ELECTION LAW MAJOR QUIZ REVIEWER2B Reviewer

V.   CAMPAIGN, ELECTION PROPAGANDA and EXPENDITURES   Secs. 79-93; 94-112, BP 881

BATAS PAMBANSA BLG. 881

OMNIBUS ELECTION CODE OF THE PHILIPPINES

ARTICLE XCAMPAIGN AND ELECTION PROPAGANDA

Section 79. Definitions. - As used in this Code:

(a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties;

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.

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

before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election.

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

Section 82. Lawful election propaganda. - Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted.

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

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

Section 85. Prohibited forms of election propaganda. - It shall be unlawful:

(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84 hereof;

(b) To erect, put up, make use of, attach, float or

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display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party;

(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate;

(d) To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audio-visual units or other screen projections except telecasts which may be allowed as hereinafter provided; and

(e) For any radio broadcasting or television station to sell or give free of charge air time for campaign and other political purposes except as authorized in this Code under the rules and regulations promulgated by the Commission pursuant thereto.

Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission.

Section 86. Regulation of election propaganda through mass media. -

(a) The Commission shall promulgate rules and regulations regarding the sale of air time for partisan political purposes during the campaign period to insure the equal time as to duration and quality in available to all candidates for the same office or political parties at the same rates or given free of charge; that such rates are reasonable and not higher than those charged other buyers or users of air time for non-political purposes; that the provisions of this Code regarding the limitation of expenditures by candidates and political parties and contributions by private persons, entities and institutions are effectively enforced; and to ensure that said radio broadcasting and television stations shall not unduly allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including said candidate and/or political party in such program respecting, however, in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest.

(b) All contracts for advertising in any newspaper, magazine, periodical or any form of publication promoting or opposing the candidacy of any person for public office shall, before its implementation, be registered by said newspaper, magazine, periodical or publication with the Commission. In every case, it shall be signed by the candidate concerned or by the duly authorized representative of the political party.

(c) No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period.

Any radio or television stations, including that owned or controlled by the Government, shall give free of charge equal

time and prominence to an accredited political party or its candidates if it gives free of charge air time to an accredited political party or its candidates for political purposes.

In all instances, the Commission shall supervise the use and employment of press, radio and television facilities so as to give candidates equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in this Code on election spending.

Rules and regulations promulgated by the Commission under and by authority of this section shall take effect on the seventh day after their publication in at least two daily newspapers of general circulation. Prior to the effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through the mass media.

Violation of the rules and regulations of the Commission issued to implement this section shall be an election offense punishable under Section 264 hereof.

Section 87. Rallies, meetings and other political activities. - Subject to the requirements of local ordinances on the issuance of permits, any political party supporting official candidates or any candidate individually or jointly with other aspirants may hold peaceful political rallies, meetings, and other similar activities during the campaign period: Provided, That all applications for permits to hold meetings, rallies and other similar political activities, receipt of which must be acknowledged in writing and which application shall be immediately posted in a conspicuous place in the city or municipal building, shall be acted upon in writing by local authorities concerned within three days after the filing thereof and any application not acted upon within said period shall be deemed approved: and Provided, further, That denial of any application for said permit shall be appealable to the provincial election supervisor or to the Commission whose decision shall be made within forty-eight hours and which shall be final and executory: Provided, finally, That one only justifiable ground for denial is a prior written application by any candidate or political party for the same purpose has been approved.

Section 88. Public rally. - Any political party or candidate shall notify the election registrar concerned of any public rally said political party or candidate intends to organize and hold in the city or municipality, and within seven working days thereafter submit to the election registrar a statement of expenses incurred in connection therewith.

Section 89. Transportation, food and drinks. - It shall be unlawful for any candidate, political party, organization, or any person to give or accept, free of charge, directly or indirectly, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; or to give or contribute, directly or indirectly, money or things of value for such purpose.

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

Section 91. Comelec poster area. - Whenever practicable, the

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

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

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

ARTICLE XIELECTORAL CONTRIBUTIONS AND EXPENDITURES

Section 94. Definitions. - As used in this Article:

(a) The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area.

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

(c) The term "person" includes an individual, partnership, committee, association, corporation, and any other organization or group of persons.

Section 95. Prohibited contributions. - No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following:

(a) Public or private financial institutions: Provided, however, That nothing herein shall prevent the making of any loan to a candidate or political party by any such public or private financial institutions legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business;

(b) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation;

(c) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works;

(d) Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations;

(e) Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations;

(f) Educational institutions which have received grants of public funds amounting to no less than P100,000.00;

(g) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and

(h) Foreigners and foreign corporations.

It shall be unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated herein.

Section 96. Soliciting or receiving contributions from foreign sources. - It shall be unlawful for any person, including a political party or public or private entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or nature from any foreign national, government or entity for the purposes of influencing the results of the election.

Section 97. Prohibited raising of funds. - It shall be unlawful for any person to hold dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, or cinematographic, theatrical or other performances for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; or for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including election day; Provided, That normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition.

Section 98. True name of contributor required. - No person shall make any contribution in any name except his own nor shall any candidate or treasurer of a political party receive a contribution or enter or record the same in any name other than that of the person by whom it was actually made.

Section 99. Report of contributions. - Every person giving contributions to any candidate, treasurer of the party, or authorized representative of such candidate or treasurer shall, not later than thirty days after the day of the election, file with

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the Commission a report under oath stating the amount of each contribution, the name of the candidate, agent of the candidate or political party receiving the contribution, and the date of the contribution.

Section 100. Limitations upon expenses of candidates. - No candidate shall spend for his election campaign an aggregate amount exceeding one peso and fifty centavos for every voter currently registered in the constituency where he filed his candidacy: Provided, That the expenses herein referred to shall include those incurred or caused to be incurred by the candidate, whether in cash or in kind, including the use, rental or hire of land, water or aircraft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided, further, That where the land, water or aircraft, equipment, facilities, apparatus and paraphernalia used is owned by the candidate, his contributor or supporter, the Commission is hereby empowered to assess the amount commensurate with the expenses for the use thereof, based on the prevailing rates in the locality and shall be included in the total expenses incurred by the candidate.

Section 101. Limitations upon expenses of political parties. - A duly accredited political party may spend for the election of its candidates in the constituency or constituencies where it has official candidates an aggregate amount not exceeding the equivalent of one peso and fifty centavos for every voter currently registered therein. Expenses incurred by branches, chapters, or committees of such political party shall be included in the computation of the total expenditures of the political party.

Expenses incurred by other political parties shall be considered as expenses of their respective individual candidates and subject to limitation under Section 100 of this Code.

Section 102. Lawful expenditures. - To carry out the objectives of the preceding sections, no candidate or treasurer of a political party shall, directly or indirectly, make any expenditure except for the following purposes:

(a) For travelling expenses of the candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto;

(b) For compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign;

(c) For telegraph and telephone tolls, postage, freight and express delivery charges;

(d) For stationery, printing and distribution of printed matters relative to candidacy;

(e) For employment of watchers at the polls;

(f) For rent, maintenance and furnishing of campaign headquarters, office or place of meetings;

(g) For political meetings and rallies and the use of sound systems, lights and decorations during said meetings and rallies;

(h) For newspaper, radio, television and other public advertisements;

(i) For employment of counsel, the cost of which shall

not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Section 100 and 101 hereof;

(j) For copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the lists the costs of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Sections 100 and 101 hereof; or

(k) For printing sample ballots in such color, size and maximum number as may be authorized by the Commission and the cost of such printing shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Sections 100 and 101 hereof.

Section 103. Persons authorized to incur election expenditures. - No person, except the candidate, the treasurer of a political party or any person authorized by such candidate or treasurer, shall make any expenditure in support of or in opposition to any candidate or political party. Expenditures duly authorized by the candidate or the treasurer of the party shall be considered as expenditures of such candidate or political party.

The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission signed by the candidate or the treasurer of the party and showing the expenditures so authorized, and shall state the full name and exact address of the person so designated.

Section 104. Prohibited donations by candidates, treasurers of parties or their agents. - No candidate, his or her spouse or any relative within the second civil degree of consanguinity or affinity, or his campaign manager, agent or representative shall during the campaign period, on the day before and on the day of the election, directly or indirectly, make any donation, contribution or gift in cash or in kind, or undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization: Provided, That normal and customary religious dues or contributions, such as religious stipends, tithes or collections on Sundays or other designated collection days, as well as periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period, are excluded from the prohibition.

The same prohibition applies to treasurers, agents or representatives of any political party.

Section 105. Accounting by agents of candidate or treasurer. - Every person receiving contributions or incurring expenditures by authority of the candidate or treasurer of the party shall, on demand by the candidate or treasurer of the party and in any event within five days after receiving such contribution or incurring such expenditure, render to the candidate or the treasurer of the party concerned, a detailed account thereof with proper vouchers or official receipts.

Section 106. Records of contributions and expenditures. -

(a) It shall be the duty of every candidate, treasurer of the political party and person acting under the authority of such candidate or treasurer to issue a receipt for every contribution received and to obtain and keep a receipt stating the particulars of every expenditure made.

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(b) Every candidate and treasurer of the party shall keep detailed, full, and accurate records of all contributions received and expenditures incurred by him and by those acting under his authority, setting forth therein all information required to be reported.

(c) Every candidate and treasurer of the party shall be responsible for the preservation of the records of contributions and expenditures, together with all pertinent documents, for at least three years after the holding of the election to which they pertain and for their production for inspection by the Commission or its duly authorized representative, or upon presentation of a subpoena duces tecum duly issued by the Commission. Failure of the candidate or treasurer to preserve such records or documents shall be deemed prima facie evidence of violation of the provisions of this Article.

Section 107. Statement of contributions and expenditures. - Every candidate and treasurer of the political party shall, not later than seven days, or earlier than ten days before the day of the election, file in duplicate with the office indicated in the following section, full, true and itemized, statement of all contributions and expenditures in connection with the election.

Within thirty days after the day of the election, said candidate and treasurer shall also file in duplicate a supplemental statement of all contribution and expenditures not included in the statement filed prior to the day of the election.

Section 108. Place for filing statements. - The statements of contributions and expenditures shall be filed as follows:

(a) Those of candidates for President and Vice-President, with the Commission.

(b) Those of candidates for Members of the Batasang Pambansa, with the provincial election supervisor concerned, except those of candidates in the National Capital Region which shall be filed with the regional election director of said region.

(c) Those of candidates for provincial offices, with the provincial election supervisor concerned.

(d) Those of candidates for city, municipal and barangay offices, with the election registrar concerned.

If the statement is sent by mail, it shall be by registered mail, and the date on which it was registered with the post office may be considered as the filing date thereof if confirmed on the same date by telegram or radiogram addressed to the office or official with whom the statement should be filed.

The provincial election supervisors and election registrars concerned shall, within fifteen days after the last day for the filing of the statements, send to the Commission duplicate copies of all statements filed with them.

Section 109. Form and contents of statement. - The statement shall be in writing, subscribed and sworn to by the candidate or by the treasurer of the party, shall be complete as of the date next preceding the date of filing and shall set forth in detail (a) the amount of contribution, the date of receipt, and the full name and exact address of the person from whom the contribution was received; (b) the amount of every expenditure, the date thereof, the full name and exact address of the person to whom payment was made, and the purpose of the

expenditure; (c) any unpaid obligation, its nature and amount, and to whom said obligation is owing; and (d) such other particulars which the Commission may require.

If the candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact.

Section 110. Preservation and inspection of statements. - All statements of contributions and expenditures shall be kept and preserved at the office where they are filed and shall constitute part of the public records thereof for three years after the election to which they pertain. They shall not be removed therefrom except upon order of the Commission or of a competent court and shall, during regular office hours, be subject and open to inspection by the public. The officer in-charge thereof, shall, on demand, furnish certified copies of any statement upon payment of the fee prescribed under Section 270 hereof.

It shall be the duty of the Commission to examine all statements of contributions and expenditures of candidates and political parties to determine compliance with the provisions of this Article.

Section 111. Effect of failure to file statement. - In addition to other sanctions provided in this Code, no person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statements required herein within the period prescribed by this Code.

Section 112. Report of contractor and business firms. - Every person or firm to whom any electoral expenditure is made shall, within thirty days after the day of the election, file with the Commission a report setting forth the full names and exact addresses of the candidates, treasurers of political parties, and other persons incurring such expenditures, the nature or purpose of each expenditure, the date and costs thereof, and such other particulars as the Commission may require. The report shall be signed and sworn to by the supplier or contractor, or in case of a business firm or association, by its president or general manager.

It shall be the duty of such person or firm to whom an electoral expenditure is made to require every agent of a candidate or of the treasurer of a political party to present written authority to incur electoral expenditures in behalf of such candidate or treasurer, and to keep and preserve at its place of business, subject to inspection by the Commission or its authorized representatives, copies of such written authority, contracts, vouchers, invoices and other records and documents relative to said expenditures for a period of three years after the date of the election to which they pertain.

It shall be unlawful for any supplier, contractor or business firm to enter into contract involving election expenditures with representatives of candidates or political parties without such written authority.

A. Definition of Election Campaign(Read Page 137, Election Memaid)

B. Lawful/Prohibited Election Propaganda(Read Page 137, Election Memaid)

 

CASES:Election law 5

BADOY VS. COMELEC

Facts: Anacleto D. Badoy, Jr. avers that he is a candidate for delegate to the Constitutional Convention for the lone district of North Cotabato. He prays that Section 12(F) of RA 6132 be declared unconstitutional as the same denies individuals, who are not candidates, their freedom of speech and of the press; and candidates the right to speak and write, discuss and debate in favor of their candidacies or against the candidacies of others. Section 12 (F) provides that the Comelec “shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially among all candidates within the areas in which the newspapers are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate is running are also mentioned with equal prominence.” Comelec Resolution RR-724, as amended, merely restates the ban in Section 12 (F).

Issue: Whether the ban in Section 12 (F) is valid or constitutional.

Held: Under Section 12 (F), the moneyed candidate or individual who can afford to pay for advertisements, comments or articles in favor of his candidacy or against the candidacy of another or which mention his name and the fact of his candidacy, is required to mention all the other candidates in the same district with equal prominence, to exempt him from the penal sanction of the law. The evident purpose of the limitation is to give the poor candidates a fighting chance in the election. The restriction is only one of the measures devised by the law to preserve suffrage pure and undefiled and to achieve the desired equality of chances among all the candidates. Considering the foregoing limitation in Section 12(F) in the light of the other provisions of RA 6132 designed to maximize, if not approximate, equality of chances among the various candidates in the same district, the said restriction on the freedom of expression appears too insignificant to create any appreciable dent on the individual’s liberty of expression. It should be noted that Section 8(a) of the same law, prohibiting political parties from aiding candidates and thus was more restrictive than Section 12(F), was previously upheld to be valid. The limitation in Section 12(F) is a reasoned and reasonable judgment on the part of Congress. It is not unconstitutional.

Point/s to Remember: The freedom of expression is not absolute; it is subject

to the police power of the State. Section 12(F) of RA 6132 gives the poorer candidates to have an equal fighting chance as against to the richer ones.

SANIDAD v COMELEC

Facts: On October 23, 1989, R.A. No. 6766 (An Act Providing for an Organic Act for the Cordillera Autonomous Region) was enacted in to law. Pursuant to said law, all comprising the Cordillera Autonomous Region shall take part in a plebiscite for the ratification of said Organic Act by virtue of Comelec Resolution No. 2226. The Comelec, by virtue of the power vested by the 1987 Constitution, Omnibus Election Code, R.A. No. 6766 and

other pertinent election laws promulgated Resolution No. 2167 to govern the conduct of the plebiscite.Pablito Sanidad, a newspaper columnist of the “OVERVIEW” for the BAGIUO MIDLAND COURIER (a weekly newspaper circulated in Baguio and the Cordilleras), assailed the constitutionality of Sec. 191 of Comelec Resolution No. 2167 for being void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press.Comelec maintains that Section 19 of Resolution No. 2167 is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite period. The commission relied on Article IX-C of the 1987 Constitution and Section 11 of R.A. 66462 (The Electoral Reform Law of 1987)On November 28, 1989, the Supreme Court issued a temporary restraining order, enjoining Comelec from enforcing and implementing Section 19 of Resolution No. 2167.

Issue: Whether or not Section 19 of Resolution No. 2167 is unconstitutional.

Ruling: YES. The evil sought to be prevented by Article IX-C of the 1987 Constitution is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. Regarding Section 19 of Resolution No. 2167, while the limitation does not absolutely bar [petitioner’s] freedom of expression, it is still a restriction on his choice of the forum where he may express his view, for no justifiable reason.Plebiscite issues are matter of public concern and importance. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised.Petition is GRANTED.

NATIONAL PRESS CLUB VS. COMELEC

Facts: Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to be informed of election Issue and of credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No. 66461 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship,

1 Section 19 of Resolution No. 2167: Prohibition on columnists,

commentators or announcers. –During the plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

2 Section 11 of R.A. 6646: Prohibited forms of election Propaganda. –In

addition to the forms of election propaganda prohibited under Sec. 85 of B.P. Blg. 881, it shall be unlawful: x x x

(b) for any newspaper, radio, broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Secs. 90 and 92 of B.P. Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidate for any elective office shall take a leave of absence from his work as such during the campaign period.

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because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinion relevant to election Issue. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the quantity or volume of informationconcerning candidates and Issue in the election thereby curtailing and limiting the right of voters to information and opinion. Issue: Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional.

Held: Yes. It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period." In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and informationenterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods.

Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in factadvertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is not unduly repressive or unreasonable.

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and GMA NETWORK, INC.,

vs.THE COMMISSION ON ELECTIONS

Facts: Petitioner Telecommunications and Broadcast Attorneys of

the Philippines, Inc. is an organization of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates radio and television broadcasting stations throughout the Philippines under a franchise granted by Congress.

Issue: WON B.P. Blg. 881, §92 is an invalid amendment of

petitioner's franchise which violates the due process clause and the eminent domain provision of the Constitution by taking air time from radio and television broadcasting stations without payment of just compensation. NO

Held: As pointed out in our decision in Osmeña v. COMELEC,

§11(b) of R.A. No. 6646 and §90 and §92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity of candidates in an election in regard to the use of mass media for political campaigns.

R.A. No. 6646Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:xxx xxx xxx(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

B.P. Blg. 881, (Omnibus Election Code)Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in every province or city; Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. (Sec. 45, 1978 EC).Sec. 92. Comelec time. — The commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Sec. 46, 1978 EC).

Thus, the law prohibits mass media from selling or donating print space and air time to the candidates and requires the COMELEC instead to procure print space and air time for allocation to the candidates. It will be noted that while §90 of B.P. Blg. 881 requires the COMELEC to procure print space which, as we have held, should be paid for, §92 states that

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air time shall be procured by the COMELEC free of charge. Petitioners' argument is without merit. All broadcasting (sic),

whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amended by Congress in accordance with the constitutional provision that "any such franchise or right granted shall be subject to amendment, alteration or repeal by the Congress when the common good so requires.

It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service.

It is also important to point out that: Under §92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but only the allocation of air time to the candidates for the purpose of ensuring, among other things, equal opportunity, time, and the right to reply as mandated by the Constitution.

In sum, B.P. Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty voluntarily assumed by petitioner in accepting a public grant of privilege.

C. Lawful Expenditures(Read Page 137, Election Memaid)

D. Statement of Contribution and Expenses (Sec. 14, RA 7166)

 Republic Act No. 7166             November 26, 1991

AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS,

AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES

Section 14. Statement of Contributions and Expenditures: Effect of Failure to File Statement. - Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election.

No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act.

Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures.

For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two thousand pesos (P2,000.00) to Sixty thousand pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

Cases: Collado v. COMELEC   (245 SCRA 759) Pillar vs. COMELEC   (245 SCRA 759)

CASES:COLLADO V. COMELEC

JUANITO C. PILAR v. COMELEC

FACTS: This is a petition for certiorari assailing the Resolution of the COMELEC in UND No. 94-040. Petitioner Pilar filed his COC for the position of member of the Sangguniang Panlalawigan of the Province of Isabela. 3 days after, petitioner withdrew his certificate of candidacy. The COMELEC imposed upon petitioner the fine of P10,000.00 for failure to file his statement of contributions and expenditures pursuant to COMELEC Resolution No. 2348, in turn implementing R.A. No. 7166 which provides that:Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election.Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a "non-candidate," having withdrawn his certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clear from the law that candidate must have entered the political contest, and should have either won or lost" COMELEC denied the motion for reconsideration of petitioner and deemed final its first decision. Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition. Hence, this petition for certiorari.

ISSUE: Did Petitioner's withdrawal of his candidacy extinguish his liability for the administrative fine.

HELD: No. Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures. Well-recognized is the rule that where the law does not distinguish, courts should not distinguish. In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy. Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory, and imposes a duty which may be enforced , particularly if public policy is in favor of this meaning or where public interest is involved. We apply the general rule.

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Also, Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy.” It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too remote.

Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred."

VI.   REGISTRATION OF VOTERS   (RA 8189)  A. Definition [RA 8189, Sec. 3 (a)]

Republic Act No. 8189             June 11, 1996

AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING THE PROCEDURES THEREOF AND AUTHORIZING THE APPROPRIATION OF FUNDS THEREFOR

Section 3. Definition of Terms. As used in this Act:

a) Registration refers to the act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board;

B. Who May Register (RA 8189, Sec. 9)

Section 9. Who may Register. All citizens of the Philippines not otherwise disqualified by law who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one (1) year, and in the place wherein they propose to vote, for at least six (6) months immediately preceding the election, may register as a voter.

Any person who temporarily resides in another city, municipality or country solely by reason of his occupation, profession, employment in private or public service, educational activities, work in the military or naval reservations within the Philippines, service in the Armed Forces of the Philippines, the National Police Forces, or confinement or detention in government institutions in accordance with law, shall not be deemed to have lost his original residence.

Any person, who, on the day of registration may not have reached the required age or period of residence but, who, on the day of the election shall possess such qualifications, may register as a voter.

a. Challenge of Right to Register (RA 8189, Sec. 18)

Section 18. Challenges to Right to Register. Any voter, candidate or representative of a registered political party may challenge in writing any application for registration, stating

the grounds therefor. The challenge shall be under oath and be attached to the application, together with the proof of notice of hearing to the challenger and the applicant.

