not grounds for declaration of

failure of election but for an election protest.
(Borja vs. COMELEC,260 SCRA 604)
7.
The fact that the names of some
registered voters were omitted from the list of
voters, strangers voted for some of the registered
voters, a candidate was credited with less votes
than he received, the control data of some
election returns were filled up, the ballot boxes
were brought to the municipal hall without
padlock and seals, and that there was a delay in
the delivery of election returns are not grounds
for the declaration of failure of election.
(Canicosa vs. COMELEC, 282 SCRA 512)
8.
An election cannot be annulled because
of the illegal transfer of a precinct less than 45
days before the election if the votes of those who
were not able to vote will not alter the result.
(Balindong vs. COMELEC, 260 SCRA 494)
9.
There is no reglementary period for filing a
petition for annulment of an election if there has
as yet been no proclamation. (Loong vs.
COMELEC, 257 SCRA 1)
10. The COMELEC may decide a petition to
declare a failure of election en banc at the first
instance, since it is not a pre-proclamation case
or an election protest. (Borja vs. COMELEC, 260
SCRA 604)
In petitions to declare a failure of election on the
ground of fraud, the COMELEC may
conduct a technical examination of
election documents and compare and
analyze the signatures and fingerprints of
the voters. (Loong vss. COMELEC,257
SCRA 1)
SPECIAL ELECTION TO FILL UP VACANCY
1.
In case of permanent vacancy in
Congress at least one year before the expiration
of the term, the COMELEC shall hold a special
election not earlier than 90 days after the
occurrence of the vacancy.
2.
A vacancy in the Senate will be filled up at
the next regular election.(Section 4,RA 7166)

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BOARD OF ELECTION INSPECTORS (BEI)

The Board of Election Inspectors shall be
composed of a chairman and two
members, all of whom are public school
teachers.
If there are not enough public school teachers,
teachers in private schools, employees in
the civil service, or other citizens of known
probity and competence may be
appointed. (Section 13, RA 6646)
WATCHERS
Number
1.
Official watchers
Every registered party or coalition
of parties and every candidate
is entitled to one watcher per
precinct
and
canvassing
counter.
Candidates for the local legislature
belonging to the same party are
entitled collectively to one
watcher.
Six principal watchers from 6
accredited
major
political
parties shall be recognized.
(Section 26, 7166)
2.
Other watchers
a. The accredited citizens arm is
entitled to a watcher in every precinct.
b. Other civic organizations may be
authorized to appoint one watcher in
every precinct. (Section 180, BP
881)
Important rights of watchers
1.
All watchers
a. To stay inside the precinct
b. To inform themselves of the
proceedings
c. To file a protest against any
irregularity
d. To obtain a certificate of the
number of votes cast for each
candidate
(Section
179,
BP881)
2.
Citizens Arm
To be given a copy of the election
return to be used for the conduct of an
unofficial count. (Section 1, RA 8045)
VIII. CASTING OF VOTES

25

1.
The chairman of the Board of Election
Inspectors should sign each ballot at the back.
The omission of such signature does not affect
the validity of the ballot.(Libanan vs HRET,283
SCRA 520) Under the rules prevailing during the
1997 Barangay Elections, the failure to
authenticate the ballots shall no longer be cause
for the invalidation thereof. (Malabaguio vs.
COMELEC,346 SCRA 699)
2.
A voter who was challenged on the
ground that he has been paid for the vote or
made a bet on the result of the election will be
allowed to vote if he takes an oath that he did not
commit the act alleged in the challenge. (Section
200,BP881)
3.
An illiterate or physically disabled voter
may be assisted by a relative by affinity or
consanguinity within the fourth degree or any
person of his confidence who belongs to the
same household or any member of the Board of
Election Inspectors. (Section 196, BP881)
4.
It is unlawful to use carbon paper, paraffin
paper or other means for making a copy of the
contents of the ballot or to use any means to
identify the ballot.(Sec. 195,BP881). A ballot
prepared under such circumstances should not
be counted. (Gutierrez vs. Aquino, Feb,26,1959)

ABSENTEE VOTING
1.
Members of the Board of Election
Inspectors and their substitutes may vote in the
precinct where they are assigned. (Section 169,
BP 881)
2.
Absentee voting for President, V-president
and Senators are allowed for members of the
AFP, PNP, and other government employees
assigned in connection with the performance of
election duties to places where they are not
registered. (Section 12, RA 7166)
RA NO. 9189 AN ACT PROVIDING FOR A
SYSTEM OF OVERSEAS ABSENTEE VOTING
BY QUALIFIED CITIZENS OF THE
PHILIPPINES ABROAD
Sec. 5. Disqualification. The following shall be
disqualified from voting under this Act:

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a) Those who have lost their Filipino

citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their
Philippine citizenship and who have pledge
allegiance to a foreign country;
c) Those who have committed and are
convicted in a final judgment by a court or
tribunal of an offense punishable by
imprisonment of not less than one (1) year,
including those who have committed and
been found guilty of Disloyalty as define
under Article 137 of the Revised Penal
Code, such disability not having been
removed by plenary pardon or amnesty:
Provided, however, That any person
disqualified to vote under this subsection shall
automatically acquire the right to vote upon
expiration of five(5) years after service of
sentence; Provided further, That the
Commission may take cognizance of final
judgments issued by foreign courts or
tribunals only on the basis or reciprocity and
subject to the formalities and processes
prescribed by the Rules of court on execution
of judgments;
d) An immigrant or a permanent resident who is
recognized as such in the host country,
unless he/she execute, upon registration, an
affidavit prepared for the purpose by the
Commission declaring that he/ she shall
resume actual physical permanent residence
in the Philippine not later than three(3) years
from approval of his/her registration under
this Act. Such affidavit shall also state that
she/ he has no applied for citizenship in
another country. Failure to return shall be
cause for the removal of the name of
immigrant or permanent resident from the
National Registry of Absentee Voters and
his/her permanent disqualification to vote in
absentia.
e)

Any citizen of the

Philippines abroad previously declared insane
or incompetent by competent authority in the
Philippines or abroad, as verified by the
Philippine embassies, consulates or foreign
service establishments concerned, unless
such competent authority subsequently

26

certifies that such person is no longer insane

or incompetent.
SEC. 6 Personal Overseas Absentee
Registration. Registration as an overseas
absentee voter shall be done in person.
Qualified citizens of the Philippines abroad who
failed to register under Republic Act No. 8189,
otherwise known as The Voters Registration Act of
1996, may personally apply for registration with
the Election Registration Board of the city or
municipality where they were domiciled
immediately prior to their departure from the
Philippines, or with the representative of the
Commission of the Philippine embassies,
consulates
and
other
foreign
service
establishments that have jurisdiction over the
locality where they temporarily reside. Subject to
guidelines herein provided, the Commission is
hereby authorized to prescribe procedures for
overseas absentee registration pursuant to the
provisions of Republic Act No. 8189, whenever
applicable, taking into strict consideration the time
zones and the various periods and processes
herein provided for the proper implementation of
this Act. The embassies, consulates and other
foreign service establishments shall transmit within
five (5) days from receipt the accomplished
registration forms to the Commission after which
the Commission shall coordinate with the Election
Officer of the city or municipality of the applicants
stated residence for verification, hearing and
annotation in the permanent list of voters.
All applications for the May 2004 elections
shall be filed with the Commission not later than
two hundred eighty (280) calendar days before the
day of elections. For succeeding elections, the
Commission shall provide for the period within
which applications to register must be filed.
In the case of seafarers, the Commission
shall provide a special mechanism for the time and
manner of personal registration taking into
consideration the nature of their work.
6.1 Upon receipt of the application for
registration, the Election Officer shall
immediately set the application for
hearing, the notice of which shall be

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posted in a conspicuous place in the

premises of the city or municipal
building of the applicants stated
residence for at least one (1) week
before the date of the hearing. The
Election Officer shall immediately
furnish a copy of the application to the
designated representatives of political
parties and other accredited groups.
6.2 If no verified objection to the
application is filed, the Election Officer
shall immediately forward the
application to the Election Registration
Board, which shall decide on the
application within one (1) week from
the date of hearing without waiting for
the quarterly meeting of the Board.
The applicant shall be notified of the
approval or disapproval of his/her
application by registered mail.
6.3 In the event that an objection to the
application is filed prior to or on the
date of hearing, the Election Officer
shall notify the applicant of said
objection by registered mail, and
closing therein copies of affidavits or
documents submitted in support of the
objection filed with the said Election
Officer, if any. The applicant shall
have the right to file his counteraffidavit by registered mail, clearly
stating therein facts and defenses
sworn before any officer in the host
country authorized to administer
oaths.
6.4 The application shall be approved or
disapproved based on the merits of
the objection, counter-affidavit and
documents submitted by the party
objecting and those of the applicant.
6.5 A Certificate of Registration as an
overseas absentee voter shall be
issued by the Commission to all
applicants whose applications have
been approved, including those
certified as registered voters. The
Commission shall include the

27

approved applications in the National

Registry of Absentee Voters.
6.6 If the application has been approved,
any interested party may file a petition
for exclusion not later than two
hundred ten (210) days before the
day of elections with the proper
municipal or metropolitan trial court.
The petition shall be decided within
fifteen (15) days after its filing on the
basis of the documents submitted in
connection therewith. Should the
court fail to render a decision within
the prescribed period, the ruling of the
Election Registration Board shall be
considered affirmed.
6.7 If the application has been approved,
the applicant or his authorized
representative shall, within a period of
five (5) days from receipt of the notice
of this approval, have the right to file a
petition for inclusion with the proper
municipal or metropolitan trial court.
The petition shall be decided within
five (5) days after its filing on the
basis of documents submitted in
connection therewith.
Qualified citizens of the Philippines
abroad, who have previously registered as voters
pursuant to Republic Act No. 8189 shall apply for
certification as absentee voters and for inclusion
in the National Registry of Overseas Absentee
Voters, with a corresponding annotation in the
Certified Voters List.
Sec. 7. System of Continuing
Registration. The Commission shall ensure
that the benefits of the system of continuing
registration are extended to qualified overseas
absentee voters. Towards this end, the
Commission shall optimize the use of existing
facilities, personnel and mechanisms of the
various government agencies for purposes of
data gathering, data validation, information
dissemination and facilitation of the registration
process.