Oppositions to contest a registrant’s application for inclusion in the voter’s list must, in all cases, be filed not later than the second Monday of the month in which the same is scheduled to be heard or processed by the Election Registration Board. Should the second Monday of the month fall on a non-working holiday, oppositions may be filed on the next following working day. The hearing on the challenge shall be heard on the third Monday of the month and the decision shall be rendered before the end of the month.

b. Jurisdiction in Inclusion and Exclusion (RA 8189, Sec. 32)

Section 32. Common Rules Governing Judicial, Proceedings in the Matter of Inclusion, Exclusion, and Correction of Names of Voters.

a) Petition for inclusion, exclusion or correction of names of voters shall be filed during office hours;

b) Notice of the place, date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon filing of the petition. Service of such notice may be made by sending a copy thereof by personal delivery, by leaving it in the possession of a person of sufficient discretion in the residence of the challenged voter, or by registered mail. Should the foregoing procedures not be practicable, the notice shall be posted in the bulletin board of the city or municipal hall and in two (2) other conspicuous places within the city or municipality;

c) A petition shall refer only to one (1) precinct and implead the Board as respondents;

d) No costs shall be assessed against any party in these proceedings. However, if the court should find that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses;

e) Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence;

f) The decision shall be based on the evidence presented and in no case rendered upon a stipulation of facts. If the question is whether or not the voter is real or fictitious, his non-appearance on the day set for hearing shall be prima facie evidence that the challenged voter is fictitious; and

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g) The petition shall be heard and decided within ten (10) days from the date of its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days from receipt of the appeal. In all cases, the court shall decide these petitions not later than fifteen (15) days before the election and the decision shall become final and executory.

C. Qualification / Disqualification of a Voter(Read Page 127, Election Memaid)

D. Activation/Reactivation/Cancellation of voters (RA 8189, Secs. 27-29)

Section 27. Deactivation of Registration. The board shall deactivate the registration and remove the registration records of the following persons from the corresponding precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause or causes of deactivation:

a) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence as certified by the clerks of courts of the Municipal/Municipal Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan;

b) Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law; Provided, That he shall regain his right to vote automatically upon expiration of five (5) years after service of sentence;

c) Any person declared by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration of a proper authority that such person is no longer insane or incompetent;

d) Any person who did not vote in the two (2) successive preceding regular elections as shown by their voting records. For this purpose, regular elections do not include the Sangguniang Kabataan (SK) elections;

e) Any person whose registration has been ordered excluded by the Court; and

f) Any person who has lost his Filipino citizenship.

For this purpose, the clerks of court for the Municipal/Municipal Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan shall furnish the Election Officer of the city or municipality concerned at the end of each month a certified list of persons who are disqualified under paragraph (a) hereof, with their

addresses. The Commission may request a certified list of persons who have lost their Filipino Citizenship or declared as insane or incompetent with their addresses from other government agencies.

The Election Officer shall post in the bulletin board of his office a certified list of those persons whose registration were deactivated and the reasons therefor, and furnish copies thereof to the local heads of political parties, the national central file, provincial file, and the voter concerned.

Section 28. Reactivation of Registration. Any voter whose registration has been deactivated pursuant to the preceding Section may file with the Election Officer a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist any time but not later than one hundred twenty (120) days before a regular election and ninety (90) days before a special election.

The Election Officer shall submit said application to the Election Registration Board for appropriate action.

In case the application is approved, the Election Officer shall retrieve the registration record from the inactive file and include the same in the corresponding precinct book of voters. Local heads or representatives of political parties shall be properly notified on approved applications.

Section 29. Cancellation of Registration. The Board shall cancel the registration records of those who have died as certified by the Local Civil Registrar. The Local Civil Registrar shall submit each month a certified list of persons who died during the previous month to the Election Officer of the place where the deceased are registered. In the absence of information concerning the place where the deceased is registered, the list shall be sent to the Election Officer of the city or municipality of the deceased’s residence as appearing in his death certificate. In any case, the Local Civil Registrar shall furnish a copy of this list to the national central file and the proper provincial file.

The Election Officer shall post in the bulletin board of his office a list of those persons who died whose registrations were cancelled, and furnish copies thereof to the local heads of the political parties, the national central file, and the provincial file.

Cases: Uytengsu v. Republic (95 Phil. 890) Evangelista v. Santos (86 Phil. 387) Romualdez v. RTC of Tacloban (266 SCRA 406) Abella v. COMELEC (201 SCRA 253)

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CASES:In the matter of the petition of WILFREDO UYTENGSU to be

admitted a citizen of the Philippines.WILFRED UYTENGSU VS. REPUBLIC OF THE PHILIPPINES

FACTS: Wilfred Uytengsu was born of Chinese parents in Dumaguete, Negros Oriental on October 6, 1927. He began his primary education at Saint Theresa's College in said municipality. Subsequently, he attended the Little Flower of Jesus Academy then San Carlos College then Siliman University. Early in 1946, he studied for one semester in Mapua Institute of Technology. Soon after, he went to the United States where from 1947-1950, he was enrolled in Leland Stanford Junior University and graduated in 1950. In April 1950, he returned to the Philippines for 4 months vacation.

Then, on July 15, 1950, he filed for naturalization. Forthwith, he returned to the US and took post-graduated course. He finished his course in July 1951 but did not return to the Philippines until October 1951. Hence, the hearing of the case, originally scheduled to take place on July 12, 1951, had to be postponed on motion of counsel for Uytengsu.

ISSUE:Whether or not the application for naturalization may be granted, notwithstanding the fact that Uytengsu left the Philippines immediately after filing of his petition and did not return until several months after the first date set for hearing

HELD: NOIt should be noted that to become a citizen of the Philippines by naturalization, one must reside therein for not less than 10 years except in some special cases, in which 5 years of residence is sufficient. Pursuant to the provision, the petitioner must also file an application stating that he has the qualifications required by the law. Inasmuch these qualifications include the residence requirement already referred to, it follows that the applicant must prove that he is a resident of the Philippines at the time, not only of the filing of the application, but also of its hearing. If the residence thus required is the actual or constructive permanent home, otherwise known as legal residence or domicile, then the applicant must be domiciled in the Philippines on both dates. Consequently, Section 7 of Commonwealth Act no. 473 imposes upon the applicant the duty to state in his sworn application “that he will reside continuously in the Philippines” in the intervening period, it can not refer merely to the need of an uninterrupted domicile or legal residence, irrespective of actual residence. It is well settled rule that whenever possible, a legal provision must not be construed meaningless in the sense of adding nothing to the law or having no effect whatsoever thereon. The clause must be construed as demanding actual residence in the Philippines from the filing of petition for naturalization to its determination by the court. Although the words “residence” and “domicile are often used interchangeable, each has, in strict legal parlance, a meaning distinct and different from that of the other. The essential distinction between residence and domicile is this: the first involves the intent to leave when the purpose for which has taken up his abode ceases; the other has no such intent, the abiding is animo manendi.Such distinction was, in effect, applied in Dy v. Republic. The question arose whether, having been domiciled in the Philippines for every 30 years, he could be naturalized as a citizen of the Philippines, without previous declaration of intention in view of section 6 of CA 473, exempting from such requirement “those who have resided in the Philippines continuously for a period of thirty years or more, before filing their application.” Supreme

Court decided the question in negative upon the ground that “actual and substantial residence within the Philippines, not legal residence” or “domicile” alone is essential to the enjoyment of the benefits of said exemption.If said actual and substantial residence- not merely legal residence- is necessary to dispense with the filing of a declaration of intention, it is even more necessary during the period intervening from the filing of the petition for naturalization to the date of hearing thereof.

JUAN D. EVANGELISTA ET AL., vs.   RAFAEL SANTOS .

Facts:The complaint alleges that plaintiffs are minority stockholders of the Vitali Lumber Company, Inc., a Philippine corporation organized for the exploitation of a lumber concession in Zamboanga, Philippines. The defendant holds more than 50 percent of the stocks of said corporation and also is and always has been the president, manager, and treasurer thereof; and that defendant, in such triple capacity, through fault, neglect, and abandonment allowed its lumber concession to lapse and its properties and assets, among them machineries, buildings, warehouses, trucks, etc., to disappear, thus causing the complete ruin of the corporation and total depreciation of its stocks. The complaint therefore prays for judgment requiring defendant: (1) to render an account of his administration of the corporate affairs and assets: (2) to pay plaintiffs the value of their respective participation in said assets on the basis of the value of the stocks held by each of them; and (3) to pay the costs of suit. Plaintiffs also ask for such other remedy as may be and equitable. The complaint does not give plaintiffs' residence, but, but purposes of venue, alleges that defendant resides at 2112 Dewey Boulevard, corner Libertad Street, Pasay, province of Rizal. Having been served with summons at that place, defendant filed a motion for the dismissal of the complaint on the ground of improper venue and also on the ground that the complaint did not state a cause of action in favor of plaintiffs. In support of the objection to the venue, the motion, which is under oath, states that defendant is a resident of Iloilo City and not of Pasay, and at the hearing of the motion defendant also presented further affidavit to the effect that while he has a house in Pasay, where members of his family who are studying in Manila live and where he himself is sojourning for the purpose of attending to his interests in Manila, yet he has permanent residence in the City of Iloilo where he is registered as a voter for election purposes and has been paying his residence certificate. Plaintiffs opposed the motion for dismissal but presented no counter proof and merely called attention to the Sheriff's return showing service of summons on defendant personally at his alleged residence at No. 2112 Dewey Boulevard, Pasay.v

Issue:Whether or not the plaintiffs have the right to bring this action for their benefit?

Held:The complaint shows that the action is for damages resulting from mismanagement of the affairs and assets of the corporation by its principal officer, it being alleged that defendant's maladministration has brought about the ruin of the corporation and the consequent loss of value of its stocks. The injury complained of is thus primarily to the corporation, so that the suit for the damages claimed should be by the corporation rather than by the stockholders (3 Fletcher, Cyclopedia of Corporation pp. 977-980). The stockholders may not directly claim those damages for themselves for that would result in the appropriation

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by, and the distribution among them of part of the corporate assets before the dissolution of the corporation and the liquidation of its debts and liabilities, something which cannot be legally done in view of section 16 of the Corporation Law, which provides:

No shall corporation shall make or declare any stock or bond dividend or any dividend whatsoever from the profits arising from its business, or divide or distribute its capital stock or property other than actual profits among its members or stockholders until after the payment of its debts and the termination of its existence by limitation or lawful dissolution.

But while it is to the corporation that the action should pertain in cases of this nature, however, if the officers of the corporation, who are the ones called upon to protect their rights, refuse to sue, or where a demand upon them to file the necessary suit would be futile because they are the very ones to be sued or because they hold the controlling interest in the corporation, then in that case any one of the stockholders is allowed to bring suit (3 Fletcher's Cyclopedia of Corporations, pp. 977-980). But in that case it is the corporation itself and not the plaintiff stockholder that is the real property in interest, so that such damages as may be recovered shall pertain to the corporation (Pascual vs. Del Saz Orosco, 19 Phil. 82, 85). In other words, it is a derivative suit brought by a stockholder as the nominal party plaintiff for the benefit of the corporation, which is the real property in interest (13 Fletcher, Cyclopedia of Corporations, p. 295). In the present case, the plaintiff stockholders have brought the action not for the benefit of the corporation but for their own benefit, since they ask that the defendant make good the losses occasioned by his mismanagement and pay to them the value of their respective participation in the corporate assets on the basis of their respective holdings. Clearly, this cannot be done until all corporate debts, if there be any, are paid and the existence of the corporation terminated by the limitation of its charter or by lawful dissolution in view of the provisions of section 16 of the Corporation Law. It results that plaintiff's complaint shows no cause of action in their favor so that the lower court did not err in dismissing the complaint on that ground. While plaintiffs ask for remedy to which they are not entitled unless the requirement of section 16 of the Corporation Law be first complied with, we note that the action stated in their complaint is susceptible of being converted into a derivative suit for the benefit of the corporation by a mere change in the prayer. Such amendment, however, is not possible now, since the complaint has been filed in the wrong court, so that the same last to be dismissed.The order appealed from is therefore affirmed, but without prejudice to the filing of the proper action in which the venue shall be laid in the proper province. Appellant's shall pay costs. So ordered.

PHILIP G. ROMUALDEZ vs. REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA,

BOARD OF ELECTION INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA, LEYTE, and the MUNICIPAL

REGISTRAR COMELEC, TOLOSA, LEYTE

FACTS: The petitioner is Philip Romualdez, a natural born citizen of the Philippines, the son of the former Governor of Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then First Lady Imelda Marcos. Sometime in the early part of 1980, the petitioner, in consonance with his decision to establish his legal residence at Barangay Malbog, Tolosa, Leyte, caused the construction of his residential house therein. He soon thereafter also served as Barangay Captain of the place. In the 1984 Batasan Election and

1986 "snap" Presidential Election, Romualdez acted as the Campaign Manager of the Kilusang Bagong Lipunan (KBL) in Leyte where he voted.

When the eventful days from the 21st to the 24th of February, 1986, came or were about to come to a close, some relatives and associates of the deposed President, fearing for their personal safety, whether founded or not, "fled" the country. Petitioner Romualdez, for one, together with his immediate family, left the Philippines and sought "asylum" in the United States which the United States (U.S.) government granted. While abroad, he took special studies on the development of Leyte-Samar and international business finance.

In the early part of 1987, Romualdez attempted to come back to the Philippines to run for a congressional seat in Leyte. On 23 March 1987, he finally decided to book a flight back to the Philippines but the flight was somehow aborted.

On 25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District Director of the U.S. Immigration and Naturalization Service, informing him that he should depart from the U.S. at his expense on or before 23 August 1992.

Upon receipt of the letter, Romualdez departed from the U.S. for the Philippines, arriving on December 1991 apparently without any government document.

When Romualdez arrived in the Philippines, he did not delay his return to his residence at Malbog, Tolosa, Leyte. During the registration of voters conducted by the Commission on Election ("COMELEC") on 01 February 1992 for the Synchronized National and Local Election scheduled for 11 May 1992, petitioner registered himself anew as a voter at Precinct No. 9 of Malbog, Tolosa, Leyte. The chairman of the Board of Election Inspectors, who had known Romualdez to be a resident of the place and, in fact, an elected Barangay Chairman of Malbog in 1982, allowed him to be registered.

Romualdez's registration, however, was not to be unquestioned. On 21 February 1992, herein private respondent Donato Advincula ("Advincula") filed a petition with the Municipal Trial Court of Tolosa, Leyte, praying that Romualdez be excluded from the list of voters in Precinct No. 9 of Malbog, Tolosa, Leyte, under BP 881 and RA 7166. Advincula alleged that Romualdez was a resident of Massachusetts, U.S.A.; that his profession and occupation was in the U.S.A.; that he had just recently arrived in the Philippines; and that he did not have the required one-year residence in the Philippines and the six-month residence in Tolosa to qualify him to register as a voter in Barangay Malbog, Tolosa, Leyte.

On 25 February 1992, Romualdez filed an answer, contending that he has been a resident of Tolosa, Leyte, since the early 1980's, and that he has not abandoned his said residence by his physical absence therefrom during the period from 1986 up to the third week of December 1991.

After due hearing, the Municipal Court of Tolosa, Leyte rendered a decision on 28 February 1992 in favor of herein petitioner. Upon receipt of the adverse decision, Advincula appealed the case to the respondent court, which rendered decision against herein petitioner. Hence, this recourse.

On 7 May 1992, this Court issued a temporary restraining order directing respondent Regional Trial Court Judge Pedro Espino to cease and desist from enforcing questioned decision.

ISSUE:

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Whether or not the respondent court erred in finding the petitioner to have voluntarily left the country and abandoned his residence in Malbog, Tolosa, Leyte?

HELD: YES. The Solicitor General himself sustains the view of petitioner Romualdez. Expressing surprise at this stance given by the Solicitor General, respondent Advincula posits non sequitur argument in his comment assailing instead the person of Solicitor Edgar Chua.

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile", which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. That residence, in the case of the petitioner, was established during the early 1980's to be at Barangay Malbog, Tolosa, Leyte. Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, 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. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.

The political situation brought about by the "People's Power Revolution" must have truly caused great apprehension to the Romualdezes, as well as a serious concern over the safety and welfare of the members of their families. Their going into self-exile until conditions favorable to them would have somehow stabilized is understandable. Certainly, their sudden departure from the country cannot be described as "voluntary," or as "abandonment of residence" at least in the context that these terms are used in applying the concept of "domicile by choice."

We have closely examined the records, and we find not that much to convince us that the petitioner had, in fact, abandoned his residence in the Philippines and established his domicile elsewhere.

It must be emphasized that the right to vote is a most precious political right, as well as a bounden duty of every citizen, enabling and requiring him to participate in the process of government so as to ensure that the government can truly be said to derive its power solely from the consent of the governed. We, therefore, must commend respondent Advincula for spending time and effort even all the way up to this Court, for as the right of suffrage is not to be abridged, so also must we safeguard and preserve it but only on behalf of those entitled and bound to exercise it.

ABELLA vs. COMELEC

Petitioner: BENJAMIN P. ABELLARespondents: COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL[G.R. No. 100710 September 3, 1991]

Petitioner: ADELINA Y. LARRAZABALRespondents: COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ[G.R. No. 100739 September 3, 1991]

FACTS:

Initially, Silvestre dela Cruz (Benjamin Abella was allowed to intervene) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte.

It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office.

The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said area, sought to take his oath as governor ofKananga, Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, thematter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City."

ISSUES Whether or not the candidate who got the second highest

vote may be proclaimed as governor when the candidate for such position was disqualified.

Whether or not the petitioner is a registered voter of Kananga, Leyte [the petitioner insists that she is such a registered voter based on the following antecedents: 1 She cancelled her registration in Ormoc City on Nov 25, 1987, and 2 she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (Feb 1, 1988) in Kananga, Leyte.]

Whether or not Abella can assume position of governor by virtue of Section 6 RA 6646.

HELDIssue #1: The Supreme Court held that while it is true that SPC No.

88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of February 1, 1988 in the provinceof Leyte proceeded with Larrazabal considered as a bona fide candidate.

The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate.

As regards the principle of ANIMUS REVERTENDI [Faypon v. Quirino:[M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient toconstitute abandonment or loss of such residence.' The determination of a persons legal residence or domicile

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largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.]

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself aresident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present.

The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives although for intents and purposes we have already transferred our residence toother places.

Issue #2: We find the version pressed by respondent unworthy of

belief. The story is marked by so many bizarre circumstances not consistent with the ordinary course of events or the natural behavior of persons. Among these are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope; (2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; (3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else; (4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; (5) All the members of the BEI had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM (6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed; (7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. (8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct. The most telling evidence is the list of voters, that the

Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only 9 additional registered voters in Precinct 17, petitioner was not there. It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for thefirst time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names.

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides:

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following

conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials.

The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition.

Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices.

The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official."

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the electionFOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote."

The Court finds the petitioner's interpretation fallacious. In the case of Mapa v. Arroyo, the conjunction and between the phrase shall not be qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte."

Issue #3: Abella claims that the Frivaldo and Labo cases were

misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of

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candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted.

The votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate.

In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position.

It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, with three dissenting and another two reserving their vote. One was on official leave.

... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all

republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legalvotes cast in the election.

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not 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. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there.

However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

VII.   BOARD OF ELECTION INSPECTORS   (BEI)  A. Composition and Qualifications of BEI [Section 1

and 2, COMELEC Resolution No. 8739, December 29, 2009; Section 3, RA 8436 (as amended by RA 9369) ]

COMELEC RESOLUTION NO. 8739

GENERAL INSTRUCTIONS FOR THE BOARD OF ELECTION INSPECTORS (BEI) ON THE VOTING, COUNTING, AND

TRANSMISSION OF RESULTS IN CONNECTION WITH THE 10 MAY 2010, NATIONAL AND LOCAL ELECTIONS.

Section 1. Board of Election Inspectors (BEI); constitutiuon and appointment. – The Commission on Elections, through its Election Officer, shall constitute not later than January 8, 2010, the BEI for each precinct/clustered precinct from the list of all public school teachers submitted by the Department of Education's (DepEd) highest official within the city/municipality/school district.

The BEI shall be composed of a Chairman and two (2) members, one of whom shall be designated as poll clerk, and all of whom shall be public school teachers, giving preference to those with permanent appoinment and those who served in the immediately preceding National and Local Elections.

In all cases, the Election Officer shall ensure that at least one (1) member of the BEI shall be an information technology-capable person as certified by the Department of Science and Technology (DOST) after the training of the same.

In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or citizens of known probity and competence who are registered voters of the city or municipality may be appointed as members of the BEI; provided that the chairman shall be a public school teacher.

Section 2. Qualifications of members of the BEI. - No person shall be appointed as chairman or member of the BEI, whether regular, substitute or temporary, unless he:

a) Is of good moral character and irreproachable reputation;

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b) Is a registered voter of the city or municipality;

c) Has never been convicted of any election offense or of any other crime punishable by more than six(6) months of imprisonment;

d) Has no pending case against him filed in COMELEC/court for any election offense; and

e) Is able to speak, read and write English or the local dialect.

Republic Act No. 8436             December 22, 1997Amended by RA 9369

AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSESSection 3. Qualifications, rights and limitations of the special members of the Board of Election Inspectors. - No person shall be appointed as a special member of the board of election inspectors unless he/she is of good moral character and irreproachable reputation, a registered voter, has never been convicted of any election offense or of any crime punishable by more than six (6) months imprisonment or if he/she has pending against him/her an information for any election offense or if he/she is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or any special member of the same board of Election Inspector or to any candidate for a national position or to a nominee as a party list representative or his/her spouse. The special members of the board shall enjoy the same rights and be bound by the same limitations and liabilities of a regular member of the board of election inspectors but shall not vote during the proceedings of the board of election inspectors except on matters pertaining to the national ballot.

B. Disqualification of BEI [Section 3 and 4, COMELEC Resolution No. 8739, December 29, 2009; Section 167, BP 881 ]

Section 3. Disqualification. - No person shall serve as chairman or member of the BEI if he or his spouse is related within the fourth civil degree of consanguinity or affinity to any member of the same BEI or to any candidate to be voted for or to the latter's spouse. Violation of this provision shall constitute an election offense as provided in Section 261 (bb), sub-par (3) of the Omnibus Election Code.

Section 4. Notice of disqualification. - Any c hairman or member of the BEI who is disqualified for any reason shall immediately notify the Election Officer of such fact in writing, who shall in turn, appoint a substitute.

Section 167. Disqualification. - No person shall serve as chairman or member of the board of election inspectors if he is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or to any candidate to be voted for in the polling place or his spouse.

C. Powers of BEI [Section 10, COMELEC Resolution No. 8739, December 29, 2009; Section 168, BP 881]

Section 10. Power and functions of the BEI. - The BEI shall have the following powers and functions:

a) Conduct the voting in the polling place and administer the electronic counting of votes;

b) Print the election returns and trnasmit electronically the election results, through the use of the PCOS machine, to the:

a. City/Municipal Board of Canvassers;

b. dominant majority party, dominant minority party, accredited citizens' arm and KBP; and

c.to the server.

c) Act as deputies of the Commission in the conduct of the elections;

d) Maintain order within the polling place and its premises; keep access thereto open and unobstructed; enforce obedience to its lawful orders and prohibit the use of cellular phones and camera by the voters. If any person refuses to obey the lawful orders of the BEI or conducts himself in a disorderly manner in its presence or within its hearing and thereby interrupts or disturbs its proceedings, the BEI may issue an order in writing directing any peace officer to take said person into custody until the adjournment of the meeting, but such order shall not be executed as to prevent said person from voting. A copy of such written order (Annex "A") shall be attached to the Minutes; and.

e) Perform such other functions prescribed by law or by the rules and regulations promulgated by the Commission.

 Section 168. Powers of the board of election inspectors. - The board of election inspectors shall have the following powers and functions:

a. Conduct the voting and counting of votes in their respective polling places;

b. Act as deputies of the Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; and

c. Perform such other functions prescribed by this Code or by the rules and regulations promulgated by the Commission.

Case: Punzalan v. COMELEC (289 SCRA 702)

CASE:PUNZALAN V. COMELEC

FACTS: Manalastas, Meneses and Punzalan were among of the 4 candidates for mayor of the municipality of Mexico Pampanga. Municipal Board of Canvassers (MBC) proclaimed Meneses as the duly elected mayor. Manalastas and Punzalan separately siled election protests challenging the results of the elections; Meneses filed his answer to both with counter protests: ordered consolidated and jointly tried by the court. Election contests sought the nullification of the election of Meneses allegedly due to massive fraud, irregularities and other illegal electoral

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practices during the registration and voting as well as during the counting of votes. Because of irregularities (massive fraud, illegal electoral practices and serious anomalies; ballots, election returns and tally sheets disappeared under mysterious circumstances and filled up ballots with undetached lower stubs and groups of ballot with stubs cut out with scissors were found inside ballot boxes) found after hearing the protests, the trial court was constrained to examine the contested ballots and the handwritings appearing thereon and came up with the declaration that Punzalan was the winner in the elections various notices of appeal, motions for execution, petitions for certiorari, prohibition with prayer for issuance of temporary restraining order and/or preliminary injunction. Comelec promulgated a resolution affirming the proclamation of Meneses

HELD: On the first issue…

While RA 7166 (An Act Providing for Synchronized National and Local Elections and For Electoral Reforms) requires the BEI chairman to affix his signature at the back of the ballot, the mere failure to do so does not invalidate the same although it may constitute an election offense imputable to said BEI. Failure of the BEI chairman or any of the members of the board to comply with their mandated administrative responsibility should not penalize the voter with disenfranchisement .A ballot without BEI chairman's signature at the back is valid and not spurious .For as long as the ballot bears any one of the following authenticating marks, it is considered valid: o The Comelec watermark o Signature or initials or thumbprint of the Chairman of the BEI o Where the watermarks are blurred or not readily apparent to the naked eye, the presence of red or blue fibers in the ballots

Every ballot shall be presumed to be valid unless there is a clear and good reason to justify its rejection. On the second issue…

The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the Comelec . The Comelec need not conduct an adversarial proceeding or a hearing to determine the authenticity of ballots or the handwriting found thereon; neither does it need to solicit the help of the handwriting experts in examining or comparing the handwriting; even evidence aliunde is not necessary to enable the Commission to determine the authenticity of the ballots and the genuineness of the handwriting on the ballots as an examination of the ballots themselves is already sufficient

Minor and insignificant variations in handwriting must be perceived as indicia of genuineness rather than of falcity.

Carelessness, spontaneity, unpremeditation and speed in signing are evidence of genuineness.

DOCTRINE: The laws and statues governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities.

An election protests is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative.

VIII. WATCHERS   (Sec. 26, RA 7166, as amended by RA 9369

 Section 26. Official Watchers. - Every registered political party or coalition of political parties, and every candidate shall each be entitled to one watcher in every polling place and canvassing center: Provided, That, candidates for the Sangguniang Panlalawigan, Sangguniang Panlungsod, or Sangguniang Bayan belonging to the same slate or ticket shall collectively be entitled to only one watcher.

There shall also be recognized six (6) principal watchers, representing the six (6) accredited major political parties, who shall be designated by the Commission upon nomination of the said parties. These political parties shall be determined by the Commission upon notice and hearing on the basis of the following circumstances:

(a) The established record of the said parties, coalition of groups that now composed them, taking into account, among other things, their showing in past elections;

(b) The number of incumbent elective officials belonging to them ninety (90) days before the date of election;

(c) Their identifiable political organizations and strengths as evidenced by their organized/chapters;

(d) The ability to fill a complete slate of candidates from the municipal level to the position of President; and

(e) Other analogous circumstances that may determine their relative organizations and strengths.

A. Qualifications (Section 15 and 16, COMELEC Resolution No. 8739, December 29, 2009)

ARTICLE IIWATCHERS

Section 15. Official watchers of candidates, political parties and other groups. - Each candidate and registered political party or coalition of political parties duly registered with the Commission and fielding candidates in the election, as well as duly accredited citizens' arms may appoint two watchers, to serve alternately, in every polling place. However, candidates for Senator, can didatyes for Member, Sangguniang Panlalawigan or Sangguniang Panlungsod, or Sangguniang Bayan, belonging to the same ticket or state, shall collectively be entitled to one watcher.

Duly accredited citizens arms of the Commission shall be entitled to appoint a watcher in every polling place. Other civil, professional, business, service, youth, and any other similar organizations, with prior authority of the Commission , shall be entitled collectively to appoint one watcher in every polling place.

If, because of limited space, all watchers cannot be accommodated in the polling place, preference shall be given to the watchers of the dominant majority and dominant minority parties as determined by the Commission and the watcher of the citizens' arm, with the latter being given preferential position closest to the BEI. In case there are two or more

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citizen's arm preference shall be given to the one authorized by the Commission to conduct an unofficial count.

Section 16. Qualification of watchers. - No person shall be appointed watcher unless he:

a) Is a registered voter of the city or municipality comprising the precinct where he is assigned;

b) Is a good reputation;

c) Has not been convicted by final judgment of any election offense or of any other crime;

d) Knows how to read and write Pilipino, English or of the prevailing local dialect; and

e) Is not related within the fourth civil degree of consanguinity or affinity to the chairman or to any other member of the BEI in the polling place where he seeks appoinment as watcher.

B. Rights and duties of watchers (Section 17, COMELEC Resolution No. 8739, December 29, 2009)

Section 17. Rights and duties of watchers. - Upon entering the polling place, the watchers shall deliver to the chairman their appoinments as watchers, and their names shall forthwith be recorded in the Minutes with a notation under their signatures that they are not disqualified to serve as such under the immediately preceding Section. The appointments of the watchers shall bear the signature of the candidate or duly authorized representative of the party, organization or coalition that appointed them. For this purpose, at least fifteen (15) days before election day, independent candidates, registered parties organizations, or coalitions authorized by the Commission to appoint watchers shall provide the Election Officers concerned with the names and signatures of their representatives authorized to appoint watchers in the city or municipality.

The watchers shall have the right to:

a) Witness and inform themselves of the proceedings of the BEI;

b) Take note of what they may see or hear;

c) Take photographs of the proceedings and incidents, if any, during the voting, counting of votes, as well as of the generated election returns and of the ballot boxes;

d) File a protest against any irregularity or violation of law which they believe may have been committed by the BEI or by any of its members or by any person;

e) Obtain from the BEI a certificate as to the filing of such protest and the resolution thereof; and

Watchers shall not speak to any member of the BEI, or to any voter or among themselves, in such a member as would disturb the proceedings of the BEI.

The watchers representing the dominant majority and dominant minority parties fileding candidates and the watcher of the citizen's arm shall, if available, affix their sigantures and

thumbmarks in the election returns.

 

CASE:Liberal Party vs. COMELEC

Case:  Liberal Party vs. COMELEC (GR No. 73515, Feb. 4, 1986)

IX.   OFFICIAL BALLOT, COUNTING OF VOTES AND ELECTION RETURNS

 A. Precinct Count Optical Scan (PCOS) MachineB. (Read Page 141, Election Memaid)

C. Valid Votes and Null Votes

X.   CANVASS AND PROCLAMATION

A. Board of Canvassers(Read Page 142, Election Memaid)

B. Canvassing by Provincial, City District and Municipal Board

C. Duty of the BOCD. Illegal Composition or Proceedings of the Board of

Canvassers[Rule 4, COMELEC Resolution No. 8804, March 22, 2010 ]

IN RE: COMELEC RULES OF PROCEDURE ON DISPUTES IN AN AUTOMATED ELECTION SYSTEM IN CONNECTION WITH THE MAY 10, 2010 ELECTIONS

RESOLUTION No. 8804               March 22, 2010

Rule 4Illegal Composition or Proceedings of the Board of

Canvassers

Section 1. Illegal Composition of the Board of Canvassers. - There is illegal composition of the BOC when, among other similar circumstances, any of the members do not possess legal qualifications and appointments. The information technology capable person required to assist the BOC by Republic Act No. 9369 shall be included as among those whose lack of qualifications may be questioned.

Section 2. Illegal Proceedings of the Board of Canvassers. - There is illegal proceedings of the BOC when the canvassing is a sham or mere ceremony, the results of which are pre-determined and manipulated as when any of the following circumstances are present:

a) precipitate canvassing;

b) terrorism;

c) lack of sufficient notice to the members of the BOC's;

d) Improper venue

Section 3. Where and How Commenced. - Questions affecting the composition or proceedings of the BOC may be initiated in the BOC or directly with the Commission, with a verified petition, clearly stating the specific ground/s for the illegality of the composition and/or proceedings of the board.

Section 4. When to File Petition. - The petition questioning the illegality, or the composition and/or proceedings of the BOC

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shall be filed immediately when the BOC begins to act as such is objected to, if it comes after the canvassing of the Board, or immediately when the proceedings become illegal.

a) In case the petition is filed before the BOC:

a.1) Upon receipt of the verified petition, the BOC shall immediately announce the fact of the filing of said petition and the ground/s raised therein.

a.2) The BOC shall immediately deliberate on the petition, and within a period of twenty-four (24) hours, make a prompt resolution thereon, which resolution shall be reduced into writing.

a.3) Should the BOC decide in favor of the petition, it shall immediately inform the Commission of its resolution. Thereafter, the Commission shall make the appropriate action thereon.

a.4) In no case shall the receipt by the BOC of the electronically transmitted precinct, municipal, city, or provincial results, be suspended by the filing of said petition.

a.5) The petitioner may appeal an adverse resolution by the BOC to the COMELEC, by notifying the BOC of his or her intent to appeal, through a verbal, and a written and verified Notice of Appeal. The notice on the BOC shall not suspend the formal proclamation of the official results of the election, until the final resolution of the appeal.

a.6) Within forty-eight (48) hours from such notice to the BOC, the petitioner shall submit before the Board a Memorandum on Appeal stating the reasons why he resolution being questioned is erroneous and should be reversed.

a.7) Upon receipt by the BOC of the petitioner's memorandum on appeal, the Board shall forward the entire records of the petition at the expense of the petitioner.

a.8) Upon receipt of the records herein referred to, the petition shall be docketed by the Clerk of Commission and submitted to the COMELEC en banc for consideration and decision.

a.9) Within five (5) days therefrom the COMELEC en banc shall render its decision on the appeal.

b) If filed directly with the Commission, the petition shall be heard by the COMELEC en banc under the following procedures. Upon receipt of the petition by the COMELEC, the Clerk of the Commission shall docket the same and forthwith send summons to the BOC concerned with an order directing it to submit, through the fastest verifiable means available, its answer within forty-eight (48) hours.

The COMELEC en banc shall resolve the petition within five (5) days from the filing of the answer, or upon the expiration of the period to file the same.

Section 6. Illegal Proceedings Discovered after Proclamation. - If the illegality of the proceedings of the BOC is discovered after the official proclamation of the supposed results, a verified petition to annual the proclamation may be filed before COMELEC within ten (10) days after the day of proclamation. Upon receipt of the verified petition, the Clerk of the Commission shall have the same docketed and forthwith issue summons to the parties to be affected by the petition, with a directive for the latter to file their answer within five (5) days from receipt. Thereafter the case shall be deemed submitted for resolution, which shall not be later seven (7) days from receipt of the answer.

E. Proclamation

XI.   PRE-PROCLAMATION CONTROVERSY  A. Definition [Rule 3, Section 1, COMELEC Resolution No.

8804, March 22, 2010; Section 241, BP 881 ]

Rule 3Coverage of Pre-Proclamation Controversies

Section 1. Pre-Proclamation Controversy. - A pre-proclamation controversy refers to the proceedings of the board of canvassers which may be raised by any candidates or by any registered political party or coalition of political parties, or by any accredited and participating party list group, before the board or directly with the Commission. It covers only two issues:

a. Illegal composition of the Board of Canvassers (BOC);

b. Illegal proceedings of the BOC.

The basis of the canvass shall be electronically transmitted results.

ARTICLE XXPRE-PROCLAMATION CONTROVERSIES

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

B. Exclusive Jurisdiction of all Pre-Proclamation Controversy: COMELEC [Rule 3, Section 2, COMELEC Resolution No. 8804, March 22, 2010; Section 241, BP 881 ]

Section 2. Jurisdiction of the Commission in Pre-Proclamation Controversies. - COMELEC has exclusive jurisdiction in pre-proclamation controversies arising from national, regional pr local elections.

A pre-proclamation controversy may be raised by any candidate or by any registered political party, organization, or coalition of political parties before the BOC, or directly with the Commission.

Issues affecting the composition or proceedings of the Boards Election law 19

may be initiated by filing a verified petition before the Board or directly with the Commission.

If the petition is filed directly with the Board, its decision may be appealed to the Commission within three (3) days from issuance thereof. However, if commenced directly with the Commission, the verified petition shall be filed immediately when the board begins to act illegally, or at the time of the appointment of the member of the board whose capacity to sit as such is objected to.

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

 Cases: Chavez v. COMELEC   (211 SCRA 315) Torres v. COMELEC  (270 SCRA 583) Ramirez v. COMELEC   (270 SCRA 590) Dipatuan v. COMELEC   (185 SCRA 86)

CASES:FRANCISCO I. CHAVEZ vs.COMMISSION ON ELECTIONS

Facts:On May 5, 1992, this Court issued a Resolution in G.R.

No. 104704, entitled "Francisco Chavez v. Comelec, et al.," disqualifying Melchor Chavez, private respondent therein, from running for the Office of Senator in the May 11, 1992 elections.

Said resolution was received by respondent Comelec on May 6, 1992. On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to delete the name of Melchor Chavez from the list of qualified candidates. However, it failed to order the crediting of all "Chavez" votes in favor of petitioner as well as the cancellation of Melchor Chavez' name in the list of qualified candidates.

According to petitioner, the Comelec failed to perform its mandatory function under Sec. 7, RA 7166 which states that if a candidate has been disqualified, it shall be the duty of the Commission to instruct without delay the deletion of the name of said candidate.

Thus, the name of Melchor Chavez remained undeleted in the list of qualified candidates on election day. Confusion arose, allegedly nationwide, as the "Chavez" votes were either declared stray or invalidated by the Boards of Election Inspectors (BEIs).

On May 11, 1992, Commissioner Rama of respondent Comelec issued a directive over radio and TV ordering all "Chavez" votes to be credited in favor of petitioner. Petitioner contends that the radio and TV announcements did not reach the BEI at the 170,354 precincts nationwide. As a result, "Chavez" votes were not credited in favor of petitioner.

On May 12, 1992, Comelec issued another Resolution directing all municipal and city election registrars throughout the country to examine the minutes of voting submitted by the BEIs and to credit all the "Chavez" votes, which have been declared stray or invalidated by the BEIs, in favor of petitioner.

Petitioner maintains that the said resolution proved futile because it did not reach all the various BEIs of the 170,354 election precincts throughout the country on time for implementation and that the minutes of voting did not indicate the number of "Chavez" votes which were declared stray or

invalidated.On May 14, 1992, petitioner sent a letter to the Comelec

requesting the latter to devise ways and means in crediting "Chavez" votes in his favor but the respondent Commission failed to act on said letter/complaint.

On May 23, 1992, petitioner filed an urgent petition before the respondent Comelec praying the latter to (1) implement its May 12, 1992 resolution with costs de officio; (2) to re-open the ballot boxes in 13 provinces including the National Capital Region involving some 80,348 precincts (p. 9 of petition) and to scan for the "Chavez" votes for purposes of crediting the same in his favor; (3) make the appropriate entries in the election returns/certificates of canvass; and (4) to suspend the proclamation of the 24 winning candidates.

Issue:Whether petitioner’s case should be resolved first before

COMELEC could proclaim the 24th winning senatorial candidate

Held:No. The alleged inaction of respondent Comelec in

ordering the deletion of Melchor Chavez's name in the list of qualified candidates does not call for the exercise of the Court's function of judicial review. This Court can review the decisions or orders of the Comelec only in cases of grave abuse of discretion committed by it in the discharge of its quasi-judicial powers and not those arising from the exercise of its administrative functions. Respondent Commission's alleged failure to implement its own resolution is undoubtedly administrative in nature, hence, beyond judicial interference

While the Commission has exclusive jurisdiction over pre-proclamation controversies involving local elective officials (Sec. 242, Omnibus Election Code), nevertheless, pre-proclamation cases are not allowed in elections for President, Vice-President, Senator and Member of the House of Representatives.

It is clear from Sec 15 of Republic Act 7166 that "pre-proclamation cases (are) not allowed in elections for President, Vice-President, Senator and Member of the House of Representatives.'' What is allowed is the correction of "manifest errors in the certificate of canvass or election returns." To be manifest, the errors must appear on the face of the certificates of canvass or election returns sought to be corrected and/or objections thereto must have been made before the board of canvassers and specifically noted in the minutes of their respective proceedings.

It is quite obvious that petitioner's prayer does not call for the correction of "manifest errors in the certificates of canvass or election returns" before the Comelec but for the re-opening of the ballot boxes and appreciation of the ballots contained therein. Indeed, petitioner has not even pointed to any "manifest error" in the certificates of canvass or election returns he desires to be rectified. There being none, petitioner's proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

In the case at bar, petitioner's allegation that "Chavez" votes were either invalidated or declared stray has no relation to the correctness or authenticity of the election returns canvassed. Otherwise stated, petitioner has not demonstrated any manifest error in the certificates of canvass or election returns before the Comelec which would warrant their correction. As the authenticity of the certificates of canvass or election returns are not questioned, they must be prima facie considered valid for purposes of canvassing the same and proclamation of the winning candidates.

TORRES vs. COMMISSION   ON   ELECTIONS

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Facts: On 9 May 1995 the Municipal Board of Canvassers of Tanza, Cavite, issued a Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal Offices. Two (2) days after or on 11 May 1995 the same Municipal Board of Canvassers requested the COMELEC for correction of the number of votes garnered by petitioner who was earlier proclaimed as the fifth winning candidate for councilor. The Board had erroneously counted the votes belonging to another in the name of Torres. So if correction would be made and the original counting be corrected, Peralta would place 8TH ahead of Torres who will then placed at 10th spot. Upon prior authorization, the Municipal Board of Canvassers issued a corrected Certificate of Canvass of Votes and Proclamation of the Winning Candidates which included private respondent Vicente Rafael A. de Peralta as the eighth winning councilor and excluded petitioner from the new list of winning candidates.

Issue: Whether or not the COMELEC has the power to grant such authority.

Held: In Duremdes v. COMELEC, this Court sustained the power of the COMELEC En Banc to order a correction of the Statement of Votes to make it conform to the election returns in accordance with a procedure similar to the procedure now embodied in Sec. 7, Rule 27, of the COMELEC Rules of Procedure. Since the Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation, any error in the statement ultimately affects the validity of the proclamation.The Statement of Votes is merely a tabulation per precinct of the votes obtained by the candidates as reflected in the election returns. What is involved in the instant case is simple arithmetic. In making the correction in the computation the Municipal Board of Canvassers acted in an administrative capacity under the control and supervision of the COMELEC. Pursuant to its constitutional function to decide questions affecting elections, the COMELEC En Banc has authority to resolve any question pertaining to the proceedings of the Municipal Board of Canvassers.

JOSE C. RAMIREZ vs . COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GIPORLOS, EASTERN SAMAR and ALFREDO I. GO

FACTS: Petitioner Jose C. Ramirez and private respondent Alfredo I. Go  were candidates for vice mayor of Giporlos, Eastern Samar. Petitioner was proclaimed winner by the Municipal Board of Canvassers (MBC) on the basis of results showing that he obtained 1,367 votes against private respondent’s  1,235 votes. On May 16, 1995, private respondent filed in the COMELEC a petition for the correction of what he claimed was manifest error in the Statement of Votes. He alleged that, based on the entries in the Statement of Votes, he obtained 1,515 votes as against petitioner’s 1,367 votes but that because of error in addition, he was credited with 1,235 votes. The COMELEC en banc issued its first questioned resolution, directing the MBC to reconvene and recompute the votes in the Statement of Votes and proclaim the winning candidate for vice mayor. The COMELEC en banc issued its second questioned resolution, reiterating its earlier ruling. It rejected the MBC’s recommendation to resort to election returns. Petitioner contends that (1) the COMELEC acted without jurisdiction because the case was resolved by it without having been first acted upon by any of its divisions, and (2) the MBC had already made motu proprio a correction of manifest errors in the

Statement of Votes in its certification, showing the actual number of votes garnered by the candidates and it was a grave abuse of its discretion for the COMELEC to order a recomputation of votes based on the allegedly uncorrected Statement of Votes.

Issue(1): Whether or not Comelec acted without jurisdiction when it resolved the case without having been first acted upon by any of its division.

Held: No. The 1993 Rules of the Comelec, Rule 27 Section 5 expressly provides that pre-proclamation controversies involving manifest errors in the tabulation or tallying of the results may be filed directly with the Comelec en banc. In cases decided by the Supreme Court, it approved the assumption of jurisdiction by the Comelec en banc over petitions for correction of manifest error directly filed with it.

Issue(2): Whether or not there was already a correction of manifest errors in the Statement of Votes.

Held: No. The corrections should  be made either by inserting corrections in the Statement of Votes which was originally prepared and submitted by the MBC, or by preparing an entirely new Statement of Votes incorporating therein the corrections. The certification issued by the MBC is thus not the proper way to correct manifest errors in the Statement of Votes.  More importantly, the corrections should be based on the election returns but here the corrections appear to have been made by the MBC on the bases of the Certificates of Votes issued.   

Issue(3): Whether or not the order of Comelec directing the MBC to reconvene and recompute the votes in the Statement of Votes is proper.

Held: No. What the Comelec should have ordered the MBC to do was not merely to recompute the number of votes for the parties, but to revise the Statement of Votes, using the election returns for this purpose. The COMELEC has ample power to see to it that the elections are held in clean and orderly manner and it may decide all questions affecting the elections and has original jurisdiction on all matters relating to election returns, including the verification of the number of votes received by opposing candidates in the election returns as compared to the statement of votes in order to insure that the true will of the people is known.