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Pre-departure programs, services and

mechanisms offered and administered by the
Department of Foreign Affairs, Department of
Labor and Employment, Philippine Overseas
Employment Administration, Overseas Workers
Welfare Administration, Commission on Filipinos
Overseas and other appropriate agencies of the
government shall be utilized for purposes of
supporting the overseas absentee registration
and voting processes, subject to limitations
imposed by law.
Sec.8 Requirements for Registration.
Every Filipino registrant shall be required to
furnish the following documents:
a.)

b.)

A valid Philippine
passport. In the absence of a valid
passport, a certification of the
Department of Foreign Affairs that
it has reviewed the appropriate
documents submitted by the
applicant and found them sufficient
to warrant the issuance of a
passport, or that the applicant is a
holder of a valid passport but is
unable to produce the same for a
valid reason;
Accomplished
registration from prescribed by the
commission
containing
the
mandatory information:
(i) Last know residence of the
applicant in the Philippines before
leaving for abroad;
(ii) Address of applicant abroad, or
forwarding address in the case
of seafarers;
(iii) Where voting by mail is
allowed, the applicants mailing
address outside the Philippines
where the ballot for absentee
voters will be sent, in proper
cases; and
(iv) Name and address of
applicants
authorized
representative
in
the
Philippines for purposes of

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Section 6.7 and Section 12

hereof.
c.)

In the case of immigrants and

permanent
residents
not
otherwise disqualified to vote
under this Act, an affidavit
declaring the intention to
resume
actual
physical
permanent residence in the
Philippines not later than three
(3) years after approval of
his/her registration as an
overseas absentee voter under
this Act. Such affidavit shall
also state that he/she has not
applied for citizenship in
another country.
The Commission may also
require additional data to
facilitate
registration
and
recording. NO information other
than those necessary to
establish the identity and
qualification of the applicant
shall be required.

Sec. 11 Procedure for Application to Vote in

Absentia.Every qualified citizen to the Philippines abroad
whose application for registration has been
approved, including those previously registered
under Republic Act No. 8189, shall, in every
national election, file with the officer of the
embassy, consulate or other foreign service
establishment authorized by the Commission, a
sworn written application to vote in a form
prescribed by the Commission. The authorized
officer of such embassy, consulate or other
foreign service establishment shall transmit to the
Commission the said application to vote within
five (5) days from receipt thereof. The application
form shall be accomplished in triplicate and
submitted together with the photocopy of his/her
overseas absentee voter certificate of
registration.
Every application to vote in absentia may be
done personally at, or by mail to the embassy,

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consulate or foreign service establishment, which

has jurisdiction over the country where he/she
has indicated his/her address for purposes of th
elections.
Consular and diplomatic services rendered in
connection with the overseas absentee voting
processes shall be made available at no cost to
the overseas absentee voter.
Sec. 12 . Verification and Approval of
Application to Vote.All applications shall be acted upon by the
Commission upon receipt thereof, but in no
case later than one hundred fifty (150) days
before the day of elections. In the event of
disapproval of the application, the voter or his
authorized representative may file a Motion for
Reconsideration with the Commission
personally, or by registered mail, within ten (10)
days from receipt of the notice of disapproval.
The Commission shall act within five (5) days
from receipt of such Motion for Reconsideration
and shall immediately notify the voter of its
decision. The decision of the Commission shall
be final and executory.
Sec. 16. casting and Submission of Ballot.16.1 Upon receipt by7 the designated officer of
the embassy, consulate and other foreign
service establishments of the ballots for
overseas absentee voters, voting
instruction, election forms and other
paraphernalia, he/she shall make them
available on the premises to the qualified
overseas absentee voters in their
respective jurisdiction during the thirty
(30 ) days before the day of elections
when overseas absentee voters may cast
their vote. Immediately upon receiving it,
the overseas voter must fill-out his/her
ballot personally, in secret, without leaving
the premises of the embassies,
consulates and other Foreign Service
establishments concerned.
16.2 The overseas absentee voter shall
personally accomplish his/her ballot at
the embassy, consulate or other foreign
service
establishment
that
has

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jurisdiction over the country where

he/she temporarily resides or at any
polling place designated and accredited
by the Commission.
16.3 The overseas absentee voter shall cast
his ballot, upon presentation of the
absentee voter identification card issued
by the Commission, within thirty (30)
days before the day of elections. In the
case of seafarers, they shall cast their
ballots anytime within sixty (60) days
before the day of elections. In the case of
seafarers, they shall cast their ballots
anytime within sixty (60) days before the
day of elections as prescribed in the
Implementing Rules and Guidelines.
16.4 All accomplished ballots received shall
be placed unopened inside sealed
containers and kept in a secure place
designated by the Commission.
16.5 The embassies, consulates and other
foreign service establishments concerned
shall keep a complete record of the
ballots for overseas absentee voters,
specifically indicating the number of
ballots they actually received, and in
cases where voting by mail is allowed
under Section 17 hereof, the names and
addresses of the voters to whom these
ballots were sent, including proof of
receipt thereof. In addition, the
embassies, consulates and other foreign
service establishments shall submit a
formal report to the Commission and the
Joint
Congressional
Oversight
Committee created under this Act within
thirty (30) days from the day of elections.
Such report shall contain data on the
number of ballots cast and received by
the officers the number of invalid and
unclaimed ballots and other pertinent
data.
16.6 The overseas absentee shall be
instructed that his/her ballot shall not be
counted if it is not inside the special
envelope furnished him/her when it is
cast.

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16.7 Ballots not claimed by the overseas

absentee voters at the embassies,
consulates and other foreign service
establishments, in case of personal
voting, and ballots returned to the
embassies, consulates and other foreign
service establishments concerned, in the
case of voting by mail. Shall be cancelled
and shipped to the Commission by the
least costly method within six (6) months
from the day of elections.
16.8 Only ballots cast, and mailed ballots
received by the Philippine embassies,
consulates and other foreign service
establishments concerned in accordance
with Section 17 hereof before the close of
voting open the day of elections shall be
counted in accordance with Section 18
hereof. All envelopes containing the
ballots received by the embassies,
consulates and other foreign service
establishments after the prescribed
period shall not b opened, and shall be
cancelled and shipped to the
Commission by the least costly method
within six (6) months from the day of
elections.
16.9 A special Ballot Reception and Custody
Group composed of three (3) members
shall be constituted by the Commission
from among the staff of the embassies,
consulates and other foreign service
establishments concerned including their
attached agencies, and citizens of the
Philippines abroad, who will be deputized
to receive ballots and take custody of the
same preparatory to their transmittal to
the Special Boards of Election
Inspectors.
16.10 During this phase of the election process,
the authorized representatives of political
parties, candidates, and accredited
citizens arms of the Commission shall be
notified in writing thereof and shall have
the right to witness the proceedings.
16.11 The Commission shall study the use of
electronic mail, internet, or other secured

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networks in the casting of votes, and

submit a report thereon to the Joint
Congressional Oversight Committee.
Sec. 17. Voting by Mail.
17.1

For the May 2004 elections, the

Commission shall authorize by voting mail
in not more than three (3) countries, subject
to the approval of the Congressional
Oversight Committee. Voting by mail may
be allowed in countries that satisfy the
following conditions:
a.) Where
the
mailing
system is fairly welldeveloped and secure to
prevent occasion for
fraud;
b.) Where there exists a
technically established
identification system that
would preclude multiple
or proxy voting; and
c.) Where the system of
reception and custody of
mailed ballots in the
embassies, consulates
and other foreign service
establishments
concerned are adequate
and well-secured.

Thereafter, voting by mail in

any country shall be allowed
only upon review and
approval of the Joint
Congressional
Oversight
Committee.
17..2 The overseas absentee voter shall send
his/her accomplished ballot to the
corresponding embassy, consular or
foreign service establishment that has
jurisdiction over the country where he/she
temporarily resides. He/she shall be
entitled to cast his/her ballot at any time
upon his/her receipt thereof, provided that
the same is received before the close of
voting on the day of elections. The
overseas absentee voter shall be
instructed that his/her ballots shall not be

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counted if not transmitted in the special

envelope furnished him/her.
17.3

Only mailed ballots received by the

Philippine embassy, consulate and other
foreign service establishments before the
close of voting on the day of elections
shall be counted in accordance with
Section 18 hereof. All envelopes
containing the ballots received by the
embassies, consulates and other foreign
service
establishments
after
the
prescribed period shall not be opened,
and shall be cancelled and disposed of
appropriately, with a corresponding report
thereon submitted to the Commission not
later than thirty (30) days from the day of
elections.

Sec. 23. Security Measures to

Safeguard the Secrecy and Sanctity of
Ballots.- At all stages of the electoral process,
the Commission shall ensure that the secrecy
and integrity of the ballots are preserved. The
Committees on Absentee Voting of the
Commission shall be responsible for ensuring the
secrecy and sanctity of the absentee voting
process. In the interest of transparency, all
necessary and practicable measures shall be
adopted to allow representation of the
candidates, accredited major political parties,
accredited citizens arms and non-government
organizations to assist, and intervene in
appropriate cases, in all stages of the electoral
exercise and to prevent any and all forms of
fraud and correction.
Sec. 24. Prohibited Acts. In addition to
the prohibited acts provided by law, it shall be
unlawful:
24.1 For any officer or employee of the
Philippine government to influence or
attempt to influence any person
covered by this act to vote, or not to
vote, for a particular candidate.
Nothing in this Act shall be deemed
to prohibit free discussion regarding
politics or candidates for public
office.