DIMANGADAP DIPATUANvs.

THE COMMISSION ON ELECTIONS, ALEEM HOSAIN AMANODDIN, ALEEM ABBAS MOHAMMAD HABIB, HADJI SALIC IMAM, IBRA P. BALI, MAMENTAL NAGA, CADAR G.

USMAN, MAGAUNDAR AMEROL, ALI MANGANDA, HOSARI ALOYOD, YUNOS MALIK

Facts:Petitioner Dipatuan and private respondent Aleem Hosain Amanoddin were candidates for Mayor of Bacolod Grande in the 1 February 1988 special local elections in Lanao del Sur.On 21 February 1988, the Municipal Board of Canvassers of Bacolod Grande, chaired by Samuel Minalang, finished canvassing the votes but did not proclaim the winning candidates. It did so on 29 February 1988, when private respondent Amanoddin was proclaimed winner and elected Mayor.Earlier, on 25 February 1988, petitioner Dipatuan was proclaimed Mayor by a separate Board of Canvassers headed by one Mamacaog Manggray, after the said Board had excluded the election returns from Precincts Nos. 15, 17 and 21 from its

Election law 21

canvass.The Comelec En Banc set aside both (a) the proclamation made by the Minalang Board for being premature, the candidates not having been given the opportunity to appeal, and (b) the proclamation by the Manggray Board on the ground that the latter Board had not been properly constituted. A Special Board of Canvassers ("Special Board") was therefore convened in Manila by the Comelec to recanvass the election returns from Bacolod Grande, Lanao del Sur.On 21 June 1988, during the recanvass, petitioner objected to the inclusion of the election returns from Precincts Nos. 15 and 17, contending that the returns from the two (2) precincts were spurious and manufactured". In this connection, petitioner seasonable converted his oral objection into written form and submitted certified copies of the voting records and voter's affidavits and affidavits of witnesses. The petitioner claimed that the questioned returns were "obviously manufactured" within the eaning of Section 243 (c) of the Omnibus Election Code and that therefore a pre-proclamation controversy existed which must be resolved before proclamation of the winning candidates Petitioner contended the following irregularities had attended at the Bacolod Grande local elections:

1. In Precinct No. 15. of the 248 persons who actually voted, 187 arrived in the precinct and voted, according to the voting list, precisely in alphabetical and chronological order; of the 187 voters who voted in alphabetical and chronological order, 811 were illiterates as reflected in their respective voter's affidavits,. but had suddenly learned how to write their names in the voting list; many persons whose faces were covered by veils were allowed to vote without their identities being verified.2. In Precinct No. 17, 93 voters are listed as having voted in alphabetical and chronological order, i.e., in the precise sequence of their listing in the voting records: 45 illiterate voters suddenly learned to write their names in the voting records; many persons with their faces covered were allowed to vote without confirmation of their identities.3. In both Precincts Nos. 15 and 17, there were discrepancies between the signatures of voters appearing in the voter's affidavits and the signatures appearing in the voting record; and members of the Boards of Election Inspectors falsified the voting records by making it appear that many or most of the registered voters had voted when in fact they had not.

The Special Board denied petitioner's objections and ordered the inclusion of the questioned returns from Precincts Nos. 15 and 17 in the canvass.On appeal, the Comelec Second Division sustained the Special Board's action, dismissed petitioner's appeal and ordered the Special trial Board to proclaim the winning candidates. On 22 December 1988, the Comelec En Banc affirmed the decision of the Comelec Second Division Land denied petitioner's Motion for Reconsideration.Hence the instant Petition for Certiorari, filed on 23 December 1988, with prayer for a writ of preliminary injunction or temporary restraining order to enjoin proclamation of private respondent Amanoddin as elected Mayor of Bacolod Grande.

Issue:whether or not the questioned returns from Precincts Nos. 15 and 17 in the Municipality of Bacolod Grande, Province of Lanao del Sur, were "obviously manufactured" such that the propriety or legality of their inclusion in the canvass by the Special Board

presented a pre-proclamation controversy to be resolved before proclamation of this winning candidates.

Ruling:Section 243 of the Omnibus Election Code provides, in relevant part:

Sec. 243. Issues that may be raised in pre-proclamation controversy. — The following shall be the proper issues that may be raised in a pre-proclamation controversy:xxx xxx xxx(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and . . . (Emphasis supplied)

In principle, the issues raised by petitioner do constitute issues properly raised in pre-proclamation controversies. That the assailed returns were "obviously manufactured" must, however, be evident from the face of the election returns themselves. In the case at bar, petitioner does not claim that the election returns from Precincts Nos. 15 and 17 had not been made or issued by the Board of Election Inspectors or that they had been manufactured by some unknown third party or parties; petitioner does not, in other words, claim that the returns themselves were not authentic. What petitioner in effect contends is that where election returns, though genuine or authentic in character, are reflective of fraudulent acts done before or carried out by the Board of Election Inspectors, the returns should be deemed as "obviously manufactured."Petitioner's contention does not persuade. In the case at bar, the Comelec Second Division held that the apparent alphabetical and chronological sequence in the voting was not necessarily proof of fraud that would justify the exclusion of the assailed returns. Petitioner's complaints about supposed irregularities involving illiterate voters appear to assume that it is improper or unlawful for a third person — e.g., the assistor who had helped the illiterate to cast his vote 10 — write the name of the assisted illiterate in the voting record. As the Comelec pointed out, however, the proper procedure for indicating that illiterate voters have cast their votes has not been specifically set out in the Omnibus Election Code. We must conclude that petitioner has not shown any grave abuse of discretion or any act without or in excess of jurisdiction on part of the Comelec in rendering the decisions dated 8 November 1988 and 22 December 1988.WHEREFORE, this Petition for certiorari is hereby DISMISSED.

 C. Issues that may be raised in Pre-Proclamation

Controversy [Rule 3, Section 1, COMELEC Resolution No. 8804, March 22, 2010]

a. Illegal composition of the Board of Canvassers (BOC);

b. Illegal proceedings of the BOC.

Section 1. Pre-Proclamation Controversy. - A pre-proclamation controversy refers to the proceedings of the board of canvassers which may be raised by any candidates or by any registered political party or coalition of political parties, or by any accredited and participating party list group, before the board or directly with the Commission. It covers only two issues:

a. Illegal composition of the Board of Canvassers (BOC);

b. Illegal proceedings of the BOC.

The basis of the canvass shall be electronically transmitted results.

Election law 22

XII.   ELECTION CONTESTS  A. Definition and Nature of Election ContestB. Jurisdiction; Time to file Electoral Protest 

1. Presidential Electoral Tribunal (Article VIII, Section 4 in rel. Section 4 (par. 7), Article VII, 1987 Constitution)Section 4. The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the

presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

2. Senate/HR Electoral Tribunal (Article VI, Section 17, 1987 Constitution)Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

3. COMELEC Jurisdiction, Election Protest [Part III, COMELEC Resolution No. 8804, March 22, 2010 ]

PART IIIELECTION PROTEST

Rule 6Election Protest

Section 1. Jurisdiction of the Commission on Elections. - The Commission on Elections, through any of its Divisions, shall have exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial, and city officials.

Section 2. Election protest. - A petition contesting the elections or returns of an elective regional, provincial, or city official shall be filed with the Commission by any candidate who was voted for in the same office and who received the second of third highest number of votes or, in a multi-slot position, was among the next four candidates following the last ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes. The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee.

Election law 23

Section 3. How Initiated. - An election protest or petition for quo warranto shall be filed directly with the Commission in ten (10) legible copies plus such number of copies corresponding to the number of protestees, within a non-extendible period of ten days following the date of proclamation.

Each contest shall refer exclusively to one office but contents for offices of the Sangguniang Pampook, Sangguniang Panlalawigan or Sangguniang Panglungsod may be consolidated in one case.

Section 4. Modes of service and filing. - Service and filing of pleadings, including the initiatory petition and other papers, shall be done personally. Except with respect to papers emanating from the Commission, a resort to other modes of service must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule shall be a cause to consider the pleading or paper as not filed.

Section 5. Petition must be verified and accompanied by a certificate of non-forum shopping. - An election protest shall be verified by an affidavit stating that the affiant has read the petition and that the allegations therein are true and correct of affiant's own knowledge or based on authentic records. A verification based on "information and belief" or upon the "knowledge, information and belief" is not a sufficient verification.

The protestant shall personally sign the certificate of non-forum shopping which must be annexed to the election protest. An unverified petition or one with insufficient verification or unaccompanied by a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the reglementary period to file an election protest.

Section 6. Pendency of pre-proclamation controversy. - The pendency of a pre-proclamation controversy involving the validity of the proclamation as defined by law shall suspend the running of the period to file an election protest.

Section 7. Contests of the protest or petition. - An election protest or petition for quo warranto shall specifically state the following facts:

a) The position involved

b) That the protestant was a candidate who has duly filed a certificate of candidacy and has been voted for the same office.

c) The date of proclamation; and

d) The number of votes credited to the parties per proclamation.

An election protest shall also state:

e) The total number of precincts of the region, province or city concerned;

f) The protested precincts and votes of the parties in the protested precincts per the Statement of Votes By Precinct or, if the votes of the parties are not specified an explanation why the votes are not specified;

g) A detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.

Section 8. Docketing and Raffle of Protest. - The Director of the Election Contest and

Adjudication Department (ECAD) shall immediately docket the Protest and raffle the case to either the First or Second Division of the Commission.

Section 9. Summary dismissal of election contest. - The Commission shall summarily dismiss, motu proprio, an election protest and counter-protest on the following grounds:

a) The Commission has no jurisdiction over the subject matter;

b) The protest is insufficient in form and content as required in Section 7 hereof;

c) The petition is filed beyond the period prescribed in these rules;

d) The filing fee is not paid within the period for the filing the election protest or petition for quo warranto; and

e) In case of protest where a cash deposit is required, the cash deposit is not paid within fifteen (15) days from the filing of the protest.

Rule 7Summons

Section 1. Summons. - Within three (3) days from the filing of the protests, the Clerk of the Commission or the Division concerned shall issue the corresponding summons to the protestee or respondent, together with a copy of the protest, requiring the filing of an answer within a non-extendible period of five days from notice.

Section 2. Service of summons. - The summons shall be served immediately upon its issuance by handling a copy to the protestee or respondent in person or, in case of refusal of the protestee or respondent to receive and sign for it, by tendering the same. If, for justifiable causes, the protestee or respondent cannot be served in person as provided above, service may be effected by leaving copies of the summons at:

Election law 24

a) The residence of protestee or respondent, as stated in the certificate of candidacy he filed, with some person of suitable age and discretion residing therein, or

b) The office or regular place of business of protestee or respondent with some competent person in charge thereof.

Section 3. By whom served. - The summons shall be served by a bailiff of the

Commission or Division or upon request of the Commission or Division, by the Sheriff of any Court in the place where the parties to be served reside or for special reasons, by a person especially authorized by the Commission or Division.

Section 4. Return. - When the service has been completed by personal service, the server shall give notice thereof, by registered mail, to the protestant or his counsel and shall return the summons to the Clerk of the Commission who issued it, accompanied with the proof of service.

Section 5. Proof of Service. - Proof of service of summons shall be made in the manner provided for in the Revised Rules of Court of the Philippines.

Rule 8Answer and Counter-Protest

Section 1. Verified answer; counter-protest. - Within five days from receipt of he summons and a copy of the protest the protestee shall file an answer in ten (10) legible copies, with proof of service of a copy upon the protestant. The answer shall be verified and may set forth admissions and denials, special and affirmative defenses and a compulsory counterclaim. The protestee may incorporate a counter-protest in the answer.

The counter-protest shall specify the counter-protested precincts and any votes of the parties therein per the Statement of Votes, or if not so specified, an explanation why the votes are not specified, and a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the counter-protested precincts.

Section 2. Answer to counterclaim or counter-protest. - The protestant shall answer the counterclaim or counter-protest within a non-extendible period of five days from notice.

Section 3. Allegations in the answer. -

(a) Specific denial. - A protestee must specify each material allegation of fact the truth of which is not admitted and, whenever practicable, shall set forth the substance of the matters relied upon in support of the denial. The protestee shall specify so much of the averments

that are true and material and shall deny the remainder.

(b) Allegations not specifically denied deemed admitted. - Material averment in the protest other than the amount of unliquidated damages and issues as to the recount or appreciation of ballots, shall be deemed admitted when not specifically denied.

Section 4. Effect of failure to plead. -

a) Defenses and objections not pleaded. - Defenses and objections not pleaded are deemed waived. However, when it appears from the pleadings or the evidence on record that the Commission has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment, or the statute of limitations, the Commission shall dismiss the claim.

b) Compulsory counterclaim or cross-claim not set-up barred. - A compulsory counterclaim, or a cross-claim not set up shall be barred.

c) Effect of failure to answer. - In an election protest that does not involve ballot recount, if the protestee fails to file an answer within the time allowed, the Commission shall, upon motion of the protestant with notice to the protestee, and upon proof of such failure, require the protestant to submit evidence ex parte.

d) However, in the case of election protests involving ballot recount or examination, or verification or re-tabulation of the election returns, the Commission shall order such recount of ballots or re-tabulation of election returns. The Commission shall proceed to render judgment based on the results of the recount or re-tabulation of election returns. During the recount or re-tabulation of election returns, only the protestant, or his representative may participate. The protestee or his duly authorized representative has the right to be present and observe the proceedings without the right to register his comment on the ballots and election returns.

Section 5. How to compute time. - In computing any period of time prescribed or allowed by these Rules, or by order of the Commission, or bay any applicable statute, the day of the act or the event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or legal holiday on the place where the Commission sits, the time shall not run until the next working day.

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Section 6. Amendments; limitations. - After the expiration of the period for the filing of the election protest or counter-protest, substantial amendments that broaden the scope of the action, or introduce an additional cause or causes of action may be allowed only upon leave of the Commission. Such leave may be refused if it appears that the motion was made with intent to delay. Any amendment in matters of form, such as a defect in the designation of the parties and other clearly clerical or typographical errors, may be summarily corrected by the Commission at any stage of the proceedings, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.

Rule 9Motions

Section 1. Motions must be in writing. - Except those made in open session during the course of the proceedings, all motions shall be in writing.

A motion shall state the order sought to be obtained and the grounds upon which it is based.

Section 2. Proof of service necessary. - No written motion shall be acted upon by the Commission without proof of service on the adverse party.

Section 3. No hearings on motions. - Motions shall not be set for hearing unless the Commission directs otherwise. Oral argument in support thereof shall be allowed only upon the discretion of the Commission. The adverse party may file opposition five days from receipt of the motion, upon the expiration of which such motion is deemed submitted for resolution. The Commission shall resolve the motion within five days.

Rule 10Prohibited Pleadings

Section 1. Prohibited pleadings and motions. - The following pleadings, motions or petitions shall not be allowed:

a) Motion to dismiss except on the ground of lack of jurisdiction over the subject matter;

b) Motion for a bill of particulars;

c) Demurrer to evidence;

d) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;

e) Petition for relief from judgment;

f) Motion for extension of time to file pleadings, affidavits or other papers;

g) Memoranda, except when required by

the Commission in an Order;

h) Motion to declare the protestee or respondent in default;

i) Dilatory motion for postponement;

j) Motion to inhibit the Commissioner/s except on clearly valid grounds;

k) Reply or rejoinder; and

l) Third-party complaint.

Section 2. Grounds to dismiss must be set up in the answer. - All grounds to dismiss an election protest must be set-up or pleaded as affirmative or special defenses. Defenses not raised are deemed waived. The Commission may, in its discretion, hold a preliminary hearing on the grounds so pleaded.

Rule 11Filing fees and cash deposits

Section 1. Filing fees. - No protest, counter-protest shall be accepted for filing without the payment of a filing fee in the amount of Ten Thousand Pesos (P10,000.00) for each interest.

If claims for damages and attorney's fees are set forth in a protest or counter-protest, additional filing fees shall be paid in accordance with the schedule provided for in Rule 141 of the Rules of Court, as amended.

Section 2. Cash Deposit. - (a) In addition to the fees prescribed in the preceding section, the protestant on an election protest requiring recount of ballots or re-tabulation of election returns, or which may require the bringing to the Commission of copies of other election documents, printed or electronic, as well as the machines or devices to which electronic election documents are stored or may be processed, shall make a cash deposit with the Commission in the following amounts:

1. One Thousand Five Hundred Pesos (P1,500.00) for each precinct involved in the protest or counter-protest; provided that, in no case shall the deposit be less than Twenty-Five Thousand Pesos (P25,000.00) to be paid upon the filing of the election protest (counter-protest);

2. If the amount to be deposited does not exceed One Hundred Thousand Pesos (P100,000.00), the same shall be paid in full within ten days after the filing of the protest; and

3. If the deposit exceeds One

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Hundred Thousand Pesos (P100,000.00), a cash deposit in the amount of One Hundred Thousand Pesos (P100,000.00) shall be made within ten days after the filing of the protest.

The balance shall be paid in such installments as may be required by the Commission with at least five days advance notice to the party required to make the deposit.

The cash deposit shall be applied by the Commission to the payment of compensation of Recount Committees as provided under Section 3, Rule 17 of these Rules and of all expenses incidental to the recount but not limited to supplies and miscellaneous expenses of the recount committee. When the Commission determines that the circumstances so demand, as when the deposit has been depleted, it may require additional cash deposits. Any unused cash deposit shall be returned to the party making the same after complete termination of the protest or counter-protest.

The same amount of cash deposit shall be required from the protestee (counter-protestant), should continuation of recount be ordered. Once required, the protestee (counter-protestant) shall pay the cash deposit within a non-extendible period of three days from receipt of the corresponding order.

(b) Failure to make the cash deposits required within the prescribed time limit shall result in the automatic dismissal of the protest, or counter-protest.

(c) The Division Clerk of the Commission or Overall Chairman of the Recount Committee shall liquidate any cash advance granted to him/her for the purchase of supplies within a non-extendible period of thirty (30) days from date of termination of the recount.

Rule 12Production and Custody of Ballot Boxes,

Election Documents,Data Storage Devices, and Machines Used

in the Elections

Section 1. Issuance of precautionary protection order. - Where the allegations in a protest so warrant, and simultaneously with the issuance of summons, the Commission shall order the municipal treasurer and election officer, and the responsible personnel and custodian to take immediate steps or measures to safeguard the integrity of all the ballot boxes, lists of voters with voting records, books of voters and other documents or paraphernalia used in the election, as well as data storage devices containing electronic data evidencing the conduct and the results of elections in the contested precincts.

Section 2. When ballot boxes and election documents are brought before the Commission. - Within forty-eight hours from receipt of the answer with counter- protest, if any, and whenever the allegations in a protest or counter-protest so warrant and when it finds the same necessary, the Commission shall order the boxes with their keys, lists of voters with voting records, books of voters, the electronic data storage devices, and other documents, paraphernalia, or equipments relative to the precincts involved in the protest or counter-protest, to be brought before it.

The Commission shall notify the parties of the date and time for the retrieval from their respective custodians of the ballot boxes, other election documents, data storage devices, equipments. The parties may send representatives to witness the activity. The absence, however, of a representative of a party shall not be reason to postpone or delay the bringing of the ballot boxes, election documents, and data storage devices, into the custody of the Commission.

The Commission, in its discretion, may seek the assistance of the Philippine National Police or the Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and election paraphernalia into the custody of the Commission.

Where any of the ballot boxes, ballots, election returns, election documents or paraphernalia mentioned in the first paragraph above are also involved in election contests before other fora, such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of Representatives Electoral Tribunal, which, under COMELEC Resolution No. 2812 dated 17 October 1995, have preferential right over the custody and recount of ballots involved in simultaneous protests, the Commission shall make the appropriate coordination and request with the tribunal involved as to temporary prior custody of ballot boxes and recount of ballots and other documents and storage devices, or the synchronization of such recount of ballots. The expenses necessary and incidental to the bringing of the ballot boxes, election documents, and devices shall be shouldered and promptly paid by the protestant and the counter-protestant, if any, in proportion to the precincts involved. The expenses necessary and incidental to the return of the ballot boxes, election documents, and storage devices to their original custodians or the proper tribunal after the termination of the case shall be shared proportionately by the protestant and protestee based on the number of precincts respectively contested by them.

Rule 13Preliminary Conference

Section 1. Preliminary conference; mandatory. - Within three days after the filing of the last responsive pleading allowed by these rules, or expiration of the same period without any responsive pleading having been filed, the Commission shall conduct a mandatory

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preliminary conference among the parties to consider:

a) The simplification of issues;

b) The necessity or desirability of amendments to the pleadings;

c) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof;

d) The limitation of the number of witnesses;

e) The nature of the testimonies of the witnesses and whether they relate to evidence aliunde, the ballots or otherwise;

f) The withdrawal of certain protested or counter-protested precincts (especially those where the ballot boxes or ballots are unavailable or are missing and cannot be located or destroyed due to natural disasters or calamities);

g) The number of recount committees to be constituted;

h) The procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination, verification or re-tabulation of election returns; and

i) Such other matters as may aid in the prompt disposition of the case.

Section 2. Notice through counsel. - The notice of preliminary conference shall be served on the counsel or on the party who has no counsel. Notice to counsel is notice to the party, as counsel is charged with the duty to notify the party represented.

Section 3. Appearances of parties. - It shall be the duty of the parties and counsel to appear before the Commission in person at the preliminary conference.

Section 4. Preliminary conference brief. - The parties shall file with the Commission and serve on the adverse party, in such manner as shall ensure their receipt at least one day before the date of the preliminary conference, their respective briefs which shall contain the following:

a) A summary of admitted facts and proposed stipulation of facts;

b) The issues to be tried or resolved;

c) The pre-marked documents or exhibits to be presented, stating their purpose;

d) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners;

e) The number and names of the witnesses, their addresses, and the substance of their respective testimonies. The testimonies of the witnesses shall be by affidavits in question and answer form as their direct testimonies, subject to oral cross examination;

f) A manifestation of withdrawal of certain protested or counter-protested precincts, if such is the case;

g) The proposed number of recount committees and names of their representative, and their alternates; and

h) In case the election protest or counter-protest seeks the examination, verification or re-tabulation of election returns, the procedure to be followed.

Section 5. Failure to file brief. - Failure to file the brief or to comply with its required contents shall have the same effect as failure to appear at the preliminary conference.

Section 6. Effect of failure to appear. - The failure of the protestant or counsel to appear at the preliminary conference shall be cause for dismissal, moto proprio, of the protest or counter-protest. The failure of the protestee or counsel to appear at the preliminary conference gives the Commission the discretion to allow the protestant to present evidence ex parte and render judgment based on the evidence presented.1avvphi1

Section 7. Preliminary conference order. - Within three days following the date of the preliminary conference, the Commission shall issue an order summarizing the matters taken up and stipulations or agreements reached during the conference. The Commission shall specify in the preliminary conference order when the recount of ballots will commence, which shall be within five days from the termination of the preliminary conference.

Rule 14Subpoena

Section 1. Subpoena Ad Testificandum or Subpoena Duces Tecum. - Subpoena ad testificandum or subpoena duces tecum may be issued by the Division motu proprio, or upon request of the parties in any case.

Section 2. Form and Contents. - A subpoena shall be signed by the Clerk of the Commission concerned. It shall state the name of the Division issuing it and the title of the action; it shall be directed to the person whose attendance is required, and in the case of a subpoena duces

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tecum, it shall also contain a reasonable description of the books, documents or things demanded which may appear prima facie relevant.

Rule 15Recount of Ballots

Section 1. Start of recount. - The recount of ballots shall commence on the date specified in the preliminary conference order, unless rescheduled by Order of the Division.

Section 2. Recount committee; under the supervision of the Commission. - There shall be constituted such number of recount committees as may be necessary. The list of the recount committees shall be submitted by the Division Clerk of the Commission, through the Director IV, Electoral Contests Adjudication Department, to the Presiding Commissioner of either the First or Second Division. Each recount committee shall be composed of a Recount Coordinator/Chairman who shall be a lawyer of the Commission, recorder, clerk, typist and ballot box custodian and one representative each from the protestant and the protestee. The Commission shall designate the Recount Coordinators/ Chairman from among its personnel. The parties shall also designate their respective alternative representatives.

The recount committee shall conduct the recount in the Commission's premises or at such other places as may be designated by the Commission, but in every case under its strict supervision. The members of the Recount Committee shall discharge their duties with the highest degree of integrity, conducting the proceedings with the same dignity and discipline as if undertaken by the Commission itself. They shall exercise extraordinary diligence and take precautionary measures to prevent the loss, disappearance or impairment of the integrity of the ballots and the other election documents, whether electronic or printed, and other election paraphernalia.

Section 3. Compensation of the members of the

Recount Committee. - The Commission shall fix the compensation of the members of the Committee including the fees for supplies and materials at One Thousand Five Hundred Pesos (1,500) per clustered precinct and shall be distributed as follows:

a. Chairman P520.00

b. Recorder P240.00

c. Ballot Box Custodian P240.00

d. Typist P240.00

e. Supplies/materials P184.00

The amount of P6.00 shall also be allocated for storage of the election paraphernalia and P50.00 for the honoraria of the warehouse handlers. The Representatives of the parties shall be directly compensated by their respective principals or by

parties themselves.

Section 4. Continuous Recount. - Once commenced, the recount shall continue from day to day as far as practicable until terminated.

a) Period for Recount. - recount shall be conducted from 8:30 o'clock in the morning to 12:00 noon and from 1:30 to 4:30 o'clock in the afternoon from Monday to Friday, except on non-working holidays. The members of the Recount Committee may take a fifteen-minute break in each session.

b) Recount to continue even if a party representative is absent or late. - The recount of ballots shall not be delayed or postponed by reason of the absence or tardiness of a party representative as long as the Recount Coordinator and one party representative are present. The Commission may at any time designate another Recount Coordinator if the regular Recount Coordinator fails for any reason to report.

c) If the representative of the protestee is absent or late. - If the representative of the protestee is absent or late for thirty minutes and no alternate appears as a substitute, the recount shall, nevertheless, commence; the protestee shall be deemed to have waived the right to appear and to object to the ballots in the precinct or precincts scheduled for recount on that particular day.

d) If the representative of protestant or counter-protestant, or of both parties fail to appear. - If the representative of the protestant, or of both parties and alternates fail to appear for no justifiable reason within one hour after fixed hours from the start of the recount, the ballot boxes scheduled for that day, and the corresponding keys in the possession of the chairperson, shall be returned to the ballot box custodian of the Commission and shall no longer be recounted; it is understood that the parties waive their right to recount the same, and the Recount Coordinator concerned shall state such facts in the corresponding Recount report.

Section 5. Prohibited access. - During the recount of ballots, no person other than the Commission, the clerk of the Commission, the Recount Coordinators and the members of the recount committees, the parties and their duly authorized representatives, shall have access to the recount area.

Section 6. Conduct of the Recount. - The recount of the votes on the ballots shall be done manually and visually and according to the procedures hereunder:

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a) At the preliminary conference the date and the place of the recount and the number of the recount committees shall be set.

b) At the appointed place and day, the recount committee/s shall convene.

c) At the same place and day, the ballot boxes containing the ballots from the protested precincts, the data storage device used in said precincts, as well as the machine or any device that can be used to authenticate or assure the genuineness of the ballots shall be brought to the venue of the recount.

d) The different recount committees will be provided with an adequate workspace, with tables and chairs that would enable them to perform the recount in an efficient and transparent manner.

e) The recount committee, upon the request in writing of parties, will then randomly pick the precinct from which they would do the recount.

f) Before opening the ballot box, the recount committee shall note its condition as well as that of the locks or locking mechanism and record the condition in the recount report. From its observation, the recount committee must also make a determination as to whether the integrity of the ballot box has been preserved.

g) The ballot box shall then be opened and the ballots shall be taken out. The "valid" ballots shall first be counted, without regard to the votes obtain by the parties. This will be followed by the counting of the torn, unused and stray ballots, as classified at the poling place.

h) The Votes appearing in election return copy for the ballot box shall then be recorded in the minutes.

i) Prior to the actual conduct of the recount of the votes the recount committee must authenticate each and every ballot to make sure that they were the same ballots that were cast and fed to the PCOS machine during the elections. The authentication shall be through the use of the PCOS machine actually used during the elections in the subject precinct, or by another device certified by the Commission as one that can perform the desired authentication requirement through the use of bar code and ultra-violet ray code detection mechanism.

j) Only when the recount committee, through the recount coordinator, determines that the integrity of the

ballots has been preserved, will the recount proceed.

k) Upon such determination, the recount committee shall then look at the ballot and count the votes as registered in each and every one of them for the contested position.

l) In looking at the shades or marks used to register votes, the recount committee shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been ,made by the voter and shall be considered as such unless reasons exist that will justify their rejection. However, marks or shades which are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination.

m) The rules on appreciation of ballots under Section 211 of the Omnibus Election Code shall apply suppletorily when appropriate.

n) There shall be a tally sheet, of at least 5 copies, plus additional copies depending on the number of additional parties, that will be used for the tallying of the votes as they are counted, through the use of the tara or sticks.

o) After all the ballots from one ballot box have been counted, the recount committee shall secure the contested ballots and complete the recount report for said precinct. Thereafter, it shall proceed to recount the votes on the ballots from the next precinct.

p) In case of multiple recount committees, the recount shall be done simultaneously.

q) In the event that the recount committee determine that the integrity of the ballots and the ballot box were not preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The commission shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the recount.

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Section 7. Preparation and submission of recount report. - The committee shall prepare and submit to the Commission a recount report per precinct stating the following:

a) The precinct number;

b) The date, place and time of recount;

c) The condition and serial numbers of the following;

c.1) Ballot boxes;

c.2) Looks;

c.3) Data storage device.

d) The votes of the parties per physical count of the paper ballots;

e) The votes of the parties per ballot-box copy of the election returns;

f) The number of ballots questioned by the parties indicating there-in the exhibit numbers;

g) The number of torn, unused and stray ballots;

h) The entries in the minute of Voting and counting, particularly;

h.1) The number of registered voters;

h.2) The number of voters who actually voted;

h.3) The number of official ballots together with their serial numbers used in the election;

h.4) The number of ballots actually used indicating the serial numbers of the ballots; and

h.5) The unused ballots together with their serial numbers.

The recount forms shall be made available prior to the recount. The per-precinct recount report shall be signed and certified to by the recount coordinator and the representatives of the parties, and shall form part of the records of the case. The tally sheet used for the recount shall be attached to the report.

In addition to the per-precinct recount report; the recount committee shall also prepare and submit to the court, within seven (7) days from the termination of the recount, a committee report

summarizing the data, votes, questions on the ballots, significant observations made in the recount of ballots from each of the protested precincts and, later from the counter-protested precincts, and comments and objections in case of disagreement between committee members. Each party furnished with a copy of the committee report may submit their comments thereon within a non-extendible period of seven days from notice.

Section 8. Inquiry as to security markings and vital information relative to ballots and election documents. - When a recount of ballots is ordered, and for the guidance of the members of the Recount Committees, the Commission shall give advise and instructions to the committee on the security markings on the ballots and election document. The commission shall likewise designate a technical person who shall assist the Recount Committee in authenticating electronic documents if needed, as well as in transforming the same to a form that can make them observable to the Committee.

Rule 17Photocopying of Ballots

Section 1. Presentation and reception of evidence; order of hearing. - On motion of a party, the Commission may allow the photocopying or reproduction of paper ballots and election documents. Upon such terms and conditions as it may impose. The photocopying or reproduction, if allowed, must start at the commencement of recount and, as far as practicable, must be completed simultaneously with the termination of recount.

Section 2. Where conducted; parties to provide own photocopying units. - Photocopying shall be done within the premises of the COMELEC, or at or near the are where the recount is conducted, and shall be under the supervision of the Clerk of the Commission. The party concerned shall provide an efficient photocopying unit and shall bear all experience relative thereto.

Rule 18Presentation of Evidence

Section 1. Presentation and reception of evidence; order of hearing. - The reception of evidence on all matters or issues raised in the protect and counter-protests shall be presented and offered in a hearing upon completion of (a) the recount of ballots, or re-tabulation of election documents, or (b) the technical examination, if warranted.

Reception of evidence shall be made in accordance with the following order of hearing:

a) The Protestant shall present evidence in support of the protest;

b) The protestee shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any;

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c) The parties may then respectively offer rebutting evidence only, unless the Commission for good reasons, in the furtherance of justice, permits them to offer evidence upon their original case; and

d) No sur-rebuttal evidence shall be allowed.

In offering testimonial evidence, the party shall require the proposed witness to execute an affidavit which shall be considered as the direct testimony, subject to the right of the adverse party to object to its inadmissible portions and to orally cross-examine the witness. The affidavit shall be based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the matters stated therein. The affidavit shall be in question and answer form. The affidavit shall be submitted to the Commission and served on the adverse party at least three days before the hearing. Failure to submit the affidavit of a witness within the specified time shall constitute a waiver of the party's right to present testimonial evidence.

The one-day-cross-examinations-of-witness rule, that is, a witness has to be fully cross-examined in one day only shall be strictly adhered to. The Commission, at its discretion, may extend the cross-examination for justifiable reasons.

The recount reports, as well as the objected and claimed ballots referred to therein, shall automatically form part of records of the Commission and may be adopted by the parties as their evidence.

Section 2. Offer of evidence. - The Commission shall consider no evidence that has not been formally offered. Formal offer of documentary evidence shall be done in writing after the last day of hearing allowed for each party. The opposing party shall be required to immediately interpose his written objections thereto within five (5) from receipt of formal offer. The Commission shall rule on the offer of evidence not later than five (5) days from receipt of the Comment to the formal offer.

Section 3. Reception of evidence continuous. - Reception of evidence, once commenced, shall continue from day to day as far as practicable until terminated.

Section 4. Adjournments and postponements. - No motion for postponement shall be allowed, except for clearly meritorious reasons, in no case to exceed three times. The filing of dilatory pleadings or motions shall constitute direct attempt of Commission and shall be punished accordingly.

Section 5. Burden of proof. - Burden of proof is the duty of a party to present evidence of the facts in issue, necessary to establish one's claim or defense.

Section 6. Disputable presumptions. - The following presumptions are considered as facts, unless contradicted and overcome by other evidence;

a) On the election procedure:

a.1) The election of candidates was held on the date and time set and in the polling place determined by the Commission on Elections;

a.2) The Boards of Election Inspectors were duly constituted and organized;

a.3) Political parties and candidates were duly represented by poll watchers;

a.4) Poll watchers were able to perform their function; and

a.5) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors.

b) On election paraphernalia:

b.1) Ballots and election returns that bear the security marketing's and features prescribed by the Commission on Election are genuine;

b.2) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and

b.3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done.

c) on appreciation of ballots:

c.1) A ballot with appropriate security markings is valid;

c.2) The ballot reflects the intent of the voter;

c.3) The ballot is properly accomplished;

c.4) A voter personality prepared one ballot, except in the case of assistors; and

c.5) The exercise of one's right to vote was voluntary and free.

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Section 7. Submission of memoranda. - The Commission may allow the parties to submit their respective memoranda within a non-extendible period of ten days from receipt of the written ruling of the Commission. No supplemental, reply or rebuttal memorandum shall be allowed.

Rule 19Decisions

Section 1. Rendition of Decision. - The Commission shall decide the election contest within thirty days from the date it is submitted for decision.

Section 2. Procedure in making Decisions. - The conclusions of the Commission in any case submitted to it for decision shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion. A certification to this effect signed by the Chairman or Presiding Commissioner shall be incorporated in the decision. Any member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor.

Every decision shall express therein clearly and distinctly the facts and the law on which it is based. In its decision the Commission shall be guided by the principle that every ballot is presumed to be valid unless there is clear and good reason to justify its rejection and that the object of the election is to obtain the true expression of the voters.

Section 3. Several Judgments. - In a protest against several protestees, the Commission may, when a several judgment is proper, render judgment against one or more of them, leaving the protest to proceed against the others.

Section 4. When extended Opinion Reserved. - When in a given resolution or decision the writing of an extended opinion is reserved, the extended opinion shall be released within fifteen (15) days after the promulgation of the resolution.

Section 5. Period to File Motion for Reconsideration When Extended Opinion is Reserved. - If an extended opinion is reserved in a decision, the period to file a petition for certiorari with the Supreme Court or to file a motion for reconsideration shall begin to run only from the date the aggrieved party received a copy of the extended opinion.

Section 6. Promulgation. - The promulgation of a decision of the Commission shall be on a date previously fixed, of which notice shall be served in advance upon the parties or their counsels personality, or by registered mail, or by telegram, or any verifiable speedy means.

Section 7. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reached, and if on rehearing no decision is reached, the protest or the counter-protest shall be deemed dismissed if originally commenced in

the Commission; in a appealed cases, judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied.

Section 8. Duty to certify to the President. - In election protests, if the decision shall be that none of the parties has been legally elected, the Commission shall certify such decision to the President of the Philippines.

Section 9. Duty to Notify Other Agencies of the Government. - As soon as a decision in an election protest becomes final and executory, notices thereof shall be sent to the President, the Secretary of Local Government, the Chairman of the Commission on Audit, and the Secretary of the Sangguniang Pampook in the case of regional officials, the Secretary of the Sangguniang Panlalawigan in the case of provincial officials, and the Secretary of the Sangguniang Panglungsod in the case of city officials.

Section 10. Finality of Decisions or Resolutions. - Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days following its promulgation.

Rule 20Motion for Reconsideration

Section 1. Grounds of Motion for Reconsideration. - A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling; or that the said decision, is contrary to law.

Section 2. Period for Filing Motion for Reconsideration. - A motion to reconsider a decision shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation, of the decision, resolution, order or ruling.

Section 3. Form and Contents of Motion for Reconsideration. - The motion shall be verified and shall point out specifically the findings or conclusions of the decision, resolution, order or ruling which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings or conclusions.

Section 4. Effect of Motion for Reconsideration on Period to File Petition for Certiorari to the Supreme Court. - A motion to reconsider a decision, resolution, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court.

Section 5. How motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the ECAD Clerk concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify

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the case to the Commission en banc.

Section 6. Duty of ECAD Director to Calendar Motion for Resolution. - The EACD Director concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten days from the certification thereof.

Section 7. Period to Decide by the Commission En Banc. - The motion for reconsideration shall be decided within fifteen (15) days from the date the case or matter is deemed submitted for decision, unless otherwise provided by law.

Section 8. Finality of Decision . - The decision of the Commission shall become final and executory five days after its promulgation and receipt of notice by the parties.Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

 C. Election Protest and Quo Warranto  Cases:

Santiago v. Ramos (253 SCRA 599) Gatchalian v. COMELEC (245 SCRA 208) Loyola v. CA (245 SCRA 477) De Castro v. COMELEC (267 SCRA 806) Sampayan v. Dizon (213 SCRA 807) Marquez v. COMELEC (243 SCRA 538)

CASES:DEFENSOR-SANTIAGO V. RAMOS

FACTS:This is an original action filed before the SC acting as a Presidential Electoral Tribunal.

SC (P.E.T) discussed the purpose of an election protest3. The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. What is sought in an election protest is the correction of the canvass of the votes, which is the basis of the proclamation of the winning candidate. An election contest involves a public office in which the public has an interest. Certainly, the act of a losing candidate of recognizing the one who is proclaimed the winner should not bar the losing candidate from questioning the validity of the election of the winner in the manner provided by law.

Miriam Defensor-Santiago (DS) ran for presidency in the 1992 National Elections. She lost, but filed this protest against the winner, Pres. FV Ramos.

3 De Castro v. Ginete

Subsequently however, she ran for Senator in the 1995 Senatorial elections. She won and assumed office as Senator in 1995. Considering this factual milieu, the issues revolve on whether this present electoral protest would still be valid, even after the protestant has already assumed office as Senator, noting that should she win this protest, her term as president would coincide with her term as senator, which she is now in. Now, in 1996, the SC as PET decides the case.

HELD:There was abandonment of protest.

Yes. DS filed her certificate of candidacy to run for senator without qualification or reservation. In doing so, she entered into a political contract with the electorate, that, if elected, she would assume the office as senator. This is in accord with the constitutional doctrine that a public office is a public trust. In assuming the office of Senator, she has effectively abandoned her determination to pursue this present protest. Such abandonment operates to render this protest moot. SC cannot subscribe to the view of the Protestee that by filing her certificate of candidacy for Senator Protestant Santiago ipso facto forfeited her claim to the office of President pursuant to Section 67 of B.P. Blg. 881. Plainly, the said section applies exclusively to an incumbent elective official who files a certificate of candidacy for any office "other than the one he is holding in a permanent capacity." Even more plain is that the Protestant was not the incumbent President at the time she filed her certificate of candidacy for Senator nor at any time before that. 

Also, the PET issued a resolution ordering the protestant to inform the PET within 10 days if after the completion of the revision of the ballots from her pilot areas, she still wishes to present evidence. Since DS has not informed the Tribunal of any such intention, such is a manifest indication that she no longer intends to do so.

GATCHALIAN V. COURT OF APPEALS

Facts:Danilo F. Gatchalian and Gregorio N. Aruelo, Jr. were rival candidates for the office of the Vice Mayor of Balagtas, Bulacan in the May 11, 1992 elections.On May 13, 1992, the Municipal Board of Canvassers proclaimed Gatchalian as the duly elected Vice Mayor of Balagtas, Bulacan by a margin of four votes.On May 22, 1992, Aruelo filed with the Commission on Elections (COMELEC) a verified petition seeking to annul the proclamation of Gatchalian.On June 2, 1992, Aruelo filed with the Regional Trial Court an election protest alleging that the protest was filed ex abudante cautela, there being a pending pre-proclamation case before the COMELEC. On the same date, Aruelo paid the amount of P610.00 as filing fees.On June 10, 1992, Gatchalian was given five days within which to answer, but instead, Gatchalian filed a motion to dismiss on June 15, 1992 on the following grounds: (a) the petition was filed out of time; (b) there was a pending pre-proclamation case before the COMELEC, and hence the protest was premature; and (c) Aruelo failed to pay the prescribed filing fees and cash deposit upon filing of the petition. Aruelo filed an opposition to the motion to dismiss, to which Gatchalian filed a reply.Meanwhile, on June 17, 1992, the COMELEC denied Aruelo's pre-proclamation case.In its Order dated July 10, 1992, the trial court denied Gatchalian's motion to dismiss and ordered him to file his answer within five days from notice thereof. Gatchalian's motion for reconsideration was denied on August 5, 1992.

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On August 6, 1992, Gatchalian filed before the Court of Appeals, a petition for certiorari (CA -G.R. SP No. 28621) alleging grave abuse of discretion. Court of Appeals ruled that there was no grave abuse of discretion on the part of the trial court in denying Gatchalian's motion to dismiss. It further ruled that the election protest was timely filed and that Gatchalian's averment that the election protest should be dismissed on the ground of non-payment of filing fee was devoid of merit.

Issues:Whether or not the election protest was filed on time.

Section 3, Rule 35 provides as follows:

"Period to file petition. - The petition shall be filed within ten (10) days following the date of proclamation of the results of the election."

Under the above-cited section, Aruelo had ten days from May 13, 1992 to file an election protest. Instead of filing an election protest, Aruelo filed with the COMELEC a pre-proclamation case against Gatchalian on May 22, 1992, or nine days after May 13, 1992. The filing of the pre-proclamation case suspended the running of the period within which to file an election protest or quo warranto proceedings (B.P. Blg. 881, Sec. 248). Aruelo received the COMELEC resolution denying his pre-proclamation petition on June 22, 1992. Hence, Aruelo had only one day left after June 22, 1992 within which to file an election protest. However, it will be noted that Aruelo filed on June 2, 1992 with the trial court an election protest ex abudante cautela.

Whether or not the court has jurisdiction over the case.

Section 9, Rule 35 of the COMELEC Rules of Procedure provides that a protestant has to pay the following: a) filing fee of P300.00; b) legal research fee; and c) additional filing fee if there be a claim for damages or attorney's fees.

Aruelo, upon filing the election protest with the trial court on June 2, 1992, paid the following amounts:

O.R. Amount

2084419-R P450.00 - Docket Fee-Judiciary Development Fund 8760129S 150.00 - General Fund 1407317 10.00 - Legal Research 1406063 5.60 - Summons Fee 2084420 46.00 - Summons Fee

From the above itemization, it is clear that Aruelo failed to pay the filing fee of P300.00 for the election protest prescribed by the COMELEC Rules of Procedure.

The amount of P600.00, consisting of P450.00 (Judiciary Development Fund) and P150.00 (General Fund), refers to the docket fee for Aruelo's claim for attorney's fees in the amount of P100,000.00 in accordance with the schedule provided for in Section (a), Rule 141 of the Revised Rules of Court (Cf. Rule 35, Section 9, third paragraph, COMELEC Rules of Procedure).

It is the payment of the filing fee that vests jurisdiction of the court over the election protest, not the payment of the docket fees for the claim of damages and attorney's fees. For failure to pay the filing fee prescribed under Section 9, Rule 35 of the COMELEC Rules of Procedure, the election protest must be dismissed. Under Section 9, Rule 35 of the COMELEC Rules of Procedure, "[n]o protest . . . shall be given due course without the payment of

a filing fee in the amount of three hundred pesos (P300.00) for each interest."