31

24.2 For any person to deprive any

person of any right secured in this
act or to give false information as to
his/her name, address, or period of
residence for the purposes of
establishing his/her eligibility or
ineligibility to register or vote under
this act; or to conspire with another
person for the purpose of
encouraging the giving of false
information in order to establish the
eligibility or ineligibility of any
individual to register or vote under
this Act; or, to pay, or offer to pa, or
to accept payment either fro
application to vote in absentia or for
voting.
24. 3 For any person to tamper with the
ballot, the mail containing the ballots
for overseas absentee voters, the
election returns including the
destruction,
mutilation
and
manipulation thereof.
24.4 For any person to steal, destroy,
conceal, mutilate or alter any record,
document or paper as required for
purposes of this Act.
24.5 For any deputized agent to refuse
without justifiable ground, to serve or
continue serving, or to comply with
his/her
sworn
duties
after
acceptance of his/her appointments;
24.6 For any public officer or employee
who shall cause the preparations,
printing, distribution of information
material, or post the same in website
without the prior approval of the
Commission.
24.7 For any public employee to cause
the transfer, promotion, extension,
recall of any member of the foreign
service corps, including members of
the attached agencies, or otherwise
cause movement of any such
member from his current post or

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32

position one (1) year before and

three (3) months after the days of
elections, without securing the prior
approval of the Commission.

registration under this Act and yet vote in

the next elections contrary to the said
section, shall be penalized by
imprisonment of not less than one (1)
year, and shall be deemed disqualified as
provided in Section 5 (c) of this Act.
His/her passport shall be stamped not
allowed to vote.

24.8 For any person who, after being

deputized by the Commission to
undertake activities in connection
with the implementation of this Act,
shall campaign for or assist, in
whatsoever manner, candidates in
the elections.
For any person who is not citizen of the
Philippines to participate by word or
deed, directly or indirectly through
qualified organizations/associations, in
any manner and at any stage of the
Philippine political process abroad,
including participation in the campaign
and elections.
The Provision of existing laws to
the contrary notwithstanding, and with due
regard to the Principle of Double
Criminality, the prohibited acts described
in this section are electoral offenses and
punishable in the Philippines.
The penalties imposed under
Section 264 of the Omnibus Election
Code, as amended, shall be imposed on
any person found guilty of committing any
set of the prohibited acts as defined I this
section. Provided, that the penalty or
prision mayor in its minimum period shall
be imposed upon any person found guilty
of Section 24.3 hereof without the benefit
of the operation of the Indeterminate
Sentence Law. If the offender is a public
officer or a candidate, the penalty shall be
prision mayor in its minimum period. In
addition, the offender shall be sentenced
to suffer perpetual disqualification to hold
public office and deprivation of the right to
vote.
Immigrants
and
permanent
residents who do not resume residence in
the Philippines as stipulated in their
affidavit under Section 5 (d) within three
(3) years after approval of his/her

IX

COUNTING OF VOTES

MANNER
1.
The Board of Election Inspectors shall
read the ballots publicly and shall not postpone
the count until it is completed. (Section 206, BP
881)
2.
The Board of Election Inspectors shall
assume such positions as to provide the
watchers and the public unimpeded view of the
ballot being read. (Section 25, RA 7166)
3.
If on account of violence or similar causes
it becomes necessary to transfer the counting of
the votes to a safer place, the BEI may effect the
transfer by unanimous approval of the board and
concurrence of a majority of the watchers
present. (Section 18, RA6646)
4.
Where a commotion resulted in
suspension of the counting, the BEI may recount
the ballots. (Dayag vs. Alonzo)
SPECIAL PROBLEMS
1.

Excess Ballots
If there are excess ballots, the poll
clerk shall draw out as many ballots equal to the
excess without seeing them, and the excess
ballots shall not be counted. (Section 207,
BP881)
2.
Spoiled ballots
a.
Ballots in the compartment for
spoiled ballots are presumed to be spoiled
ballots.
If the BEI finds that a valid ballot was
erroneously deposited in the
compartment for spoiled ballots. It
shall be counted. (Section 209,
BP881)

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Marked Ballot
a.
Marked ballots shall not be
counted (Section 208, BP881)
b.
A ballot is considered marked in
any of the following cases:
The voter signed the
ballot. (Ferrer vs De
Alban, 101 phil 10)
There were variations in
the style of writing
The name of a a
candidate was written
more than twice
The voter wrote the
names of well-known
public figures who are
not candidates such as
actors, actresses and
national political figures.
(Protacto vs. De Leon, 9
SCRA 472)
The
ballot
contains
irrelevant expression.
(Bautista vs. Castro,206
SCRA 305). However,
the use of nicknames
and appellations of
affection and friendship,
if accompanied by the
name of the candidate
does not annul the ballot
except when it is used to
identify
the
voter.
(Section 211 (13),
BP811)
c.
Evidence aliunde is not necessary
to prove a ballot as marked. (Bacobo vs.
COMELEC,191 SCRA 576)
d.
a ballot in which a sticker was
stuck by another person to invalidate it
should not be rejected. (Lerias vs.
HRET,202 SCRA 808)

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3.

RULES FOR APPRECIATION OF BALLOTS

1. A ballot in which the first name or
surname of a candidate is written should
be counted for him, if there is no other
candidate with the same name. (Lerias vs.
HRET,202 SCRA 808)

2. If only the first name of a candidate is

written and it sounds like the surname of
another candidate, the vote shall be
counted in favor of the latter.
3. If there are two or more candidates with
the same name and one of them is
incumbent, the vote shall be counted in
favor of the incumbent.
4. When two or more words are written on
different lines which are the surnames of
two or more candidates with the same
surname of an office for which the law
authorizes the election of more than one,
the vote shall be counted in favor of all the
candidates. With the same surname.
5. When the word written is the first name of
one candidate and the surname of
another candidate, the vote shall be
counted for the latter.
6. If the ballot contains the first name of one
candidate and the surname of another, the
vote shall not be counted for either.
7. An incorrectly written name which sounds
like the correctly written name of a
candidate shall be counted in his
favor(Bautista vs Castro,206 SCRA 606)
8. If the word written is the incidental name
of two or more candidates for the same
office none of whom is incumbent, the
vote shall be counted in favor of the
candidate who belongs to the same ticket
as all other candidates voted for in the
ballot for the same constituency.
9. The erroneous initial of the first name
accompanied by the correct surname of a
candidate or the erroneous initial of the
same accompanied by the correct first
name of a candidate shall not annul the
vote in his favor.

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10. A ballot in which the correct first name but

wrong surname of a candidate is written
or the correct surname but wrong first
name of a candidate is written ,shall not
be counted in his favor.
11. Where a candidate named Pedro Alfonso
died on the eve of the election and his
daughter Irma Alfonso substituted him,
ballots in which the name Pedro alfonso
was written cannot be counted in her
favor. (Afonso vs. COMELEC,232 SCRA
777)
12. If two or more candidates were voted for
in an office for which the law authorizes
the election for only one, the vote shall not
be counted in favor of any of them.
13. If the candidate voted for exceed the
number of those to be elected, the votes
for the candidates whose names were
firstly written equal to the number of
candidates to be elected shall be counted.
14. Even if the name of a candidate was
written on the wrong space, it should be
counted if the intention to vote for him can
be determined, as when there is a
complete list of names of other offices
written below his name or the voter wrote
the office for which he was electing the
candidate. (Cordero vs.Moscardon,132
SCRA 414)
STRAY BALLOT
Rule 14 of section 211 of the Omnibus
Election Code considers three kinds of votes as
stray: (1) a vote containing initials only,(2) a vote
which is illegible, and ( 3) a vote which does not
sufficiently identify the candidate for whom it is
intended. (Villarosa vs. HRET,340 SCRA 396)
The rule is in favor of the validity of the
ballot, not otherwise The appearance of print
and script writings in a single ballot does not
necessarily imply that two persons wrote the
ballot

34

Paragraph 18,section 149 of the REC,

provides that unless it should clearly appear that
it has been deliberately put by the voter to serve
as identification mark, the use of two or more
kinds of writing shall be considered innocent and
shall not invalidate a ballot..
Under Section 211(19 ) of the OEC, 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 an astray vote, but it shall
not invalidate the whole ballot The unexplained
presence of prominent letters and words written
with remarkably good hand marked the ballots
and must be considered invalid
When in a space in the ballot there
appears a name of candidate that is erased and
another clearly written, the vote is valid for the
latter incorrect spelling of a candidates name
does not invalidate the ballotfor even the most
literate person is bound to commit a mistake in
spelling. (Ong vs. COMELEC, 347 SCRA 681)
CORRECTION OF RETURNS
1.
Before the announcement of the results of
the election in a precinct, any correction or
alteration in the election returns must be initialed
by all members of the BEI.
2.
After the announcement of the results in a
precinct, the authorization of the COMELEC is
needed to make any correction or alteration.
a.
If the petition is by all members of the BEI,
the results of the election will not be affected, and
none of the candidate affected objects, the
COMELEC, upon being satisfied of the veracity
of the petition, shall order the correction.
If a candidate affected by the petition objects and
the correction will affect the results of the
election, the COMELEC shall order a recount of
the votes, if it finds the petition meritorious and
the integrity of the ballot box has not been
violated (section 216, BP 881)
WHAT CONSTITUTE AN ELECTION

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Plurality of votes sufficient for choice

Not necessary that a majority of voters should
vote
CERTIFICATE OF VOTES
The BEI shall issue a certificate of the number of
votes received by a candidate upon request of a
watcher. (Section 16, RA6646)
The certificate of votes is admissible in evidence
to prove anomaly in the election return when
authenticated by testimony or documentary
evidence of at least two members of the BEI.
X. CANVASSING AND PROCLAMATION
CANVASSING BODIES
1.
Congress
a.
President
b.
vice president
2.
COMELEC
a.
Senators
b.
Regional Officials
3.
Provincial board of canvassers
a.
Congressman
b.
Provincial officials
4.
District Board of Canvassers in
each legislative district in Metro Manila
a.
Congressman
b.
Municipal official
5.
City and Municipal Board of
Canvassers
a.
Congressmen
b.
City and municipal officials
6.
Barangay Board of Canvassers
a. Barangay officials
SUPERVISORY POWER OVER THE
BOARD
The COMELEC exercises direct
supervision and control over the proceedings
before the board of canvassers (Mastura vs.
COMELEC, 285 SCRA 493)
NATURE OF
CANVASSERS

DUTY

OF

BOARD

OF

1.
Ministerial- it has only the ministrial task of
tallying the votes as reported in the election
returns and declare the results, and cannot
exercise the judicial power of deciding an
election contest. The correction of the manifest
mistake in the mathemathical addition calls for a
mere clerical task on the part of the board. The
remedy is purely administrative. (Tatlonghari vs.
COMELEC,199 SCRA 199)
2.
Quasi-Judicial- The Comelec exercises
judgment or discretion to determine whether any
given return before it is genuine in connection
with the canvass of votes.
PROCEDURE
1.
The COMELEC has direct control and
supervision over the board of canvassers except
congress. It may motu proprio relieve at any time
and substitute any member of the board of
canvassers. (section 227, BP 881)
A municipal court has no jurisdiction to
restrain the municipal board of
canvasser. (Librados vs. Casar,234
SCRA 13)
2.

Manner of delivery of election Return

a.
The BEI shall personally deliver to
the city or municipal board of canvassers the
copy of the election returns intended for them
sealed in an envelop, signed and thumbmarked
by the members of the BEI.
The fact that an election return was
not locked in the ballot box when it was delivered
to the board of canvassers is not ground for
excluding it in the absence of proof that it was
tampered with (Pimentel vs. Comelec,140 SCRA
126)
b.
The BEI shall personally deliver to
the provincial and district board of canvassers
the copy of the election returns intended for them
to the election registrar.
c.
Watchers have the right to
accompany the members of the BEI and the
election registrar during the delivery of the
election returns to the board of canvassers.
(section 229, BP 881)
RIGHTS OF CANDIDATES

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1.
Every registered political party and
candidate is entitled to one watcher in the
canvassing center, but candidates for the local
legislative bodies belonging to the same party
are entitled collectively to one watcher. The fact
that the watcher of a candidate was not present
when the canvassing was resumed because he
was notified is not a ground to annul the canvass.
(Quilala vs. COMELEC,188 SCRA 902)
2.
Any registered political party and
candidate has the right to be present and to
counsel
a. only one counsel may argue for each
party of candidate; no dilatory action shall be
allowed
3.

Problem areas
a.
Lost return
i. If any election return has been
lost, upon prior authority of the
COMELEC, the board of canvassers may
use authentic copy of it or a certified copy
of it issued by the COMELEC(Section
233,BP 881). It is not necessary that all
the other copies shall be considered.
ii. If an election return is missing a
recount should not be ordered if there is
any authentic copy available(Ong vs.
COMELEC, 216 SCRA 866)
iii. If all copies of the Election
returns were lost, a recount of the ballots
should be made.
iv. The certificate of votes signed
by the BEI and tally board cannot be used
for the canvass, because only election
returns are evidence of the results of the
election. (Garay vs COMELEC, 262
SCRA 222)
b.

Omission in the return

i. in case of an omission in the
election return of the names of a
candidate or his votes, the board of
canvassers shall require the BEI to
complete it.
ii. If the votes omitted cannot be
ascertained except by recounting the ballots,
after ascertaining the integrity of the ballot has
not been violated, the COMELEC shall order the
BEI to count the votes for the candidate whose
votes were omitted and to complete the return.

36

Since the omission of the election return on the

number of votes certain candidates received is
not a discrepancy, a recount of the vote should
be ordered instead of excluding the election
return in the canvassing. (Patoray vs.
COMELEC,249 SCRA 490)
c.

Tampered or falsified return

i.
If the election return submitted to
the board of canvassers was tampered with or
falsified or prepared under duress or by persons
other than the BEI, the board shall use the other
copies of the election return.
ii.
If the other copies of the election
returns were also tampered with or falsified or
prepared under duress or by persons other than
the BEI, the COMELEC after ascertaining that
the integrity of the ballot box has not been
violated,shall order the BEI to recount the votes
and prepare a new return.
iii. If the certificate of canvass was
tampered with, the COMELEC may order that
any of the copies of the election returns be used
in making a new canvass.(Mastura vs.
COMELEC,265 SCRA 493)
iv. Since an election return prepared
without counting the ballots is a fabrication, it
should not be counted and a count of the ballot
should be ordered.( Lucero vss. COMELEC,234
SCRA 280)
d. Discrepancies in returns
If there are discrepancies in the other
authentic copies of the return or in the words or
figures in the same return and it will affect the
result of the election, the COMELEC, after
ascertaining that the integrity of the ballot box
has not been violated, shall order the recount of
the ballots.
If there is discrepancy between the tally
and the written figures in the election return, it
should be excluded from the canvassing and a
recount of the ballots should be made or the
certificate of votes cast in the precinct should be
used. (Patoray vs. COMELEC,249 SCRA 440)
PROCLAMATION
1.
An incomplete canvass of votes is illegal
cannot be a basis of a valid proclamation (Samad
vs. COMELEC,224 SCRA631,Loong vs.
COMELEC,257 SCRA 1) a canvass cannot be

ZPG & Associates

reflective of the true vote of the electorate unless

all returns are considered and none is omitted
(Caruncho III vs. COMELEC,315 SCRA 693)
2.
If the questioned election returns will not
affect the result of the election, a proclamation
may be made upon the order to the COMELEC
after notice and hearing.
3.
A proclamation made where the contested
returns set aside will affect the result of the
election and the board of canvassers proceeded
to proclaim without the authority from the
COMELEC is null and void. (Sema vs.
COMELEC,347 SCRA 633)
4.
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. (Bagatsing vs CCOMELEC,320
SCRA 817)
5.
Filing of pre-proclamation controversy
under 2448 of BP881 is not the only grounds for
the suspension of proclamation.
6.
The proclamation of a winning candidate
cannot be annulled if he has not been notified of
the motion to set aside his proclamation.
(Caruncho vs. COMELEC,315 SCRA 693)
7.
The fact that the candidate who obtained
the highest number of votes is later
declared to be disqualified or nor eligible
for the office to which he was elected
does not necessarily entitle the candidate
who obtained the second highest number
of votes to be declared the winner of the
elective office To allow the defeated and
repudiated to take over the mayoralty
despite the rejection by the electorate is to
disenfranchise the electorate without any
fault of their part and to determine the
importance and meaning of democracy
and the peoples right to elect officials of
their choice Court a quo correctly held
that the second placer lost the elections
and was repudiated by either a majority or
plurality of voters. (Loreto vs. Brion,311
SCRA 694)
TIE
1.
A tie among two or more candidates for
president or vice president shall be broken by

37

majority vote of both houses of congress voting

separately (Section 4. ART VII, PHIL CONTN)
2.
In the case of other positions, the ties
shall be broken by the drawing of lots.
FAILURE TO SSUME OFFICE
If a candidate fails to take his oath of
office within 6 months from his proclamation,
unless for a cause beyond the control of the
elected official, his office will be considered
vacant. (section 12, BP 881)
XI

PRE-PROCLAMATION CASES

A.

Dfinition;coverage
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.
( Chu vs. COMELEC,319 SCRA 482)
In 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.
(CHU,supra)
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 alleged
election irregularities.
To require the COMELEC to
examine the circumstances surrounding
the preparation of the returns would run
counter to the rule that a pre-proclamation
controversy should be summarily decided.
Where the resolution of the issues
raised would require the COMELEC to
pierce the veil of election returns that
appear prima facie regular, the remedy is
a regular election protest.

ZPG & Associates

The office of pre-proclamation

controversy is limited to incomplete,
falsified or materially defective returns
which appear as such on the face.
(Sebastian VS COMELEC, 327 SCRA
406)
B.

C.

JURISDICTION
1.
Questions involving the legality of
the composition or proceeding of the
board of canvassers, except congress,
may be raised initially in the board of
canvassers or the COMELEC.(SEC 15
and 17, RA 7166)
2.
Questions involving the election
returns and certificate of canvass should
be brought in the first instance before the
board of canvassers only (Section 17, RA
7166)
SCOPE OF PRE-PROCLAMATION
CONTROVERSY

ISSUES
1.
Provincial, city and municipal officials
a. The composition of the proceeding
of the board of canvassers is illegal
b. The 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;
c. The returns were prepared under
duress
or
are
obviously
manufactured or not authentic;
d. Substitute or fraudulent returns
were canvassed, the result of
which materially affect the standing
of the aggrieved candidate.

2.
President, vice president, senators,
congressmen and barangay officials
No pre-proclamation case is
allowed regarding the preparation, transmission,
receipt, custody and appreciation of the election
return or certificate of canvass.(Chaves vs
COMELEC,211 SCRA 315)
ERRORS IN THE CERTIFICATE OF CANVASS

38

Correction of manifest errors has

reference to errors in the election returns, in the
entries of the statement of votes by precinct/per
municipality, or in the certificate of canvass a
manifest clerical error is one that is visible to the
eye or obvious to the understanding, and is
apparent from the papers to the eye appraiser
and the collector, and does not include an error
which may, by evidence dehors the record to be
shown to have been committed. (Trinidad vs.
COMELEC,320 SCRA 836)
1.
While the first sentence of section 15 of
RA 7166 prohibits candidates in the presidential,
Vice presidential, senatorial and congressional
elections from filing pre-proclamation case, the
second sentence 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, senators 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.
(Sandoval vs. COMELEC,323 SCRA 403)
2.
The canvassing body may motu proprio or
upon petition of an interested party correct
manifest errors in the certificate of canvass or
election return. (Sec 15, RA7166)
i.
A copy of an election return or
certificate of canvass was tabulated more than
once.
ii.
Two or more copies of the same
election return or certificate of canvass were
tabulated separately.
iii. There was a mistake in copying the
figures into the statement of votes or certificate of
canvass.
Errors in addition in the certificate of
canvass may be corrected. (Ong vs
COMELEC,221 SCRA 75)
iv. Returns from non-existent precincts
were included in the canvass
The statement of votes cannot be
corrected on the basis of a certification given to
a watcher, since election returns are what are
supposed to be the basis of the canvass.
(Ramirez vs. COMELEC,270 SCRA 390)