LOYOLA VS. CA

FACTS: In the barangay election of May 9, 1994, petitioner Alan M. Loyola was proclaimed on May 10, 1994 by the Barangay Board of Canvassers as the duly elected Punong Barangay of barangay Poblacion of the Municipality of Tangalan, Aklan.On May 18 1994, private respondent Aniceto Fernandez III, the defeated candidate, filed with the 4th MCTC of Macato-Tangalan an election protest against the petitioner.The protest filed by Fernandez was not accompanied by a certification of non-forum shopping required under SC Administrative Circular No. 04-94 which took effect on April 1, 1994 (which provides that a certificate of Non- Forum Shopping must be filed in any petition, application or other initiatory pleading in all courts or agencies other than in SC or CA. Non- Compliance or violation of which is a ground for dismissal of the petition etc.) However, the following day or on May 19, 1994, in compliance with the said circular, the private respondent, Fernandez submitted to the MCTC his certification of non-forum shopping.On May 25, 1994, the petitioner, Loyola filed a motion to dismiss the protest for the private respondent's failure to strictly comply with Administrative Circular No. 04-94. He claims that the filing of the certification on May 19, 1994 was merely the private respondent's desperate attempt to cure the jurisdictional flaw of his petition.MCTC and RTC respectively denied the motion to dismiss on the ground that the Admin Circular was only a procedural law and is not jurisdictional in character. The application of Administrative Circular No. 04-94 in its suppletory character may not be strictly applied to election cases; the circular is suppletory to the Rules of Court and the latter provides that the rules shall be liberally construed in order to promote speedy trial and although the affidavit of non- forum shopping was not simultaneously filed with his petition, it considers the same as substantial compliance for submitting it the next day.The same is appealed to CA which consequently dismissed the petition finding no error committed by the MCTC and RTC.

ISSUES: (1) whether Administrative Circular No. 04-94 is mandatory and jurisdictional; and (2) whether it is applicable in election cases.

HELD:

(1) The Circular is mandatory . It is not, however, jurisdictional. Jurisdiction over the subject or nature of the action is conferred by law. Substantial compliance with the Circular is sufficient. This Circular expanded or broadened the applicability of SC Circular No. 28-91 which was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure - which is to achieve substantial justice as expeditiously as possible.

The filing of the certification was still within the period for filing an election protest (10 days from proclamation). Accordingly, although the certification was not filed simultaneously with the initiatory pleading, its filing within the

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reglementary period was a substantial compliance with Administrative Circular No. 04-94.

The fact that the Circular requires that it be strictly complied with merely underscores its mandatory nature in that it cannot be dispensed with or its requirements altogether disregarded, but it does not thereby bar substantial compliance with its provisions under justifiable circumstances.

(2) The Circular is applicable to Election Cases . We do not agree with the MCTC that Admin Circular No. 04-94 is not applicable to election cases because it is merely amendatory of the Rules of Court. There is nothing in the Circular that indicates that it does not apply to election cases. On the contrary, it expressly provides that the requirements therein, which are in addition to those in pertinent provisions of the Rules of Court and existing circulars, "shall be strictly complied with in the filing of complaints, petitions, applications or other initiatory pleadings in all courts and agencies other than the SC and the CA." Ubi lex non distinguit, nec nos distinguere debemus.

We also disagree with MCTC in its ruling that considering that the MCTC has after all the original and exclusive jurisdiction over the election protest, the certification of non-forum shopping was unnecessary since the private respondent could not have filed the case anywhere else. The argument fails to consider the possibility of a party availing, rightly or wrongly, of other legal remedies; or of filing the same election protest in more than one MTC, despite the erroneous venues; or of even being unaware of the original exclusive jurisdiction of the MTC over such election protests and filing one of the protests in the RTC by mistake.

WHEREFORE, the instant petition is DENIED and the MCTC of Macato-Tangalan, Aklan, is directed to proceed with dispatch in the hearing and resolution of Election Protest Case. This decision is immediately executory.

DE CASTRO V. COMELEC

FACTS:

De Castro was proclaimed Mayor of Gloria, Oriental Mindoro while Medrano was proclaimed Vice-Mayor of the same municipality during the May 8, 1995 elections. On May 19, 1995, De Castro's rival candidate, the late Nicolas M. Jamilla, filed an election protest  before the RTC of Pinamalayan, Oriental Mindoro. During the pendency of said contest, Jamilla died.  Four days after such death or on December 19, 1995, RTC dismissed the election protest ruling as it did that "as this case is personal, the death of the protestant extinguishes the case itself. On January 15, 1996, Medrano filed his Omnibus Petition/Motion (For Intervention and/or Substitution with Motion for Reconsideration) which was opposed by De Castro

The RTC denied Medrano's Omnibus Petition/Motion and stubbornly held that an election protest being personal to the protestant, is ipso facto terminated by the latter's death. Unable to agree with the dismissal of the election protest, Medrano filed a petition for certiorari and mandamus before the Commission on Elections (COMELEC. COMELEC granted the petition. It ruled that an election contest involves both the private interests of the

rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee.

ISSUE:

Whether or not an election protest is a personal action extinguished upon the death of the real party in interest.

HELD:

No. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death.  Thus, applying the doctrine of actio personalis moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place.

But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings.

An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. As we have held in the case of Vda. de De Mesa v. Mencias:

. . . It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated. (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958).

The death of the protestant, as in this case, neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest.

The asseveration of petitioner that private respondent is not a real party in interest entitled to be substituted in the election protest in place of the late Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that:

. . . the Vice Mayor elect has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the Frotestee is unseated, the Vice-Mayor succeeds to the office of Mayor that becomes vacant if the one duly elected can not assume the post. 

SAMPAYAN VS. DAZA

FACTS:

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Petitioners filed a petition seeking to disqualify Daza, then incumbent congressman of their congressional district in Makati, from continuing to exercise the functions of his office on the ground that the latter is a greencard holder and a lawful permanent resident of the United States. They also alleged that Mr. Daza has not by any act or declaration renounced his status as permanent resident thereby violating the Omnibus Election Code (Section 68) and the 1987 Constitution (section 18, Article III).Respondent Congressman filed his Comment denying the fact that he is a permanent resident of the United States as evidenced by a letter order of the US Immigration and Naturalization Service, Los Angeles, U.S.A, he had long waived his status when he returned to the Philippines on August 12, 1985.

ISSUE: Whether or not respondent Daza should be

disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code

RULING:The Supreme Court vote to dismiss the instant case, first, the case is moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992, that they seek to unseat the respondent from his position as Congressman for the duration of his term ofoffice commencing June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election returns and qualification of its members.

The petitioner’s appropriate remedy should have been to file a petition to cancel respondent Daza’s certificate of candidacy before the election or a quo warranto case with the House of Electoral Tribunal within ten days after Daza’s proclamation.

Points to remember: HRET has exclusive jurisdiction over election contests

and qualifications of members of Congress Remedies against a disqualified House of

Representative candidate: (1) cancellation of certificate of candidacy filed with COMELEC before election; (2) quo warranto case filed with HRET after proclamation

D. Distinction Between Quo Warranto in Elective and Appointive Office

  Abella v. COMELEC   (201 SCRA 253) Sunga v. COMELEC   (288 SCRA 76)

CASES:ABELLA vs. COMELEC

FACTS

Initially, Silvestre dela Cruz (Benjamin Abella was allowed to intervene) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte.

It was alleged that she was in fact a resident of Ormoc City

like her husband who was earlier disqualified from running for the same office.

The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said area, sought to take his oath as governor ofKananga, Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, thematter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City."

ISSUES

Whether or not the candidate who got the second highest vote may be proclaimed as governor when the candidate for such position was disqualified.

Whether or not the petitioner is a registered voter of Kananga, Leyte [the petitioner insists that she is such a registered voter based on the following antecedents: 1 She cancelled her registration in Ormoc City on Nov 25, 1987, and 2 she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (Feb 1, 1988) in Kananga, Leyte.]

Whether or not Abella can assume position of governor by virtue of Section 6 RA 6646.

HELDIssue #1: The Supreme Court held that while it is true that SPC No.

88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of February 1, 1988 in the provinceof Leyte proceeded with Larrazabal considered as a bona fide candidate.

The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate.

As regards the principle of ANIMUS REVERTENDI [Faypon v. Quirino:[M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient toconstitute abandonment or loss of such residence.' The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.]

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City

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with her husband and considers herself aresident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present.

The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives although for intents and purposes we have already transferred our residence toother places.

Issue #2: We find the version pressed by respondent unworthy of

belief. The story is marked by so many bizarre circumstances not consistent with the ordinary course of events or the natural behavior of persons. Among these are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope; (2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; (3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else; (4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; (5) All the members of the BEI had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM (6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed; (7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. (8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct. The most telling evidence is the list of voters, that the

Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only 9 additional registered voters in Precinct 17, petitioner was not there. It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for thefirst time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names.

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides:

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials.

The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be

elected as provincial officials. The argument is untenable. Section 12, Article X of the Constitution is explicit in that

aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition.

Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices.

The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official."

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the electionFOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote."

The Court finds the petitioner's interpretation fallacious. In the case of Mapa v. Arroyo, the conjunction and between the phrase shall not be qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte."

Issue #3: Abella claims that the Frivaldo and Labo cases were

misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted.

The votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making

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her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate.

In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position.

It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, with three dissenting and another two reserving their vote. One was on official leave.

... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legalvotes cast in the election.

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not 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. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there.

However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

SUNGA vs. COMELEC

FACTS: Manuel C. Sunga was one of the candidates for the position

of Mayor in the Municipality of Iguig, Province of Cagayan, in the 8 May 1995 elections.  Private respondent Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality.

On April 22,1995 Sunga filed a letter-complaint with the COMELEC for the disqualification of Trinidad for having used 3 government vehicles for the latter’s candidacy. Another letter complaint was filed by Sunga in addition to the first  on May 7,1995 charging Trinidad this time of threat, intimidation, terrorism and other forms of coercion. This was followed by an Amended Petition for disqualification consolidating the charges in the two  (2) letters-complaint, including vote buying,   and providing more specific details of the violations committed by Trinidad.

Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second. 

On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad.  However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation.  Both motions were not acted upon by the COMELEC 2nd Division.

COMELEC Law Department submitted its Report to the COMELEC En Banc  recommending that Trinidad be charged in court for violation of the penal provisions  of the Omnibus Election Code to which the COMELEC En Banc approved and directed the filing of the corresponding informations  in the Regional Trial Court against Trinidad. Accordingly, four (4) information for various elections offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan.

In its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification stating that “as interpreted in the case of Silvestre v. Duavit,  SPA 94-003, Resolution No. 2050 provides for the outright dismissal of the disqualification case in three cases:  (1) The disqualification case was filed before the election but remains unresolved until after the election;  (2) The disqualification case was filed after the election and before the  proclamation of winners; and (3) The disqualification case was filed after election and after proclamation.

Issue: Whether or not COMELEC can hear and decide disqualification cases against winning candidates even after the election.

Held:Election law 39

That the Amended Petition was filed only on 11 May 1995, or after the elections, is of no consequence.  It was merely a reiteration of the charges filed by petitioner against private respondent on 26 April 1995 and 7 May 1995 or before the elections.  Consequently, the Amended Petition retroacted to such earlier dates.  An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after the service of the original complaint.

We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election.  What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified.  The findings of the Law Department then become the basis for disqualifying the erring candidate.  This is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.

Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit  infringes on Sec. 6 of RA No. 6646,[10] which provides:

SEC. 6. Effects of Disqualification Case. -  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.  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 pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (underscoring supplied).

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon.  The word “shall” signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election.   Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit  in effect disallows what RA No. 6646 imperatively requires.  This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority.  Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect.  By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited.   Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress.   Hence, in case of a discrepancy between the

basic law and an interpretative or administrative ruling, the basic law prevails.

The Supreme Court ruled that COMELEC is left with no discretion but to proceed with the disqualification case even after the election. The fact that Trinidad was already proclaimed and has assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case.

The fact that the candidate who obtained the highest number of votes is later disqualified for the office to which he was elected does not entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. Hence, Sunga cannot claim the right to take the oath for the mayoral office because the Local Government Code clearly provides that in case of disqualification of the one proclaimed for the said office, the vice-mayor shall assume office.

 E. Execution Pending Appeal

Ramos v. COMELEC   (286 SCRA 189) Asmala v. COMELEC   (289 SCRA 746) Zacate v. COMELEC   (G.R. No. 144678, March

1, 2001) Santos v. COMELEC (G.R. No. 155618, March

26, 2003)

CASES:ROBERTO D. RAMAS, FRANCISCO N. ORAIZ, JR.,

BENERANDO F. MIRANDA, GEORGE V. BATERNA, TOMAS R. LACIERDA, SR., and PEDRO T. CALIMOT, JR.

vs.COMMISSION ON ELECTIONS, RAUL F. FAMOR, PONCIANO

P. CAJETA, MERLYN U. RABE, CRESENCIA C. BOISER, EDGAR S. REVELO, and JULIETO B. MABASCOG

Facts: The petitioners and the private respondents were the official

candidates of the Nationalist People's Coalition (NPC) and the Lakas-NUCD, respectively, for the elective municipal positions of Guipos, Zamboanga del Sur, in the elections of 8 May 1995. After the canvass of the election returns, the Municipal Board of Canvassers of Guipos declared and proclaimed the petitioners as the duly elected municipal officials.

Respondents Raul F. Famor and Ponciano P. Cajeta, the losing candidates for mayor and vice mayor, respectively, as well as Merlyn U. Rabe, Crescencia C. Boiser, Edgar S. Revelo, and Julieto B. Mabascog, the 9th, 10th, 11th, and 12th placers, respectively, for members of the SB, seasonably filed separate election protests with the RTC of Pagadian City.

The trial court rendered a 103-page decision declaring petitioner Miranda and all the private respondents except Mabascog as winners. Famor, Cajeta, Rabe, Revelo and Boiser filed a Motion for Immediate Execution of Decision Pending Appeal.

The petitioners filed their Opposition to the Motion for Immediate Execution. Trial court issued an order granting the motion for execution pending appeal. Petitioners assailed the trial court's order granting execution pending appeal in a Petition for Certiorari and Prohibition with Prayer for Preliminary Injunction and/or Temporary Restraining Order filed with the COMELEC. A Temporary Restraining Order was forthwith issued.

COMELEC promulgated a

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Resolution denying the petition. It explained that: xxx public interest and the pendency of

the protest for one (1) year (sic) sufficient to grant execution pending appeal. In election cases, over and above the claims of the respective contestants is the deep public interest involved, the need to imperatively determine the correct expression of the will of the electorate. So much so that laws governing election protest must be literally (sic) interpreted to the end that the popular will expressed in the election of public officers will not, by reason of purely technical objections, be defeated.

Issue: WON the COMELEC acted with grave abuse of discretion in

rendering the challenged resolution. NO

Held: This Court has explicitly recognized and given approval to

execution of judgments pending appeal in election cases filed under existing election laws. In those cases, the immediate execution was made in accordance with Section 2 of Rule 39 of the Rules of Court.

All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based "upon good reasons to be stated in a special order.

In a nutshell, the following constitute "good reasons," and a combination of two or more of them will suffice to grant execution pending appeal: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending.

In the instant case, the trial court relied on the following as "good reasons" for its grant of execution pending appeal: (1) public interest, (2) near expiration of the term of the office involved, and (3) pendency of the election protest for one year. The trial court cannot, therefore, be said to have acted with grave abuse of discretion. Hence, the COMELEC acted correctly.

ASMALA v. COMELEC( execution pending appeal)

Facts: In the election for the position of vice mayor for the municipality of Tuburan, Basilan, the canvass of votes indicated that: Hadji Hisni Mohammad garnered 3, 065, Emmanuel Alano 2, 912 and Halim Asmala 2, 542 votes. As a result, Mohammad was proclaimed and later assumed office of vice mayor of Tuburan. On May 22, 1995, Asmala filed an election protest with RTC of Basilan on the grounds of fraud and irregularities. During hearing the court found at that there are irregularities and consequently invalidated such ballots. RTC rendered its decision crediting Asmala with 2, 130, Mohammad with 1, 729 and Alano 1, 920, adjudging Asmala the duly elected vice mayor of Tuburan, Basilan.

After promulgation of decision, Mohammad filed his notice of appeal with RTC. On the following date Asmala filed a Motion for Execution Pending Appeal. Thereto Private Mohammad interpose his opposition theorizing that his perfected appeal divested the trial court of jurisdiction to resolve the motion for execution pending appeal. On March 28, 1995, after due hearing the trial court came with Special order granting the motion for execution pending appeal and instructing the sheriff to install Asmala as vice mayor after the latter’s proclamation by

comelec and taking oath of office.Mohammad filed a motion for certiorari with comelec

theorizing that the special order of RTC was issued without or in excess of jurisdiction considering that his notice of appeal was perfected. COMELEC granted the petition of Mohammad and set aside the order of RTC. Mohammad moved for the execution of Comelec order and comelec issued the writ of execution. Asmala file a supplemental petition, praying for temporary restraining order to forestall implementation of the COMELEC resolution.

Issue: w/n the mere filing of a notice of appeal divest RTC of its jurisdiction over the case and resolve pending incidents.

Ruling:The settled rule is that the mere filing of a notice of

appeal does not divest the trial court of its jurisdiction over a case and resolve pending incidents. Where the motion for execution pending appeal was filed within the reglementary period for perfecting an appeal as in the case at bench, the filing of notice of appeal by the opposing party is of no moment and does not divest the trial court of its jurisdiction to resolve the motion for immediate execution of the judgment pending appeal because the court must hear and resolve it for it would become part of the records to be elevated on appeal. Since the court has jurisdiction to act on the motion at the time it was filed, that jurisdiction continued until the matter was resolved and was not lost by subsequent action of the opposing party.

An appeal is perfected upon expiration of the last day to appeal by any party and it is not perfected on the date notice of appeal was filed. Thus trial court still has jurisdiction over the case because as to Asmala, appeal was not yet perfected. In such scenario, the trial court had the jurisdiction and competence to act on Asmala’s motion for execution pending appeal. Wherefore, the resolution of comelec is set aside and special order of RTC is reinstated.

ZACATE vs. COMELEC ( G.R. No. 144678, Mar. 1, 2001 )“Election Contests, E. Execution Pending Appeal”

Facts: Petitioner Javier E. Zacate and private respondent Thelma C. Baldado were candidates for the position of Mayor in the Municipality of Sulat, Eastern Samar, in the May, 1998 elections.  The Municipal Board of Canvassers, proclaimed private respondent as the duly elected mayor having garnered 2,958 votes as against the 2,719 votes of petitioner, private respondent winning by 239 votes.  Petitioner filed an election protest before the Regional Trial Court of Borongan, Samar.  The trial court declared petitioner as the duly elected Mayor with only one vote as his winning margin.  On the same date private respondent filed a notice of appeal.  The following day, petitioner filed a Motion for Immediate Execution of Judgment Pending Appeal which private respondent opposed on the ground that she had already perfected her appeal.  The trial court rendered a Supplemental Decision, correcting the winning margin of petitioner to 2 votes instead of 1 vote and at the same time denied the motion for execution of judgment pending appeal filed by petitioner and ordered further the transmission of the complete records of the protest case to the Comelec.  Petitioner then filed a Motion for Partial Reconsideration to reverse denial of his motion for execution pending appeal.  After hearing, the trial court issued a Resolution reversing its Supplemental Decision. The Resolution ruled that the trial court still had jurisdiction over the motion for execution pending appeal, that there are good and valid reasons for granting the same.

Issue:

Election law 41

Whether or not the trial court has jurisdiction of the case and whether or not discretionary execution is proper.

Held: Discretionary execution is barred when the trial court loses jurisdiction and this occurs when all the parties have filed their respective appeals or when the period to appeal has lapsed for those who did not file their appeals and when the court is no longer in possession of the records of the case.  The perfection of an appeal within the statutory or reglementary period is not only mandatory but also jurisdictional and failure to so renders the questioned decision final and executory, and deprives the appellate court or body of jurisdiction to alter the final judgment much less to entertain the appeal.  While petitioner timely filed motion for execution pending appeal, petitioner belatedly filed the motion for reconsideration of the denial of his motion for execution pending appeal rendering said denial final and executory.  While the Supplemental Decision wrongly denied petitioner’s motion for execution pending appeal, the remedy left for petitioner then was to timely seek relief from the erroneous ruling.  This petitioner failed to do.

EDGAR Y. SANTOS, petitioner, vs.

COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDRO Q. PANULAYA, respondents.

FACTS:Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both candidates for Mayor of the Municipality of Balingoan, Misamis Oriental in the May 14, 2001 elections. On May 16, 2001, after the votes were counted and canvassed, the Municipal Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor.Santos filed an election protest before the Regional Trial Court of Misamis Oriental. After trial and revision of the ballots, the trial court found that Santos garnered 2,181 votes while Panulaya received only 2,105. Hence, on April 2, 2002, it rendered judgment declaring and proclaiming protestant/petitioner Santos as the duly elected Municipal Mayor of Balingoan, Misamis Oriental, in the mayoralty elections held on May 14, 2001 with the plurality of 76 votes over and setting aside as null and void the proclamation of Panulaya made by the Municipal Board of Canvassers on May 16, 2001Santos thereafter filed a motion for execution pending appeal. Meanwhile, before the trial court could act on petitioner’s motion, Panulaya filed with the COMELEC a petition for certiorari assailing the decision of the trial court. Likewise Panulaya appealed the trial court’s decision to the COMELEC.The COMELEC issued a Writ of Preliminary Injunction, which effectively enjoined the trial court from acting on petitioner’s motion for execution pending appeal. Subsequently, COMELEC dismissed the writ of preliminary injunction after finding that the trial court did not commit grave abuse of discretion in rendering the assailed judgment. COMELEC also held that the remedy from the decision of the court a quo was to file a notice of appeal, which Panulaya precisely did. Hence, it directed the trial court to dispose of all pending incidents in election protest of Santos. Thus, the trial court issued an Order which upheld and approved the Motion for Execution Pending Appeal. Further, the Court directed and ordered the immediate execution of the Decision promulgated on April 18, 2002, and as prayed for install SANTOS as the duly elected Mayor to take his oath of office and assume the functions and duties of Mayor after he shall have filed a bond of One Hundred Thousand Pesos (P100,000.00).After Santos posted the required bond, the trial court issued the Writ, installing Santos as Municipal Mayor. Accordingly, Santos took his oath of office and thereafter assumed the duties and

functions of his office.Panulaya then filed with the COMELEC a motion for reconsideration of the dismissal of his petition. After five days, he filed a supplemental petition and prayed that the resolution, order and writ of execution be set aside. He further prayed that in the event that the COMELEC has carried out its Order of ousting Panulaya from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect and that a STATUS QUO ANTE ORDER be issued by COMELEC in order to reinstate the Panulaya to his rightful position as Mayor.Barely two days later, and while his motion for reconsideration and supplemental petition were pending, Panulaya filed another petition with the COMELEC which contained the same prayer, that such be set aside immediately upon filing of the petition.COMELEC issued the assailed Order directing the parties to maintain the status quo ante and enjoining Santos from assuming the functions of Mayor until further orders from the Commission. Santos filed a motion for reconsideration of the above Order. However, the COMELEC First Division did not refer the said motion to the COMELEC En Banc. Hence, petitioner, citing the ruling in Kho v. COMELEC, brought the instant special civil action for certiorari with the Supreme Court.Meanwhile, Santos filed an Omnibus Motion to dissolve the status quo order as it was based on an unverified and dismissed petition with pending motion for reconsideration and to refer this motion to the Commission En Banc. COMELEC issued a Resolution setting aside the decision of the court and enjoined Santos from assuming functions as mayor until the final determination of the election appeal case.