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STATISTICAL IMPROBABILITIES
An election return which is statistically
improbable is obviously fabricated and should not
be counted.
i.
Where the votes cast in 50
precincts for the candidates for senators of one
party equalled the number of registered voters,
all the candidates for senators of that party
received the same number of votes, and all the
candidates for senators of the opposing party got
no votes, the election returns are statistically
improbable and are obviously fabricated.
(Lagumbay vs. Climaco, 16 SCRA 175)
ii.
Where only one candidate of a
party got all the votes in some
precincts and his opponent got
zero, the other candidates for the
other party for other positions
received votes, the number of
votes cast were less than the
number of registered voters, the
election returns are not statistically
improbable. (Sangki vs COMELEC,
21 SCRA 1391)sss
iii.
The mere fact that a candidate
receive overwhelming majorities
over another candidate in
numerous precinct does not make
the election return statistically
improbable. (Ilarde vs. 31
SCRA71)
iv.
The mere fact that the percentage
of turnout of voters was high and
that a candidate received high
percentage of the votes does not
make the election returns
statistically improbable.(Doruelo
vs. COMELEC ,133 SCRA 376)
v.
The bare fact that candidate for
public office had received zero vote
is not enough to make returns
statistically improbable (Ocampo
vs.COKELRC,325SCRA 636)
v.
Standing alone without more, the
bare fact that a candidate for public
office had receive zero votes in
one or two precincts can not
adequately support a finding that
the subject election returns are
statistically
improbablethe
doctrine of statistical improbability
must be viewed restrictively, the

39

utmost care being taken lest in

penalizing
the fraudulent and
corrupt practices, innocent voters
become
disenfranchisedThe
doctrine of statistical improbability
involves a question of fact and
more prudential approach prohibits
its determination ex parte.(Velayo
vs. COMELEC,327 SCRA713)
ISSUES NOT RESOLVABLE N PREPROCLAMATION CONTROVERSY
1.Issues involving the casting or the counting of
the ballots are not proper in pre- proclamation
cases.
i.

ii.

The use of illegal election propaganda,

vote-buying and terrorism of the voters
are not proper issues in a preproclamation case. (Villegas vs.
COMELEC, 99 SCRA 5892)
Questions on the appreciation of the
ballots can not be raised in preproclamation
case.
(Alfonso
vs.COMELEC, 232 SCRA 777)Thus,
the claim that a candidate was not
credited with votes cast for him
because his name was similar to that
of another disqualified candidate
cannot be raised in a pre-proclamation
case.(Chavez vs. COMELEC, 211
SCRA 315)
Likewise,
the claim that some ballots
were spurious, marked or
invalid cannot be raised in a
pre- proclamation case.
(pataray vs. COMELEC,274
SCRA 470)
iii. Terrorism of voters,
voting by flying voters,
deprivation of the right to
vote of registered voters
and vote buying cannot be
raised in a pre-proclamation
case
(Allarde
vs.
COMELEC,159 SCRA 623)
iv. Vote buying and
secrecy in the preparation

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40

of ballots are not proper

grounds
for
preproclamation case (Salazar
vs. COMELEC,184 SCRA
433)
v. The claim that the
voters were allowed to vote
without
verifying
their
identities, that there were
discrepancies between the
signatures in the voter\s
affidavits and the voting
record, and third persons
falsely voted for voters who
did not vote are not proper
issues in a pre-proclamation
case
(Dipatuan
vs.
COMELEC,185 SCRA 86)
vi. Technical
examination
of
the
signatures and thumbprints
of the voters to prove
substitute voting is not
allowed
in
a
preproclamation
case.
(Balindong
vs.
COMELLEC,260
SCRA
294)
vii. The padding of the
list of voters cannot be
raised in a pre-proclamation
case, since it does not
involve the election return.
(Ututahan
vs.
COOOMELEC,189 SCRA
335)
viii. The fact that the
voting was sham or minimal
is not a ground for filing a
pre-proclamation
case,
since this is properly
cognizable in an election
protest.(Salih
vs.
COMELEC,279 SCRA 19)
ix To look beyond or
behind election returns is
not a proper issue in preproclamation controversy
(Ocampo vs. COMELEC,
325 SCRA 636)
x The fact that the
counting of the votes was

not completed because of

the explosion of grenade
and that no election was
held cannot be raised in a
pre-proclamation case, as
these are irregularities that
do not appear on the face of
the
election
returns.
(Matalam
vs.
COMELEC,271 SCRA 733)
2.
Administrative
lapses which do not affect
the authenticity of an
election return cannot serve
as basis for annulling the
election return.
i. The failure to close
the entries in the election
returns with the signature of
the BEI, lack of seals,
absence of time and date of
receipt of election return by
the board of canvassers,
lack of signature of
watchers of the petitioner,
and the lack of authority of
the person who received
the election returns do not
affect the authenticity of the
returns.
(Baterina
vs.
COMELEC,205 SCRA 1)
ii. The absence of the
signature of the claimant of
the BEI on the voters
affidavits, list of voters and
voting records, absence or
excess
of
detachable
coupons,
discrepancies
between the member of
detachable coupons and
the number of ballots,
missing voters lists are
mere
administrative
omissions and cannot be
used as basis to annul an
election return. (Arroyo vs.
HRET, 246 SCRA 384)
3.
Where the threats of
the followers of a candidate

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41

did
not
affect
the
genuineness of an election
return, it should not be
excluded (Salvacion vs.
COMELEC,170 SCRA 513)
SUMMARY DISPOSITION
OF PRE-PROCLAMATION
CONTROVERSY
1.
Summary
proceedings cannot be
stretched to mean ex parte
proceedingsummary
simply means with dispatch,
with the least possible
delay, signifying that the
power may be exercised
without trial in the ordinary
manner prescribed by law
for
regular
judicial
proceedings.(Velayo
vs.Comelec,372 SCRA 713)
2.
RA 7166 explicitly
provides that it is only on
the basis of the official
records that the COMELEC
can decide the preproclamation controversy in
a summary manner. (Velayo
vs. COMELEC,327 SCRA
713)
3.
All pre-proclamation
controversies on election
returns or certificates of
canvass shall be disposed
of summarily-first by the
record of canvassers and
then. By the COMELEC.
(Chu vs. COMELEC, 319
SCRA 482)
A.

Procedure in contested composition or

proceeding of the Board of Canvassers
The illegality of the composition of the
board of canvassers cannot be
questioned after the proclamation of the
winner, since it must be raised
immediately.
(Laodenio
vs.
COMELEC,276 SCRA 705)
The ruling of the board of
canvassers on question affecting its

composition or proceeding may be

appealed to the COOMELEC in 3 days.
(Section 19 RA 7166)
B.

Procedure in case of contested returns

1.
Objections to an election return
shall be submitted orally to the chairman
of the board of canvassers at the time the
return is presented for inclusion in the
canvass and shall be entered in the form
for written objection(Sec 20 (a) and (c),RA
7166)
a.
An objection made after the
canvass is late.(Guiao vs /comelec,137
SCRA 356,Navarro vs COMELEC,228
SCRA 596)
b.
a petition for correction of
the statement of votes may be filed after
the proclamation of the winner, although
no objection was made during the
canvass, as error was discovered only
after the petitioner got a copy of the
statement of votes. (Duremdes vs.
COMELEC,178 SCRA 746). It must be
filed not later than 5 days after the
proclamation.(Section 5(b), Rule 27 of
COMELEC rules of procedure)
However, the five-day
deadline is not applicable to a petition for
the annulment of proclamation of a
candidate when it was his opponent who
obtained the majority for what was
corrected was not the entries but the
computation of the votes. (Mentang vs.
COMELEC,229 SCRA 666)
Under the COMELEC Rules
of procedure, a petition for correction of
the certificate of canvass may be filed
even before the proclamation of the
winner.
(Bince
vs.
Comelec,242
SCRA273)
A petition for correction of
manifest errors in the statement of votes
can be decided by the COMELEC en
banc at the first instance, since it does not
involve an election protest or a preproclamation
case
(Ramirez
vs.
COMELEC,270 SCRA 590)
The COMELEC has the
power to order the correction of the
statement of votes to make it conform to

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42

the election returns. (Castromayor vs.

COMELEC,250 SCRA 298)
2.
The canvass of any contested
return shall be deferred and the board of
canvasser shall proceed to canvass the
uncontested return (Section 20(b),RA
7166)
3.
Within 24 hours, the objecting party
shall submit evidence in support of the
objections.
4.
Within 24 hours after presentation
of the objection, a party may file a written
opposition and attach the supporting
evidence.(Section 20c, RA 7166)
5.
The board of canvassers shall
summarily rule in the contested returns
(Section 20(d),RA 7166)
6.
A party who intends to appeal
should immediately inform the board of
canvassers. Within 24 hours he must file a
written and verified notice of appeal with
the board of canvassers and take his
appeal to the COMELEC within 5 days.
(section 20(f),RA 7166)
a.

Appellate jurisdiction

The RTC has no jurisdiction to review the

decision of the municipal board of
canvassers to correct a certificate of
canvass.(Cabanero vs CA)
The RTC has no jurisdiction to compel
themunicipal board of canvassers, which
suspended the proclamation because of a
possible discrepancy in the election
return, to make a proclamation. (In re
COMELEC
Resolution no.2521,234
SCRA 1)
b.

Period of appeal

Since the proclamation of a candidate

who finished second made after the
candidate who got the highest number of
votes was killed is patently void, a late
appeal should be allowed. (Benito vs.
CCOMELLEC,235 SCRAS 436)
The COMELEC cannot by regulation
shorten the period to question its decision

before the SC for under the Constitution

the period of 30 days can be shortened by
law only.(Sardea vs. COMELLEC,225
SCRA 374)
7.

The COMELEC shall decide the appeal

within 7 days from receipt of the records,
and the decision shall be executory after 7
days from receipt by the losing party.
(Sections 18 and 20(f), RA 7166)
TERMINATION OF PREPROCLAMATION CASE
Once a proclamation has
been made, the preproclamation case is no
longer viable and should be
dismissed (Sardea vs.
COMELEC). However this
rule
presupposes
the
proclamation is valid. It
does not apply if the
proclamation
is
void,
because it was based on
incomplete
returns.
(Matalam vs. COMELEC
271 SCRA 733). The same
holds true if the returns
were
manufactured.
(Agbayani
vs.
COMELEC,186
SCRA
464). The same hols true
where the computation of
votes was erroneous.
(Mentang
vs.
COMELEC,229 SCRA 669)
All pre-proclamation cases
pending
before
the
COMELEC
shall
be
terminated at the beginning
of the term of the office
(noon of June 30) involved,
and the rulings of the board
of canvassers shall be
deemed affirmed, without
prejudice to the filing of an
election protest by the
aggrieved
party.
(Penaflorida
vs.

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43

COMELEC,282 SCRA 241

And Barroso vs Ampig,328
SCRA 530)
The pre-proclamation case
should no longer be
decided if exclusion of the
questioned election return
will not change the result of
the election. (Matalam vss.
COMELEC,271 SCRA 733)
EFFECT OF FILING AN
ELECTION PROTEST,QUO
WARRANTO
1.
As a general rule,
the filing of an election
protest or a petition for quo
warranto precludes the
subsequent filing of a preproclamation controversy,
or
amounts
to
the
abandonment of one earlier
filed.
(Maruhom
vs.
COMELEC,331 SCRA 473)
2.
The filing of an
election protest results in
abandonment of a preproclamation case even if
the protest alleged it was
filed as a precautionary
measure, if he did not
explain why.(Laodenio vs.
COMELEC,276 SCRA 405)
3.
The rule that the
filing of a protest implies
abandonment of the preproclamation case does not
apply if:
i.
The protest
was filed as a precautionary
measure
(mitmug
vs.
COMELEC,230 SCRA 54)
ii.
The board of canvassers was
improperly constituted, as when the Municipal
Treasurer took over the canvassing without
having been designated. (Saman vs.
COMELEC,224 SCRA 631)
CONTINUANCE OF THE CASE

If the petition appears meritorious on the basis of

the evidence presented so far, the COMELEC or
the SC may order the case to continue. (Section
16, RA 7166)
PROCLAMATION
1.
The Board of Canvassers shall not make
any proclamation without any authorization from
the COMELEC (Jamil vs COMELEC,283 SCRA
349)
2.
Proclamation may be made
if the
contested returns will not adversely affect the
results of the elections. (Section 20 (i), RA 7166)
3.
The COMELEC may order the
proclamation of other winning candidates whose
election will not be affected by the preproclamation case. (Section 21, RA 7166)
4.
A candidate for mayor who finished
second cannot be proclaimed simply because the
candidate who received the highest number of
votes died, since he was not the choice of the
people. (Benito vs. COMELEC, 23335 SCRA
436)
5.
The wreath of victory cannot be
transferred from the disqualified winner to the
repudiated loser because the law then as now
only authorizes a declaration of election in favor
of the person who has obtained a plurality of
votes to be declared elected. (Sunga vs.
COMELEC,288 SCRA 76)
ANNULMENT OF PROCLAMATION
1.
The COMELEC can annul a proclamation
because of an error in the computation of the
votes in the statement of votes since the
proclamation is void.(Torres vs. COMELEC,270
SCRA 583)
2.
Where the COMELEC, without prior notice
and hearing, annulled the proclamation of a
winning party and directed the Municipal Board
of Canvassers to reconvene and effect

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44

corrections in the total number of votes received

by the candidates and thereafter proclaim the
winner, the expedient action to take is to direct
the Municipal Board of Canvassers to reconvene
and. after notice and hearing in accordance with
rule 27, section 7 of the COMELEC Rules of
Procedure, to effect the necessary correction, if
any, in the election returns and, on the basis
thereof, proclaim the winning candidate or
candidates as members of the Sangguniang
Bayan( Angelia vs. COMELEC,332 SCRA 757)
3.
It is improper for the COMELEC to annul
the proclamation of a winning candidate on the
basis of new and additional evidence which were
not presented before the Board of Canvasssers
and which were not furnished to the said
candidate Reliance should not be placed on
mere affidavits for the purpose of annulling a
winning candidates proclamation. (Velayo vs.
COMELEC, 327 SCRA 713)

Provincial Officials
City Officials ( Sec 2(2). Art IX-C, PC; Sec
249 BP 881)
6. Regional Trial Court- Municipal
Officials ( Sec 2(2), Art IX-C, PC; Sec
251, BP 881, Papandayan vs.
COMELEC , 230 SCRA 469)
7. Metropolitan Trial Court, Municipal
Circuit Trial Court, and Municipal
Trial Court Barangay Officials [ Sec
2(2), Art IX-C, PC; Sec 252 BP 881;
Regatcho vs. Cleto, 126 SCRA 342]
Metropolitan Trial Court, Municipal
Circuit Trial Court, Municipal Trial
Court Sangguniang Kabataan ( Sec
1, RA 7166)
B.

4.
A proclamation subsequently declared
void is no proclamation at all and while a
proclaimed candidate may assume office on the
strength of the proclamation of the Board of
Canvassers he is only a presumptive winner who
assumes office subject to the final outcome of the
election protest. (Lonzanida vs. COMELEC, 311
SRA 602)
ELECTION CONTESTS
A.

Jurisdiction
Supreme Court( Presidential Electoral
Tribunal)
President
Vice-President ( Sec. 4, Art VII, Phil.
Const)
Senate Electoral tribunal Senators
( Sec 17, Art VI, PC)
3. House of Representatives Electoral
Tribunal-Congressmen ( Sec 17, Art
VI, PC; Sampayan vs. Daza, 213
SCRA 807)
4. Commission on Elections
Regional Officials

Action which may be filed

1.
Election Protest
Requisites:
i.
Must be filed by any
candidate who has filed a
certificate of candidacy and
has been voted upon for the
same office.
ii.
On ground of fraud,
terrorism, irregularities or
illegal acts committed
before, during or after the
casting and counting of
votes
iii.
Within 10 days from the
proclamation of the results
of the election.
Quo Warranto
Requisites:
i.
Filed by any registered
voter in the constituency
ii.
On grounds of ineligibility or
disloyalty to the Republic of
the Philippines
iii.
Within 10 days from the
proclamation of the results
of the election

Procedure
1.
Period of filing contest
a.
Periods
i.
President
and
President

Vice-

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1)
Protest- 30 days
( Rule 14, Rules of Presidential Electoral
Tribunal)
2)
Quo Warranto- 10
days ( Rule 15,
Rules of Presidential
Electoral Tribunal)
ii.
Senators
1)
Protest 15 days
( Rule 14, Revised
Rules of Senate
Electoral Tribunal)
2)
Quo Warranto 10
days ( Rule 15,
Revised Rules of
Senate
Electoral
Tribunal)
iii.
Congressmen- 10 days
( Rule 16 and 17.1998
Rules of House of
Representatives Electoral
Tribunal)
iv.
Regional, provincial and city
officials-10 days ( Sec 250
and 253, BP 881; Republic
vs. Dela Rosa, 232 SCRA
78)
v.
Municipal Officials- 10 days
( Secs 251 and 253, BP
881)
vi.
Barangay Officials 10
days ( Sec 252 and 253,
BP 881)
vii.
Sangguniang Kabataan- 10
days ( Sec 1, RA 7808)
b.
Exceptions
i.
The period to file an
election protest or quo warranto
case is
suspended from the filing of
a pre-proclamation case
until receipt of the order
dismissing the case. ( Sec
248, BP 881; Gatchalian vs
CA , SCRA 208)
ii.
If the dismissal was
elevated to the Supreme
Court , the period does not
run until receipt of the
dismissal by the Supreme
Court, because review by
the Supreme Court is part

45

of the proceeding.( Gallardo

vs Rimando, 187 SCRA
463)
iii.
The running of the
reglementary period to file an
election protest is
tolled by a partys elevation
to the Supreme Court of a
COMELEC decision
resolution of proclamation case.
( Roquero vs
COMELEC , 289 SCRA
120)
iv.
The period to file an
election
protest
is
suspended by the filing of
the petition to annul the
proclamation of the winner (
Manahan vs Bernardo, 283
SCRA 505)
v.
Since the filing of a preproclamation case merely
suspends the running of the
period to file an election
protest, only the balance of
the period is in case of
dismissal. ( Roquero vs
COMELEC , 289 SCRA
150)
vi.
Where the evidence of the
lack of Filipino citizenship of
a provincial official was
discovered only 18 months
after his proclamation, the
quo warranto case should
be allowed even if it filed
more than 10 days after his
proclamation. ( Frivaldo vs
COMELEC , 174 SCRA
245)
2

.Protestant or Petitioner
President and Vice-President
i. protest- Candidate with
second or third highest
number of votes ( Rule 14,
Rules
of
Presidential
Electoral Tribunal)
ii. Quo Warranto- any voter
( Rule 15, Rules of

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46

Presidential
Tribunal)
Senator

Electoral

i.

Protest- any
candidate ( Rule 14,
Revised Rules of Senate
Electoral Tribunal)
ii.
Quo
Warranto- any voter ( Rule
15, 1998 Rules of Senate
Electoral Tribunal)
Congressmen
Protest- any candidate
Quo Warranto- Any voter ( Rule
17, 1998 Rules of House of
Representatives Electoral
Tribunal)
Regional, provincial, City Officials
Protest- any candidate ( Sec 250,
BP 881)
Quo Warranto- any voter ( Sec
253, BP 881)
Municipal Officials
Protest- any candidate- ( Sec 251 ,
BP 881)
Quo Warranto- any voter ( Sec
253, BP 881)
Barangay Officials
Protest- any candidate- ( Sec 252,
BP 881)
Quo Warranto- any voter ( Sec
253, Bp 881)
Payment of Docket Fee
When the protestant
included a claim for
attorneys fees in his protest
and paid the docket fee for
his claim for attorneys fees
but did not pay the basic
docket fee for the election
protest , the election
protest
should
be
dismissed. ( Gatchalian vs
CA, 245 SCRA 208)
Allegations in Protest
An election protest should contain
the following jurisdictional
allegations:
The protestant is a candidate who
duly filed a certificate of

candidacy and was voted

for in the election
The
protestee
has
been
proclaimed elected
The date of proclamation ( Miro vs
COMELEC, 121 SCRA
466)
An election protest which
does not specify the
precinct where the alleged
irregularities occurred is
fatally defective . (Pena vs
HRET , 270 SCRA 340)
Substantial compliance is sufficient
. Thus the following
allegations
sufficiently
comply with the first
requirement.
The protestant received a certain
number of votes ( Anis vs
Contreras, 55 Phil 929)
The protestant finished second in
the election ( Ali vs CFI of
Lanao, 80 Phil 506)
The protestant was a candidate
voted for in the election with
a valid certificate of
candidacy
for
mayor
( Pamania vs Pilapil, 81
Phil 212)
The protestant was one of the
registered candidates voted
for and he received a
certain number of votes
( Jalandoni vs Sarcon, 94
Phil 266)
The protestant was the official
candidate of a [particular
political party and received
a certain number of votes
( Maquinay vs Bleza, 100
SCRA 702)
The protestant was a candidate for
governor and was voted for.
( Macias vs COMELEC, 182
SCRA 137)
Even if the protest did not allege
the
date
of
the
proclamation, it can be
determined
from
the