ISSUE:Whether or not the COMELEC committed grave abuse of discretion in giving due course on Panulaya's petition despite the clear showing of his guilt of forum-shopping; and in setting aside the trial court’s order granting execution pending appeal.

HELD: YESConsidering that Panulaya was indubitably guilty of forum-shopping when he filed a wholly separate petition for certiorari wherein he pleaded the same reliefs prayed for in the supplemental petitition, his petition should have been dismissed outright by the COMELEC.The petition assailed the trial court’s orders for the execution of its decision pending appeal. The grant of execution pending appeal was well within the discretionary powers of the trial court. In order to obtain the annulment of said orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a reversible error committed by the trial court, but a grave abuse of discretion amounting to lack or excess of jurisdiction. "Grave abuse of discretion" implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough.Supreme Court found that no grave abuse of discretion was committed by the trial court. In its order granting execution pending appeal, it held:

It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to this Court’s jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the trial court of its jurisdiction

Election law 42

over the case and to resolve pending incidents, i.e., motion for execution pending appeal (Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.

Supreme Court disagreed with the COMELEC for setting aside the aforesaid order, saying that shortness of term alone is not a good reason for execution of a judgment pending appeal. While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, it was clearly stated in Fermo v. COMELEC that “A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending (italics supplied).The decision of the trial court in election protest was rendered after almost one year of trial and revision of the questioned ballots. It found Santos as the candidate with the plurality of votes. Panulaya appealed the said decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the electorate, as determined by the trial court in the election protest, had to be respected and given meaning. The Municipality of Balingoan, Misamis Oriental, needed the services of a mayor even while the election protest was pending, and it had to be the candidate judicially determined to have been chosen by the people.Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the court’s decision that should prevail.

 F.                  Award of Damages 

Atienza v. COMELEC   (G. R. No. 108533, Dec. 20, 1994)

Malaluan v. COMELEC (254 SCRA 397)

CASES:LOU A. ATIENZA, Petitioner, vs. COMMISSION ON ELECTIONS and ANTONIO G. SIA, Respondents.

Facts:Private respondent Antonio G. Sia was elected mayor of the Municipality of Madrilejos, Cebu in the 1988 local elections obtaining a plurality of 126 votes over his nearest rival, herein petitioner Lou A. Atienza. Following Sia's proclamation by the Municipal Board of Canvassers, petitioner filed an election with the Regional Trial Court questioning the results of the elections in a number of precincts in the municipality. 

On April 12, 1989 the Regional Trial Court rendered its decision declaring petitioner the winner of the municipal elections and ordering the private respondent to reimburse petitioner the amount of P300,856.19 representing petitioner's expenses in the election protest. Private respondent appealed the trial court's decision to the Commission on Elections (COMELEC) raising as errors 1) the computation of the number of votes received by the candidates; and 2) the alleged award of "excessive damages" in favor of the petitioner. 3 The case was docketed as EAC No. 20-89 and assigned to the COMELEC's Second Division.chanroblesvirtuallawlibrary chanrobles virtual law libraryThe COMELEC, en banc, issued an Order setting aside the preliminary injunction and thereby allowing petitioner to assume as mayor of the Municipality of Madrilejos pending resolution of his appeal. 4 However, following the synchronized elections of

May 11, 1992, the Presiding Commissioner of the COMELEC's Second Division issued an Order dismissing petitioner's appeal for being moot and academic pursuant to the Commission's decision declaring the election protest and appeal cases - as well as petitions for special relief - arising out of the January 18, 1988 elections dismissed and terminated. The Second Division of COMELEC stated in its Order that "(t)he election protest cases mentioned in the aforecited order are those protest cases over which the Commission has original jurisdiction. Hence, it is only the appeal case that was dismissed for being moot and academic." Petitioner argues that when the appeal from the trial court's decision was dismissed for being moot and academic, it was as if "no appeal had ever been taken" and that the trial court's decision thereby remained "untouched," valid and subsisting. 

Issue: Whether or not the Commission on Elections acted with grave abuse of discretion when it issued its Resolution of January 28, 1993 reversing the lower court's judgment awarding damages to herein petitioner after it had earlier dismissed EAC No. 20-89 for being moot and academic?

Held:The Court disagreed with petitioner. In clarification, the COMELEC's Second Division immediately issued an order stating that the protest cases mentioned in its earlier order only included those cases in which the body possessed original jurisdiction, and hence it was only the appeal case which was dismissed for being moot and academic.   Since the question relating to the lower court's award of P300,856.19 could not have been rendered moot and academic by the May 11, 1992 elections, the COMELEC pointed out that the second part of the lower court's decision was a matter which had nothing to do with the expiration of the term of office and could not have been dismissed by the said body. 8 chanrobles virtual law libraryIn support of his averments, however, petitioner cites Yorac vs. Magalona 9 as authority for his claim that "when the appeal is dismissed, 'the decision of the lower court shall stand,'" 10 and further contends that the following provision of the Rules of Court should be given suppletory effect, the Omnibus Election Code and the Comelec Rules of Procedure being bereft of any provision defining the effect of dismissal of cases before the said body. Section 2, Rule 50 of the said Rules states:

Sec. 2. Effect of Dismissal. Fifteen days after the dismissal of an appeal, the clerk shall return to the court below the record on appeal with a certificate under the seal of the Court showing that the appeal had been dismissed. Upon receipt of such certificate in the lower court the case shall stand there as though no appeal had been taken, and the judgment of the said court may be enforced with additional costs allowed by the court upon dismissal of the appeal.

In fine, Section 259 of the Omnibus Election Code merely provides for the granting of actual and compensatory damages in accordance with law. That it was the intent of the legislature to do away with provisions indemnifying the victorious party for expenses incurred in an election contest in the absence of a wrongful act or omission clearly attributable to the losing party cannot be gainsaid. The intent, moreover, to do away with such provisions merely recognizes the maxim, settled in law that a wrong without damage or damage without wrong neither constitutes a cause of action nor creates a civil obligation. Finding no reversible error in the assailed resolution, the instant petition is hereby DISMISSED.

Election law 43

LUIS MALALUAN vs . COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA

FACTS: Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on May 11, 1992.  Private respondent Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner’s 9,792 votes.  Evangelista was, thus, said to have a winning margin of 706 votes.  But, on May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality.  The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes.  Acting without precedent, the court found private respondent liable not only for Malaluan’s protest expenses but also for moral and exemplary damages and attorney’s fees. On February 3, 1994, private respondent appealed the trial court decision to the COMELEC.

Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal.  The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a bond in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of MunicipaJ Mayor of Kidapawan, North Cotabato, and exercised the powers and functions of said office. Such exercise was not for long, though. In the herein assailed decision adverse to Malaluan’s continued governance of the Municipality of Kidapawan, North Cotabato, the First Division of the Commission on Elections (COMELEC) ordered Malaluan to vacate the office, said division having found and so declared private respondent to be the duly elected Municipal Mayor of said municipality.  The COMELEC en banc affirmed said decision.

Malaluan filed this petition before us on May 31, 1995 as a consequence.It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30, 1995.  This petition, thus, has become moot and academic insofar as it concerns petitioner’s right to the mayoralty seat in his municipality because expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic.

When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value.Indeed, this petition appears now to be moot and academic because the herein parties are contesting an elective post to which their right to the office no longer exists.  However, the question as to damages remains ripe for adjudication.  The COMELEC found petitioner liable for attorney’s fees, actual expenses for xerox copies, and unearned salary and other emoluments from March, 1994 to April, 1995, en mUsse denominated as actual damages, default in payment by petitioner of which shall result in the collection of said amount from the bond posted by petitioner on the occasion of the grant of his motion for execution pending appeal in the trial court.  Petitioner naturally contests the propriety and legality of this award upon private respondent on the ground that said damages have not been alleged and proved during trial.

ISSUE:

Whether or not the COMELEC gravely abused its discretion in awarding the aforecited damages in favor of private respondent?

HELD: YES. The Omnibus Election Code provides that “actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law.” COMELEC Rules of Procedure provide that “in all election contests the Court may adjudicate damages and attorney’s fees as it may deem just and as established by the evidence if the aggrieved party has included such claims in his pleadings.” This appears to require only that the judicial award of damages be just and that the same be borne out by the pleadings and evidence. 

The First Division of the COMELEC ruled on private respondent’s claim for actual or compensatory damages in this wise.

We find respondent COMELEC’s reasoning in awarding the damages in question to be fatally flawed.  The COMELEC found the election protest filed by the petitioner to be clearly unfounded because its own appreciation of the contested ballots yielded results contrary to those of the trial court.  In other words, the actuations of the trial court, after the filing of a case before it, are its own, and any alleged error on its part does not, in the absence of clear proof, make the suit “clearly unfounded” for which the complainant ought to be penalized.  Insofar as the award of protest expenses and attorney’s fees are concerned, therefore we find them to have been awarded by respondent COMELEC without basis, the election protest not having been a clearly unfounded one under the aforementioned circumstances.

We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially without any color of right, the petitioner exercised the duties of an elective office under color of election thereto. It matters not that it was the trial court and not the COMELEC that declared petitioner as the winner, because both, at different stages of the electoral process, have the power to so proclaim winners in electoral contests.  At the risk of sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by the COMELEC-convened Board of Canvassers for a winning candidate’s right to assume office, for both are undisputedly legally sanctioned. We deem petitioner, therefore, to be a “de facto officer who, in good faith, has haa possession of the office and had discharged the duties pertaining thereto” and is thus “legally entitled to the emoluments of the office.”

To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and compensatory damages in accordance with law.  The victorious party in an election case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party.  Evidently, if any damage had been suffered by private respondent due to the execution ofjudgment pending appeal, that damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law provides no remedy.

 

XIII. ELECTION OFFENSES

A. Prohibited Acts –Sec. 261,BP 881; Secs. 45-46, RA 8189;

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ARTICLE XXIIELECTION OFFENSES

Section 261. Prohibited Acts. - The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. -

(1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.

(b) Conspiracy to bribe voters. - Two or more persons, whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it.

(c) Wagering upon result of election. - Any person who bets or wagers upon the outcome of, or any contingency connected with an election. Any money or thing of value or deposit of money or thing of value situated anywhere in the Philippines put as such bet or wager shall be forfeited to the government.

(d) Coercion of subordinates. -

(1) Any public officer, or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or land-owner who coerces or intimidates or compels, or in any manner influence, directly or indirectly, any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates.

(2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation or association, or any head, superior or administrator of any religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes or threatens to punish be reducing his salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee or house

helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates.

(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. - Any person who, directly or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom.

(f) Coercion of election officials and employees. - Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties.

(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. - During the period of forty-five days before a regular election and thirty days before a special election,

(1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.

(2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.

(h) Transfer of officers and employees in the civil service. - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.

(i) Intervention of public officers and employees. - Any

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officer or employee in the civil service, except those holding political offices; any officer, employee, or member or the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

(j) Undue influence. - It is unlawful for any person to promise any office or employment, public or private, or to make or offer to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association, corporation or entity, which may induce anyone or the public in general either to vote or withhold his vote, or to vote for or against any candidate in any election or any aspirant for the nomination or selection of an official candidate in a convention of a political party. It is likewise unlawful for any person, association, corporation or community, to solicit or receive, directly or indirectly, any expenditure or promise or any office, or employment, public or private, for any of the foregoing considerations.

(k) Unlawful electioneering. - It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof.

(l) Prohibition against dismissal of employees, laborers, or tenants. - No employee or laborer shall be dismissed, nor a tenant be ejected from his landholdings for refusing or failing to vote for any candidate of his employer or landowner. Any employee, laborer or tenant so dismissed or ejected shall be reinstated and the salary or wage of the employee or laborer, or the share of the harvest of the tenant, shall be restored to the aggrieved party upon application to the proper court.

(m) Appointment or use of special policemen, special agents, confidential agents or the like. - During the campaign period, on the day before and on election day, any appointing authority who appoints or any person who utilizes the services of special policemen, special agents, confidential agents or persons performing similar functions; persons previously appointed as special policemen, special agents, confidential agents or persons performing similar functions who continue acting as such, and those who fail to turn over their firearms, uniforms, insignias and other badges of authority to the proper officer who issued the same.

At the start of the aforementioned period, the barangay chairman, municipal mayor, city mayor, provincial governor, or any appointing authority shall submit to the Commission a complete list of all special policemen, special agents, confidential agents or persons performing similar functions in the employ of their respective political subdivisions, with such particulars as the Commission may require.

(n) Illegal release of prisoners before and after election. - The Director of the Bureau of Prisons, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody who

illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof sixty days before and thirty days after the election. The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their care. Detention prisoners must be categorized as such.

(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. - Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity.

(p) Deadly weapons. - Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving order and enforcing the law.

(q) Carrying firearms outside residence or place of business. - Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to persons who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables.

(r) Use of armored land, water or air craft. - Any person who uses during the campaign period, on the day before and on election day, any armored land, water or air craft, provided with any temporary or permanent equipment or any other device or contraption for the mounting or installation of cannons, machine guns and other similar high caliber firearms, including military type tanks, half trucks, scout trucks, armored trucks, of any make or model, whether new, reconditioned, rebuilt or remodelled: Provided, That banking or financial institutions and all business firms may use not more than two armored vehicles strictly for, and limited to, the purpose of transporting cash, gold bullion or other valuables in connection with their business from and to their place of business, upon previous authority of the Commission.

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(s) Wearing of uniforms and bearing arms. - During the campaign period, on the day before and on election day, any member of security or police organization of government agencies, commissions, councils, bureaus, offices, or government-owned or controlled corporations, or privately-owned or operated security, investigative, protective or intelligence agencies, who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place of work: Provided, That this prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, buildings or offices: Provided, further, That in the last case prior written approval of the Commission shall be obtained. The Commission shall decide all applications for authority under this paragraph within fifteen days from the date of the filing of such application.

During the same period, and ending thirty days thereafter any member of the Armed Forces of the Philippines, special, forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who wears his uniform or bears arms outside the camp, garrison or barracks to which he is assigned or detailed or outside their homes, in case of members of para-military units, unless (1) the President of the Philippines shall have given previous authority therefor, and the Commission notified thereof in writing, or (2) the Commission authorizes him to do so, which authority it shall give only when necessary to assist it in maintaining free, orderly and honest elections, and only after notice and hearing. All personnel of the Armed Forces authorized by the President or the Commission to bear arms or wear their uniforms outside their camps and all police and peace officers shall bear their true name, rank and serial number, if any, stitched in block letters on a white background on the left breast of their uniform, in letters and numbers of a clearly legible design at least two centimeters tall, which shall at all times remain visible and uncovered.

During the election period, whenever the Commission finds it necessary for the promotion of free, orderly, honest and peaceful elections in a specific area, it shall confiscate or order the confiscation of firearms of any member or members of the Armed Forces of the Philippines, police forces, home defense forces, barangay self-defense units, and all other para-military units that now exist, or which may hereafter be organized, or any member or members of the security or police organization, government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporations and other subsidiaries, or of any member or members of privately owned or operated security, investigative, protective or intelligence agencies performing identical or similar functions.

(t) Policemen and provincial guards acting as bodyguards or security guards. - During the campaign period, on the day before and on election day, any member of the city or municipal police force, any provincial or sub-provincial guard, any member of the Armed Forces of the Philippines, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who acts as bodyguard or security guard of any public official, candidate or any

other person, and any of the latter who utilizes the services of the former as bodyguard or security guard: Provided, That, after due notice and hearing, when the life and security of a candidate is in jeopardy, the Commission is empowered to assign at the candidate's choice, any member of the Philippine Constabulary or the police force of any municipality within the province to act as his bodyguard or security guard in a number to be determined by the Commission but not to exceed three per candidate: Provided, however, That when the circumstances require immediate action, the Commission may issue a temporary order allowing the assignment of any member of the Philippine Constabulary or the local police force to act as bodyguard or security guard of the candidate, subject to confirmation or revocation.

(u) Organization or maintenance of reaction forces, strike forces, or other similar forces. - Any person who organizes or maintains a reaction force, strike force or similar force during the election period.

The heads of all reaction forces, strike forces, or similar forces shall, not later than forty-five days before the election, submit to the Commission a complete list of all members thereof with such particulars as the Commission may require.

(v) Prohibition against release, disbursement or expenditure of public funds. - Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for:

(1) Any and all kinds of public works, except the following:

(a) Maintenance of existing and/or completed public works project: Provided, That not more than the average number of laborers or employees already employed therein during the six-month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such time: Provided, further, That no additional laborers shall be employed for maintenance work within the said period of forty-five days;

(b) Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called "takay" or "paquiao" system shall not be considered as work by contract;

(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials

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and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and

(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.

No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph.

This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them.

(2) The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to said ministry, except for salaries of personnel, and for such other routine and normal expenses, and for such other expenses as the Commission may authorize after due notice and hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries and offices of other ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and

(3) The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing.

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. - During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value

chargeable against public funds.

(x) Suspension of elective provincial, city, municipal or barangay officer. - The provisions of law to the contrary notwithstanding during the election period, any public official who suspends, without prior approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the "Anti-Graft and Corrupt Practices Act" in relation to the suspension and removal of elective officials; in which case the provisions of this section shall be inapplicable.

(y) On Registration of Voters:

(1) Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote.

(2) Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration.

(3) Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter's affidavit; or any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records.

(4) Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications.

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.

(6) Any person who registers in substitution for another whether with or without the latter's knowledge or consent.

(7) Any person who tampers with or changes without authority any data or entry in any voter's application for registration.

(8) Any person who delays, hinders or obstruct another from registering.

(9) Any person who falsely certifies or identifies another as a bona fide resident of a particular place or locality for the purpose of securing the latter's registration as a voter.

(10) Any person who uses the voter's affidavit

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of another for the purpose of voting, whether or not he actually succeeds in voting.

(11) Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter's application, except upon lawful order of the Commission, or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125 hereof.

(12) Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place.

(13) Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter's affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter's affidavit of another and the latter are both members of the same family.

(14) Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter's affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter's affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof.

(15) Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters.

(16) Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission.

(17) Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place.

(z) On voting:

(1) Any person who fails to cast his vote without justifiable excuse.

(2) Any person who votes more than once in the same election, or who, not being a registered voter, votes in an election.

(3) Any person who votes in substitution for another whether with or without the latter's knowledge and/or consent.

(4) Any person who, not being illiterate or physically disabled, allows his ballot to be prepared by another, or any person who prepares the ballot of another who is not illiterate or physically disabled, with or without the latter's knowledge and/or consent.

(5) Any person who avails himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted.

(6) Any voter who, in the course of voting, uses a ballot other than the one given by the board of election inspectors or has in his possession more than one official ballot.

(7) Any person who places under arrest or detains a voter without lawful cause, or molests him in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote, or to compel him to reveal how he voted.

(8) Any member of the board of election inspectors charged with the duty of reading the ballot during the counting of votes who deliberately omits to read the vote duly written on the ballot, or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the ballot.

(9) Any member of the board of election inspectors charged with the duty of tallying

the votes in the tally board or sheet, election returns or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman.

(10) Any member of a board of election inspectors who has made possible the casting of more votes than there are registered voters.

(11) Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election.

(12) Any person who, without legal authority,

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destroys, substitutes or takes away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election.

(13) Any person having legal custody of the ballot box containing the official ballots used in the election who opens or destroys said box or removes or destroys its contents without or against the order of the Commission or who, through his negligence, enables any person to commit any of the aforementioned acts, or takes away said ballot box from his custody.

(14) Any member of the board of election inspectors who knowingly uses ballots other than the official ballots, except in those cases where the use of emergency ballots is authorized.

(15) Any public official who neglects or fails to properly preserve or account for any ballot box, documents and forms received by him and kept under his custody.

(16) Any person who reveals the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot.

(17) Any person who, without authority, transfers the location of a polling place.

(18) Any person who, without authority, prints or causes the printing of any ballot or election returns that appears as official ballots or election returns or who distributes or causes the same to be distributed for use in the election, whether or not they are actually used.

(19) Any person who, without authority, keeps, uses or carries out or causes to be kept, used or carried out, any official ballot or election returns or printed proof thereof, type-form mould, electro-type printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or election returns.

(20) Any official or employee of any printing establishment or of the Commission or any member of the committee in charge of the printing of official ballots or election returns who causes official ballots or election returns to be printed in quantities exceeding those authorized by the Commission or who distributes, delivers, or in any manner disposes of or causes to be distributed, delivered, or disposed of, any official ballot or election returns to any person or persons not authorized by law or by the Commission to receive or keep official ballots or election returns or who sends or causes them to be sent to any place not designated by law or by the Commission.

(21) Any person who, through any act, means or device, violates the integrity of any official ballot or election returns before or after they are used in the election.

(22) Any person who removes, tears, defaces or destroys any certified list of candidates posted inside the voting booths during the hours of voting.

(23) Any person who holds or causes the holding of an election on any other day than that fixed by law or by the Commission, or stops any election being legally held.

(24) Any person who deliberately blurs his fingerprint in the voting record.

(aa) On Canvassing:

(1) Any chairman of the board of canvassers who fails to give due notice of the date, time and place of the meeting of said board to the candidates, political parties and/or members of the board.

(2) Any member of the board of canvassers who proceeds with the canvass of the votes and/or proclamation of any candidate which was suspended or annulled by the Commission.

(3) Any member of the board of canvassers who proceeds with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time and place of the meeting of the board to the candidates, political parties, and/or other members of the board.

(4) Any member of the board of canvassers who, without authority of the Commission, uses in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the election returns.

(bb) Common to all boards of election inspectors and boards of canvassers:

(1) Any member of any board of election inspectors or board of canvassers who deliberately absents himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions.

(2) Any member of any board of election inspectors or board of canvassers who, without justifiable reason, refuses to sign and certify any election form required by this Code or prescribed by the Commission although he was present during the meeting of the said body.