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records of the case that it

was filed on time, as when
the protest was filed on the
tenth from the date the
casting of votes was held,
the protest should not be
dismissed.
(Miro
vs
COMELEC, 121 SCRA 466)
Verification/Certificate
of
Absence
of
Forum
Shopping
When the petioner failed to state
in his verification that the
contents of the election
protest are true and correct
of his own personal
knowledge , said petition
lacks proper verification and
should be treated an
unsigned pleading and must
be dismissed. ( Soller vs
COMELEC, 339 SCRA 685)
Forum Shopping exists when the
petitioner files multiple
petitions or complaints
involving the same issues
in two or more tribunal or
agencies. ( Domingo vs
COMELEC, 313
SCRA
311)
The requirement that every initial
pleading should contain
certification of absence of
forum shopping applies to
election cases for Circular
No. 04-94 does not
distinguish ( Loyola vs CA
245 SCRA 477, Tamarong
vs Lubguban, 269 SCRA
624)
SC Adm. Circular
No 04-94
requiring a certification of
non-forum shopping is
applicable to election cases
as it is mandatory . It is,
however not jurisdictional..
The filing of a certification of
absence of forum shopping
after the filing of the protest
but within the period for
filing
a protest is

47

substantial
compliance.
( Tumarong, supra)
The strict application of the nonforum shopping rule in
election contests would not
work to the best interest of
the parties and the
electorate . An election
contest, unlike an ordinary
civil action , is clothed with
public interest--- it involves
not only the adjudication of
private and pecuniary
interest of rival candidates
but paramount to their
claims is the deep public
concern involved and the
need of dispelling the
uncertainty over the real
choice of the electorate.
( Barroso vs Ampig Jr, 328
SCRA 530)
Joinder of Election Protest and
Quo Warranto Cases
An election protest and quo
warranto case cannot be
filed jointly in the same
proceeding. However, they
can be filed separately.
( Luisaon vs Garcia , GR No
L-10916, May 10, 1957)
If they were joined in an action ,
they should be ordered
separated. ( Pacal vs
Ramos, 81 Phil 20)
Composition of Board of
Canvassers
The illegality of the
composition of the board of
canvassers cannot be
raised in a quo warranto
case, as only the ineligibility
or disloyalty of the winner
can be raised in such case
( Samad vs COMELEC, 224
SCRA 631)
Change Theory
Substantial Amendments to
the election protest cannot

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48

be made after the expiration

of the period for filing an
election
protest.
( Arroyo vs HRET, 224
SCRA 384)

only for a counter-protest

( Roa vs Inting, 231 SCRA
57)
12.
Injunction
A protestee cannot be
enjoined from assuming
office because of the
pendency of an election
protest. Until the case is
decided against him, he has
the right to assume office.
( Careno vs Dictado, 160
SCRA 759)

Preliminary Motions
A motion to dismiss and a
motion for a bill of
particulars may be filed in
an election protest pending
before the regular courts ,
since the COMELEC Rules
of Procedure are not
applicable to the regular
courts because of the
exclusive
rule-making
power of the Supreme
Court. ( Aruelo vs CA, 227
SCRA 311)
10. Answer
An
answer file out of time
cannot be admitted ( Kho vs
COMELEC
279
SCRA 463)

a.

Where the answer

of the protestee was filed
out of time and a
general denial was
entered in favor of the
protestee, the rule in
civil cases that
general denials operates as
a n admission is not
applicable ( Loyola
vs HRET, 229 SCRA 90)

b.

c.

A counter protest
cannot be allowed if the
answer was filed out of
time ( Lim vs
COMELEC, 282 SCRA 53)
11. Cash Deposit
A protestee who filed a
counterclaim for attorneys
fees cannot be required to
file a cash deposit since a
cash deposit is required

14.

13. Substitution
Even if the protestee has
resigned , the protest
should continue , as a
favorable judgement will be
entitled the protestant to
assume the office ( Delos
Angeles vs Rodriguez, 46
Phil 599) The same holds
true if the protestee
accepted another position
( Calvo vs Maramba, GR
No 13206, January 7, 1918)
If the protestee died, he
should be substituted by
his successor such as the
vice-mayor ( Dela Victoria
vs COMELEC, 199 SCRA
561) He cannot be
substituted by his heirs,
since public office cannot
be inherited. ( Abeja vs
Tanada, 236 SCRA 60)
If it is the protestant who
died, he should be
substituted by the public
official who would have
succeeded him, such as the
vice-mayor. ( De Castro vs
COMELEC 267 SCRA 806)

Abandonment
A defeated candidate for president
who filed an election protest and
ran for senator should be deemed
to have abandoned the protest

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15.

16.

( Santiago vs Ramos, 253 SCRA

559)
Summary Judgment
An election protest cannot be
decided summarly, as summary
judgment applies only to ordinary
civil action for recovery of money
MELEC 199 SCRA 449)
Opening of Ballots
When an election protest is filed.
The ballot boxes should be opened
without
requiring
proof
of
irregularities, and misappreciation
of ballots
( Manahan vs
Bernardo, 283 SCRA 505)

49

19.

Evidence
The
genuineness
of
the
handwriting in the ballots can be
determined without
calling
handwriting experts. ( Erni vs
COMELEC, 243 SCRA 578)
Unless the original documents or
certified true copies of them cannot
be produced or photo-copies
cannot be used as evidence
( Arroyo vs HRET, 246 SCRA 384)
Ballots cannot be excluded on the
ground that they were written by
any person or were marked on the
basis of mere photo-copies, as
they are not the best evidence
( Nazareno vs COMELEC 279
SCRA 89)

The revision of ballots in an

election
protest
filed
with
COMELEC should be held in
Manila ( Cabagnot vs COMELEC,
260 SCRA 503)
17.

Deferment of Counter Protest

A protestee cannot ask that before
making the revision of the ballots
involved in his counter-protest, the
court first determine that the
protestant would win on the basis
of the revisions of the ballots
involved in the protest (Abeja vs
Tanada, 236 SCRA 60)

20.

Demurrer
A motion to dismiss for
insufficiency of the evidence of the
protestant has rested is a demurrer
to the evidence. If it was granted
but reversed on appeal , the
protestee is deemed to have the
right to present evidence ( Enojas
vs COMELEC, 283 SCRA 229)

18.

Certiorari
Under Sec 50 of BP 697, the
COMELEC has jurisdiction over
petitions for certiorari, prohibition
and mandamus involving election
cases pending before the courts
whose decisions are appealabe to
it ( Relampagos vs CUmba, 243
SCRA 690;Edding vs COMELEC
246 SCRA 502)

21.

Decision

Where a petition for certiorari

merely questioned the denial of the
motion of the protestee for
extension of the time to answer,
the COMELEC cannot affirm the
decision of the merits in the
election protest. ( Acosta vs
COMELEC, 293 SCRA 578)

a.
authentic election return
cannot be annulled because the ballots
were lost or destroyed
( Arroyo vs HRET 246 SCRA 384)
b.
If the winner is ineligible,
the candidate who got the highest
number of votes cannot be
proclaimed elected as he did not get the
majority or plurality of the
votes ( Sunga vs COMELEC,
288 SCRA 76)
c.
Actual damages may be
awarded in accordance with the law
( Sec 259, BP 881)
The loser cannot
ordered to reimburse the winner for the

be

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expenses incurred in the

election protest for no law provides for it
( Atienza vs COMELEC 239
SCRA 298)
d.
The mere fact that the
decision in favor of the protestant was
reversed on appeal is not
sufficient basis for the ruling that the
protestant
should
be
awarded attorneys fees because the protest
was
filed
for
harassment
(
Malaluan
vs
COMELEC 254 SCRA 397)
e.
Under Sec 264, par 1 of BP
881, as amended , the award of
damages is no among the
imposable penalties for the commission
of any of the election
offenses thereunder by any individual
( Regalado vs CA 325
SCRA 516)
Execution of Judgment Pending Appeal
BP 881 and other election laws do not
specifically provide for the
execution pending appeal for judgment in
election cases, unlike the Election Code of
1971. The failure of the extant election laws to
reproduce Sec 218 of the Election Code of
1971 does not mean that the execution of
judgment pending appeal is no longer
available in election cases.

50

i.
Public interest involved or
will of the electorate
ii.
The shortness of the
remaining portion of the term of the contested
office
iii.
Length of time that the
election contest has been pending ( Ferno
vs COMELEC 328
SCRA 52)
iv.
Filing of bond
as a
condition for the issuance of a corresponding
writ of execution to
answer for the payment of damages which the
aggrieved party may suffer
by reason of the execution pending
appeal
( Ramas vs
COMELEC 286 SCRA 189)
Execution pending appeal cannot be
ordered on the basis of gratuitous
allegations
that public interest is
involved and that the appeal is dilatory.
( Camlian vs
COMELEC 271 , 271
SCRA 757)

22.

The Supreme Court has explicitly

recognized and given approval to execution of j
judgment pending appeal in election
cases filed under existing laws.. The
rationale why execution pending appeal is
allowed in election cases is to give much
recognition to the worth of a trial judges decision
as that which is initially
ascribed by the law
to the proclamation by the board of canvassers.
Governed by Sec 2 , Rule 39 of the 1997
Rules of Civil procedure. Execution
pending appeal should be based upon
good reasons and a combination of two or
more of them will suffice to grant
execution pending appeal:

A motion for execution pending appeal

filed after the expiration of the period of appeal
can no longer be granted ( Relampagos vs
Cumba 243 SCRA 690)
23.

Motion for Reconsideration

a.
One motion for reconsideration is
allowed in the contest involving the
following :
i.
President- 10 days
ii.
Vice-President- 10 days
( Rule 65, Rules of Presidential Electoral
Tribunal
iii.
Senator- 10 days ( Rule 64,
Rules of Senate Electoral Tribunal)
iv.
Congressmen- 10 days
( Rule 74, 1998 Rules of HRET)
v.
Regional, Provincial and
City Officials 5 days ( Sec 2, Rule 19
COMELEC
Rules
of
Procedure)
b.
No motion for reconsideration is
allowed in election contests involving the
following:

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i.
Municipal officials ( Sec
256, BP 881; Veloria vs COMELEC ,
211 SCRA 907)
However this rule should
not be applied to the dismissal of an
election protest for failure of
the counsel of the protestant to appear
at the pre-trial, since the pre-trial is
not applicable to the election
protest. ( Pangilinan vs De
Ocampo, 232 SCRA )
ii.
Barangay Officials ( Sec 19,
Rule 37 and Sec 12, Rule 38
COMELEC
Rules
of
Procedure)
iii.
Sangguniang
Kabataan
( Sec 19, Rule 37 and Sec 12 Rule 38,
COMELEC
Rules
of
Procedure)
c.
Since only decisions of the
COMELEC en banc may be elevated to the
Supreme Court , a party
who did not file for a motion for reconsideration
of a decision of a division of
the COMELEC cannot elevate the case to the
Supreme Court ( Reyes vs RTC of
Oriental Mindoro, 244 SCRA 41)
d.

24.

A resolution of the COMELEC en

banc
is
not
subject
to
reconsideration, therefore
any
party who disagrees with it is to file
a petition for certiorariunder Rule
65 of the Rules of Civil procedure
a motion for reconsideration of an
en banc ruling, resolution, order, or
decision except in election offense
cases is a prohibited pleading
under the COMELEC Rules of
Procedure. For a party to wait until
the COMELEC en banc denies his
motion for reconsideration would
be to allow the reglementary period
for filing a petition for certiorari with
the SC to run and expire. ( Angela
vs COMELEC , 322 SCRA 757)

Review
a.
Jurisdiction

51

i.
Senator- Supreme Court
within 60 days ( Sec 4, Rule 65 Rules of
Court)
ii.
CongressmenSupreme
Court within 60 days ( Lerias vs HRET;
Sec 4, Rule 65 Rules of
Court)
iii.
Regional, provincial, and
City officials Supreme Court within 30
days ( Sec 7, Art IX-A Phil
Const)
iv.
Municipal Officials
1)
COMELEC within 5
days ( Sec 22 RA 7166; Sec 3 Rule 22
of COMELEC Rules of
Procedure, Lindo vs COMELEC,
194 SCRA 25)
2)
Supreme
Courtwithin 30 days ( Rivera vs COMELEC 199
SCRA 178)
v.
Barangay Officials
1)
COMELEC within 5
days ( Sec 2(2) ,Art IX-C, Phil Const;
Sec 3, Rule 22
COMELEC Rules of Procedure; calucag vs
COMELEC
274 SCRA 405)
2)
Supreme
Court
within 30 days ( Flores vs COMELEC 184
SCRA 484)
b.
Form
Where the appellant filed an
appeal brief instead of a notice of appeal to
the COMELEC , the appeal
should not be dismissed, since the
determination of the will of the
people should not be thwarted of
technicalities ( Pahilan vs Tabalba,
230 SCRA 205)
c.

Failure to Pay Appellate Docket

Fee
i.
An appeal may be
dismissed for failure of the appellant to pay the
appellate docket fee
( Reyes vs RTC of Oriental Mindoro, 244
SCRA 41)
ii.
An appeal may be
dismissed if the full appellate docket fee was
not paid , as

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payment of the full amount is indispensable for

perfection of the
appeal ( Rodillas vs COMELEC, 245 SCRA 702)
d.

Scope of Authority

Errors committed by the trial court

may be considered even if they were
not assigned as errors ( Arao vs
COMELEC 210 SCRA 290)
XIII.CRIMINAL OFFENSES
A,.
Criminal and Electorate Aspects of An
Election Offense
An election offense has criminal as well as
electoral aspects ( Sunga vs
COMELEC
288 SCRA 76)

52

C.

Offenses
1.
Vote-buying
a.
The fact that at least one
voter in at least 20% of the precincts in a
municipality , city or province was offered money
by the relatives, leaders or sympathizers of a
candidate to promote his election shall create a
presumption of conspiracy to bribe voters.
b.
The fact that at least 20% of
the precincts of the municipality, city or province
to which the office aspired for by the candidate is
affected by the offer creates the presumption
that the candidate and his campaign managers
are involved in the conspiracy.
c.
Any person who is guilty
and willingly testifies shall be exempt from
prosecution ( Sec 28, RA 6646)

1.
Its criminal aspect involves the
ascertainment of the guilt or innocence of
the accused candidate like in any
other criminal case, it usually entails a
full-blown hearing and the quantum
of proof required to secure a
conviction beyond reasonable
doubt .
2.
Its electoral aspect is a
determination of whether the offender should be
qualified from office. This is
done through administrative proceeding
which is summary in character and
requires only a clear preponderance of
evidence.

d.
The traditional gift-giving by
the municipality during Christmas which was
done to induce voters for the mayor does not
constitute vote-buying ( Lozano vs Martinez, 285
SCRA 256)

B.

Mere presence of unauthorized

person inside a polling place is an offense
( COMELEC vs Romillo, 158 SCRA 716)
4.
Transfers
of
Government
Employees

Jurisdiction to try the case

The expanded jurisdiction of the Municipal
Trail Court ( RA 7691) does not include criminal
cases involving election offenses, because by
special provision of Sec 268 of BP 881 they fall
within the jurisdiction of the Regional Trial Court (
COMELEC vs Noynay 292 SCRA 354)
Under Sec 268 of BP 881, regional trial
courts have exclusive jurisdiction to try and
decide any criminal action or proceeding for
violation of the Code including those penalized
by imprisonment not exceeding 6 years, but
except those relating to the offense of failure to
vote ( Juan vs People 322 SCRA 125)

2.

Appointment of New Employees

The
prohibition
against
appointment of a government employee within 45
days before regular election refers to positions
covered by the civil service and does not apply to
the replacement of a councilor who died ( Ong vd
Martinez, 188 SCRA 830)
3.

Unauthorized Entry into Polling

Place

Since the Omnibus Election Code

does not per se prohibit the
transfer of government employees
during the election period but only
penalizes such transfers made
without the prior approval of the
COMELEC in accordance with the
implementing
regulations, the
transfer of government employees
before the publication of the

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implementing regulations is not an

election offense. ( People vs
Reyes, 247 SCRA 328)
Two elements of the offense
prescribed under Sec 261 (h) of BP 881, as
amended are: (1) a public
officer or employee is transferred or detailed
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 ( Regalado vs CA
325 SCRA 516)
5.

Carrying Deadly Weapon in Precinct

To support a conviction carrying a deadly

weapon inside a precinct, it is necessary that
the deadly weapon be seized from the accused
while he was in precinct
( Mappala vs
Munoz 240 SCRA 600)
6.

Failure to make Proclamation

Proclaiming a losing candidate instead of

the winner also constitutes failure to
make
a proclamation ( Agujetas vs CA 261 SCRA 17)
7.

Refusing to credit candidate with vote

Under section 27(b) of RA 6646,
two act not one, are penalized i.e, first, the
tampering, increasing or decreasing of votes
received by a candidate in any election, and
second, the refusal, after proper verification and
hearing to credit the correct votes or deduct such
tampered votes.(Pimentel vs. COMELEC,289
SCRA 586)
D.

Prosecution

1.
Section 2(6),Art IX-C File, upon a verified
complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute
cases of violations of election laws, including acts
or omissions constituting election frauds,
offenses, and malpractices.
The COMELEC has exclusive jurisdiction
to conduct preliminary investigation of and

53

prosecute election offenses

Lavilles,254 SCRA 286)
2.

(Naldaza

vs.

This holds true even if the offense is

committed by a public officer in relation to
his office.(Corpuz vs. Tanodbayan, 149
SCRA 2281)

3.
Whatever initiated motu propio or filed
with the COMELEC by any other party, the
complaint shall be referred to the COMELEC Law
Department for investigation.. The COMELEC
Chairman, in his personal capacity may file
directly with the COMELEC Law Department
pursuant to Section 4, Rule 34 of the COMELEC
Rules of Procedure. No requirement in section 5
that only the COMELEC en banc may refer a
complaint to the Law Department for
investigation nor is there a rule against the
COMELEC Chairman directing the conduct of a
preliminary investigation, even if he himself were
the complainant in his private capacity Where
the complaint was directly filed with the Law
Department under Section 4 of Rule 32 of the
COMELEC RULES of Procedure obviously there
is no need to refer such complaint to the same
Law Department Under Section 5 of Rule 34 of
the COMELEC Rules of Procedure, the
preliminary investigation may be delegated to
any of those officials specified in the rule upon
the direction of the COMELEC Chairman(Laurel
vs. Presiding Judge, RTC Manila Br 10, 323
SCRA 778)
4.
A provincial election supervisor
authorized to conduct a preliminary investigation
may file a case without need of approval of the
provincial prosecutor. (Pp. Vs. Inting,187 SCRA
788)
The COMELEC can deputize prosecutors to
investigate and prosecute offenses even
after election. (Pp. Vs. Basilla,179 SCRA
87)
Since it is a preliminary investigation, it is the
COMELEC who will determine the
existence of probable cause, the
complainant cannot ask it to gather
evidence in support of the complaint.
(Kilosbayan Inc vs. COMELEC,280 SCRA
8920

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The court in which a criminal case was filed may

order the COMELEC to order a
reinvestigation. (Pp. Vs. Delgado, 189
SCRA 715)
A prosecutor who was deputized by the
COMELEC cannot oppose the appeal
filed by the COMELEC from the dismissal
of a case, since the power to prosecute
election offenses is vested in the
COMELEC.(COMELEC vs. Ssilva,286
SCRA 177)

54