(3) Any person who, being ineligible for appointment as member of any board of election inspectors or board of canvassers,

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accepts an appointment to said body, assumes office, and actually serves as a member thereof, or any of public officer or any person acting in his behalf who appoints such ineligible person knowing him to be ineligible.

(4) Any person who, in the presence or within the hearing of any board of election inspectors or board of canvassers during any of its meetings, conducts himself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing said body from performing its functions, either partly or totally.

(5) Any public official or person acting in his behalf who relieves any member of any board of election inspectors or board of canvassers or who changes or causes the change of the assignments of any member of said board of election inspectors or board of canvassers without authority of the Commission.

(cc) On candidacy and campaign:

(1) Any political party which holds political conventions or meetings to nominate its official candidates earlier that the period fixed in this Code.

(2) Any person who abstracts, destroys or cancels any certificate of candidacy duly filed and which has not been cancelled upon order of the Commission.

(3) Any person who misleads the board of election inspectors by submitting any false or spurious certificate of candidacy or document to the prejudice of a candidate.

(4) Any person who, being authorized to receive certificates of candidacy, receives any certificate of candidacy outside the period for filing the same and makes it appear that said certificate of candidacy was filed on time; or any person who, by means of fraud, threat, intimidation, terrorism or coercion, causes or compels the commission of said act.

(5) Any person who, by any device or means, jams, obstructs or interferes with a radio or television broadcast of any lawful political program.

(6) Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof.

(dd) Other prohibitions:

(1) Any person who sells, furnishes, offers, buys, serves or takes intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day: Provided, That hotels and other establishments duly certified by the Ministry of Tourism as tourist oriented

and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the Commission: Provided, further, That foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted from the provisions of this subparagraph.

(2) Any person who opens in any polling place or within a radius of thirty meters thereof on election day and during the counting of votes, booths or stalls of any kind for the sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes.

(3) Any person who holds on election day, fairs, cockfights, boxing, horse races, jai-alai or any other similar sports.

(4) Refusal to carry election mail matter. - Any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including government-owned or controlled postal service or its employees or deputized agents who refuse to carry official election mail matters free of charge during the election period. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of certificate of public convenience or franchise.

(5) Prohibition against discrimination in the sale of air time. - Any person who operates a radio or television station who without justifiable cause discriminates against any political party, coalition or aggroupment of parties or any candidate in the sale of air time. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of the franchise.

Section 45. Election Offenses. - The following shall be considered election offenses under this Act:

a) to deliver, hand over, entrust or give, directly or indirectly, his voter’s identification card to another in consideration of money or other benefit of promise; or take or accept such voter’s identification card, directly or indirectly, by giving or causing the giving or money or other benefit or making or causing the making of a promise therefore;

b) to fail, without cause, to post or give any of the notices or to make any of the reports re-acquired under this Act;

c) to issue or cause the issuance of a voter’s identification number or to cancel or cause the cancellation thereof in violation of the provisions of this Act; or to refuse the issuance of registered voters their voter’s identification card;

d) to accept an appointment, to assume office and to actually serve as a member of the Election Registration Board although ineligible thereto, to appoint such ineligible person knowing him to be ineligible;

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e) to interfere with, impede, abscond for purpose of gain or to prevent the installation or use of computers and devices and the processing, storage, generation, and transmission of registration data or information;

f) to gain, cause access to use, alter, destroy, or disclose any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;

g) failure to provide certified voters and deactivated voters list to candidates and heads of representatives of political parties upon written request as provided in Section 30 hereof;

h) failure to include the approved application form for registration of a qualified voter in the book of voters of a particular precinct or the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is duly, registered resulting in his failure to cast his vote during an election, plebiscite, referendum, initiative and/or recall. The presence of the form or name in the book of voters or certified list of voters in precincts other than where he is duly registered shall not be an excuse hereof;

i) the posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite, referendum, initiative and/or recall, and which list is different in contents from the certified list of voters being used by the Board of Election Inspectors; and

j) Violation of the provisions of this Act.

Section 46. Penalties. Any person found guilty of any Election offense under this Act shall be punished with imprisonment of not less than one (1) year but not more than six (6) years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be deported after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than One hundred thousand pesos (P100,000) but not more than Five hundred thousand pesos (P500,000).

B. Jurisdiction to conduct Preliminary Investigation (Section 265, BP 881 as amended by RA 9369)

Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

C. Concept of Electoral Sabotage (Section 32, COMELEC Resolution No. 8809,March 30, 2010)

 

Cases: Mappala v. Nuñez (240 SCRA 600) People v. Reyes (247 SCRA 328) COMELEC v. Noynay  (292 SCRA 254)

Corpuz v. Tanodbayan (149 SCRA 281) Kilosbayan v. COMELEC (G.R. No. 128054, Oct.

16, 1997) Naldoza v. Lavilles (254 SCRA 286)      

CASES:MAPPALA vs. NUÑEZ

CASEThis is an administrative complaint filed by Mappala against Judge Nuñez for gross inefficiency, serious misconduct and violation of the code of Judicial Ethics.

FACTS The Provincial prosecutor of Isabela filed: (1) an information

against Alejandro Angoluan for illegal possession of a firearm in violation of P.D. No. 1866; (2) an information against Angoluan and five other co-accused for frustrated murder; and (3) an information against Alejandro and Honorato Angoluan for violation of the Omnibus election code.

The complaining witness in the third information was Jacinto Mappala, the complainant against respondent in this administrative case. All the actions were consolidated and assigned to the RTC, presided by respondent.

Respondent rendered a consolidated decision in the aforementioned cases, finding Angoluan GUILTY beyond reasonable doubt of the crime of Frustrated Homicide and Illegal Possession of Firearms, but NOT GUILTY for Violation of the Omnibus election Code against Alejandro Angoluan and Honorato Angoluan.

The said decision is now on appeal before the CA. Complainant alleged that while the trial of the three cases was terminated in December 1992 and the last pleading in the case, the prosecution's memorandum, was submitted on May 27, 1993, respondent rendered his decision only on December 20, 1993.

Complainant charged respondent with, among others, serious misconduct for acquitting Angoluan of violation of the Omnibus Election Code.

ISSUEWhether or not Angoluan is guilty of violation of the Omnibus Election Code. YES.

HELD Respondent justified the acquittal of Alejandro of violation of

the Election Law on the ground that "the firearm was not taken from his person within the precinct but was not taken more than 50 meters away from the precinct".

Furthermore, he claimed that what the law considered as a crime was the "carrying of firearms within (50) or 100 meters away from the precinct. The firearm was not taken from the accused within the 50 or 100 meters distance from the precinct because in truth and in fact the said firearm was surrendered by the accused two (2) days after the elections. The mistake in the distance is merely a clerical error. But be it 50 meters or 100 meters, still the accused could not be convicted under the said provision, specifically Section 261, Subsection (p) of Article XXII of the Omnibus election Code".

Respondent acquitted Alejandro Angoluan of violation of Section 261 (p) of the Omnibus Election Code. Said provision reads as follows:

Deadly weapons. — Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting,

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counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving and enforcing the law.

In his decision, respondent found that Alejandro shot complainant herein inside Precinct No. 2 located at the elementary school building during the barangay elections on March 28, 1989. Respondent also found that Alejandro was the one who surrendered the gun.

To respondent, the surrender of the weapon was an implied admission that it was the one used by Alejandro in shooting complainant. Inspite of all these findings, respondent acquitted Alejandro of illegally carrying a deadly weapon inside a precinct on the theory that the gun was not seized from him while he was the precinct. According to respondent:

. . . With respect to the other accused Alejandro Angoluan, although there is evidence to prove that he shot the complainant Jacinto Mappala, the gun which he allegedly used was surrendered by him two (2) days after the incident and he was not apprehended in possession of the gun within 100 meters radius of the precinct. This Court believes that he should not be prosecuted (sic) in violation of Article 22, Section 261, Subsection (p) of the Omnibus Election Code.

To support a conviction under Section 261(p) of the Omnibus election Code, it is not necessary that the deadly weapon should have been seized from the accused while he was in the precinct or within a radius of 100 meters therefrom. It is enough that the accused carried the deadly weapon "in the polling place and within a radius of one hundred meters thereof" during any of the specified days and hours. After respondent himself had found that the prosecution had established these facts, it is difficult to understand why he acquitted Alejandro of the charge of violation of Section 261(p) of the Omnibus election Code.

PEOPLE OF THE PHILIPPINES vs. HON. WILFREDO D. REYES and BUENAVENTURA C. MANIEGO

FACTS:

Buenaventura C. Maniego, Collector of Customs, Collection District II, Bureau of Customs, Manila International Container Port (MICP), issued MICP Customs Personnel Order No. 21-92 dated January 10, 1992 assigning Jovencio D. Ebio, Customs Operation Chief, MICP to the Office of the Deputy Collector of Customs for Operations as Special Assistant.  1 The actual transfer of Ebio was made on January 14, 1992.

On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a letter-complaint protesting his transfer. Ebio claimed that his new assignment violated COMELEC Resolution No. 2333 and section 261 (h) of B.P. Blg. 881, the Omnibus Election Code, which prohibit the transfer of any employee in the civil service 120 days before the May 11, 1992 synchronized national and local elections.

After a preliminary investigation, the COMELEC filed on May 6, 1995 an information with the Regional Trial Court, Branch 36, Manila charging respondent Maniego with a violation of Section 261 (h) of B. P. Blg. 881.

Before the arraignment, respondent Maniego moved to quash the information on the ground that the facts alleged do not constitute an offense. He contended that the transfer of Ebio on January 14, 1992 did not violate B.P. Blg. 881 because on that date the act was not yet punishable as an election offense. It purportedly became punishable only on January 15, 1992, the date of effectivity of COMELEC Resolution No. 2333 implementing Section 261 (h) of B.P. Blg. 881. Petitioner, through the COMELEC, opposed the motion to quash.

The trial court granted private respondent's motion to quash and dismissed Criminal Case. Petitioner elevated the case for certiorari.

ISSUE:

Whether or not the quashal of the information is valid causing the dismissal of the criminal case?

RULING:

Yes.The basic law supposed to have been violated by respondent Maniego is Section 261 (h) of B.P. Blg. 881 states that ” Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers,within the election period except upon prior approval of the Commission” shall be guilty of any election offense.

The Constitution has fixed the election period for all elections to commence ninety (90) days before the day of election and end thirty (30) days thereafter, unless otherwise fixed in special cases by the COMELEC. 5 For the May 11, 1992 synchronized national and local elections, the COMELEC fixed a longer election period of one hundred twenty (120) days before the scheduled elections and thirty (30) days thereafter. It designated January 12, 1992 to June 10, 1992 as the election period.It is undeniable that the transfer of complainant Ebio on January 14, 1992 was made during the election period.

However, this transfer does not ipso facto make respondent Maniego liable for an election offense under Section 261 (h) of B.P. Blg. 881. This section does not per se outlaw the transfer of a government officer or employee during the election period. To be sure, the transfer or detail of a public officer or employee is a prerogative of the appointing authority. Without this inherent prerogative, the appointing authority may not be able to cope with emergencies to the detriment of public service. Clearly then, the transfer or detail of government officer or employee will not be penalized by Section 261 (h) of B.P. Blg. 881 if done to promote efficiency in the government service.

Section 2 of Resolution No. 2333 provides that "Any request for authority to make or cause any transfer or detail of any officer or employee in the civil service, including public school teachers, shall be submitted in writing to the Commission indicating therein the office and place to which the officer or employee is proposed to be transferred or detailed, and stating the reason therefor. Two (2) elements must be established to prove a violation of Section 261 (h) of B.P. Blg. 881, viz: (1) The fact of transfer or detail of a public officer or employee within the election period as fixed by the COMELEC, and (2) the transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations.In the instant case respondent Maniego transferred Ebio, then the Customs Operation Chief, MICP to the Office of the Deputy Collector of Customs for Operations as Special Assistant on January 14, 1992. On this date, January 14, 1992, the election period for the May 11, 1992 synchronized elections had already been fixed to commence January 12, 1992 until June 10, 1992. Nonetheless, it was only in Resolution No. 2333 which took effect

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on January 15, 1992 that COMELEC promulgated the necessary rules on how to get its approval on the transfer or detail of public officers or employees during the election period. Before the effectivity of these rules, it cannot be said that Section 261 (h) of B.P. Blg. 881 is enforceable.

COMELEC vs. HON. TOMAS B. NOYNAY, 254 Phil., 292 SCRA, July 9, 1998

FACTS: COMELEC filed an information for the violation of Section

261(i) of the Omnibus Election Code against Diosdada Amor, a public school principal, and Esbel Chua and Ruben Magluyoan, both public school teachers, for having engaged in partisan political activities.

Respondent Judge Tomas B. Noynay, as presiding judge of Branch 23 where the case was filed, ordered the records of the cases to be withdrawn and directed the COMELEC to file the cases with the MTC. He reasons that this is pursuant to Section 32 of B.P. Blg. 129 as amended by R.A. No. 7691: that the RTC has no jurisdiction over the cases since the maximum imposable penalty in each of the cases does not exceed six years of imprisonment.

So since the election offense in question is punishable with imprisonment of not more than 6 years, MTC should have jurisdiction. Thus, petitioner COMELEC filed this special civil action certiorari with mandamus, saying the judge "has erroneously misconstrued the provisions of Rep. Act No. 7691”.

ISSUE: Whether R.A. No. 7691 1 has divested Regional Trial Courts of jurisdiction over election offenses, which are punishable with imprisonment of not exceeding six (6) years. NO

RATIO: Upon closer reading of Section 32 of B.P. Blg. 129 as

amended by Section 2 of R.A. No. 7691, it would then be obvious that respondent judge did not read at all the opening sentence:Sec. 32. Jurisdiction of Metropolitan Trial Court, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. — Except in cases falling within the exclusive original jurisdiction of Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: …

Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election offenses also fall within the exception.

Jurisdiction is conferred by the Constitution or by Congress. Congress has the plenary power to define, prescribe, and apportion the jurisdiction of various courts. Congress may thus provide by law that a certain class of cases should be exclusively heard and determined by one court. Such law would be a special law and must be construed as an exception to the general law on jurisdiction of courts, namely, the Judiciary Act of 1948, as amended, and the Judiciary Reorganization Act of 1980.

R.A. No. 7691 is not a special law on jurisdiction; it is merely an amendatory law intended to amend specific sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does not have the effect of repealing laws vesting upon Regional Trial Courts or the Sandiganbayan exclusive original jurisdiction.

The instant petition is GRANTED. The challenged orders of public respondent are SET ASIDE and he is DIRECTED to try and decide said cases with purposeful dispatch and, further, ADMONISHED to be faithfully studious of the principles of law.

Notes: Full amended provision in question:Sec. 31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg. 129 as Amended by Rep. Act. 6691 [sic] (Expanded Jurisdiction) states: Sec. 32. Jurisdiction — Metropolitan Trial Courts, Municipal Circuit Trial Courts, Municipal Trial Courts in Criminal Cases — Except [in] cases falling within the exclusive original jurisdiction of the Regional Trial Courts and the Sandiganbayan, the Municipal Trial Courts, Metropolitan Trial Courts and the Municipal Circuit Trial Courts shall exercise:(1) Exclusive original jurisdiction over all violations of city or municipal ordinance committed within their respective territorial jurisdiction; and(2) Exclusive original jurisdiction over all offenses punishable with an imprisonment of not exceeding six (6) years irrespective of the amount or fine and regardless of other imposable accessory and other penalties including the civil liability arising from such offenses or predicated thereon, irrespective of time [sic], nature, value and amount thereof, Provided, However, that in offenses including damages to property through criminal negligence, they shall have exclusive original jurisdiction thereof.

NATIVIDAD CORPUS, AURORA FONBUENA, JOSIE PERALTA, CRESENCIA PADUA, DOMINADOR BAUTISTA,

LEOLA NEOG, EPIFANIO CASTILLEJOS AND EDGAR CASTILLEJOS, petitioners,

vs.TANODBAYAN OF THE PHILIPPINES, FISCAL JUAN L.

VILLANUEVA, JR., AND ESTEBAN MANGASER, respondents

Facts:Petitioners Natividad Corpuz, Aurora Fonbuena, Josie

Peralta, Cresencia Padua, Dominador Bautista and Leola Neog were members of the Citizens Election Committee of Caba, La Union in the January 30, 1980 elections; petitioner Epifanio Castillejos was Director of the Bureau of Domestic Trade and petitioner Edgar Castillejos was then a candidate and later elected mayor in the same election. Private respondent Esteban Mangaser, an independent candidate for vice. mayor of the same municipality sent a letter to President Ferdinand E. Marcos charging the petitioners with violation of the 1978 Election Code, specifically for electioneering and/or campaigning inside the voting centers during the election. On instruction from the Commission on Elections (COMELEC) the Regional Election Director of San Fernando, La Union, conducted a formal investigation and on September 29, 1981 submitted its report recommending to the COMELEC the dismissal of the complaint. On October 29, 1981, private respondent Mangaser formally withdrew his charges filed with the COMELEC stating his intention to refile it with the Tanodbayan. On November 26, 1981 the COMELEC dismissed the complaint for insufficiency of evidence.

Subsequently the assistant provincial fiscal started a preliminary investigation of a complaint filed by Mangaser with the Tanodbayan against the same parties and on the same charges previously dismissed by the COMELEC. The COMELEC Legal Assistance Office entered its appearance for the respondents (except Director Epifanio Castillejos and Edgar Castillejos) and moved for dismissal of the complaint. The motion was denied. The TANODBAYAN asserting exclusive authority to prosecute the case, stated in a letter to the COMELEC Chairman that a lawyer of the COMELEC if not properly deputized as a Tanodbayan prosecutor has no authority to conduct preliminary investigations and prosecute offenses committed by COMELEC officials in relation to their office. A motion for reconsideration was denied. Hence, the present petition for certiorari and preliminary injunction.

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Issue:Who has jurisdiction over offenses committed by public

officials?

Held:An examination of the provisions of the Constitution and

the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections.

KILOSBAYAN   vs. COMELEC

FACTS:

Special Provision No. 1 of the Countrywide Development Fund (CDF) under Republic Act No. 7180, otherwise known as the “General Appropriations Act (GAA) of 1992” allocates a specific amount of government funds for infrastructure and other priority projects and activities. The Secretary of Interior and Local Government, requested for authority to negotiate, enter into and sign Memoranda of Agreements with accredited Non-Governmental Organizations (NGOs) in order to utilize them to projects of the CDF provided for under R.A. No. 7180. On April 24, 1992 Regional Director of the DILG-NCR, entered in the Memorandum of Agreement with an accredited NGO known as “Philippine Youth Health and Sports Development Foundation, Inc.” (PYHSDFI). PYHSDFI will receive the amount of 70 million pesos for complete implementation of the foundation’s sports, health and cultural work program. The amount was issued in checks on May 5 and 6, 1992. Election was set on May 11, 1992. On 1993 Kilosbayan sent a letter to the COMELEC informing it of the violation of election offenses committed in the said transaction and “request[ing] that x x x these offenses and malpractices be investigated promptly, thoroughly, impartially, without fear or favor, so that public confidence in the integrity and purity of the electoral process may be immediately restored for the sake of our newly-regained democracy. The evidence proffered by Kilosbayan in support of its letter-complaint consisted of the published writings of Teodoro Benigno[18] in his column in the Philippine Star newspaper imputing to the so-called Sulo Hotel Operation (SHO) headed by PYHSDFI’s chairman, the commission of illegal election activities during the May11, 1992 elections. The law allegedly violated is Section 261 (o), (v) and (w) of the Omnibus Election Code.  (Use of public funds, money deposited trust, x x x, for an election campaign; Prohibition against release, disbursement or expenditure of public funds for any and all kinds of public works; and Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices). The Law Department of COMELEC investigated it, and recommended its dismissal for lack of probable cause and the only evidence Kilosbayan gave are the articles written by one writer and without further evidence to substantiate its claims. Petitioner Kilosbayan, however brushed off responsibility for adducing evidence of herein respondents’ culpability, and adamantly demanded that the Comelec perform its constitutional duty of prosecuting election offenses upon any, even meager, information of alleged commission of election offenses.

ISSUE:

Whether or not COMELEC acted with grave abuse of discretion on dismissing Kilosbayan complaint

HELD:

NO. The Comelec did not commit any act constituting grave abuse of discretion in dismissing petitioner Kilosbayan’s letter-complaint against herein respondents, the former having failed to prove its case against the latter.  As such, this petition must be dismissed.

The Comelec, whenever any election offense charge is filed before it, must have first, before dismissing the same or filing the corresponding information, conducted the preliminary investigation proper of the case.  It follows, therefore, that in the instant case, petitioner Kilosbayan must have necessarily tendered evidence, independent of and in support of the allegations in its letter-complaint, of such quality as to engender belief in an ordinarily prudent and cautious man that the offense charged therein has been committed by herein respondents. This constitutional and statutory mandate for Comelec to investigate and prosecute cases of violation of election law translates, in effect, to the exclusive power to conduct preliminary investigations in cases involving election offenses for the twin purpose of filing an information in court and helping the Judge determine, in the course of preliminary inquiry, whether or not a warrant of arrest should be issued.

ALBERTO NALDOZA VS.   JUDGE JUAN LAVILLES, JR.,

FACTS:

Naldoza was the barangay chairman in Miagao, Iloilo. He ran for re-election and was accused of vote buying in violation of Omnibus Election Code (BP881) in winning the election. Accordingly, the Chief of Police with whom the charge was lodged filed two complaints against Naldoza and both cases were assigned to respondent judge. Respondent issued an order finding probable cause to believe that Naldoza commited the crime charged, and thereupon issued the warrants for Naldoza’s arrest. Naldoza was arrested and detained. Naldoza filed a complaint on Commision on Human Rights against respondent Lavilles, presiding judge of MTC, with irregularity in conducting preliminary investigation, improper issuance of the warrant of arrest and ignorance of the law relative to criminal cases filed against him. Respondent issued another order, reconsidering his other order insofar as it referred the cases to the COMELEC.  The cases were instead remanded to the Chief of Police of Miagao, Iloilo with instructions to file the same directly with the provincial prosecutor.  The warrants of arrest were lifted and Naldoza’s release was ordered.CHR in its resolution recommended that an administrative complaint be filed against respondent. Refuting the charge that serious irregularities were committed in the conduct of the preliminary investigation for non-compliance with Section 3, Rule 112 of the Rules of Court, respondent explained that the offense of vote-buying is punishable by a penalty of imprisonment of not less than 1 year but not more than 6 years (Sec. 264, Omnibus Election Code), but pursuant to Republic Act No. 7691 the jurisdiction of municipal trial courts was expanded, such that the said offense is now within the exclusive jurisdiction of said courts. Consequently, respondent argued, Section 3, Rule 112 is no longer applicable. As to the charge of ignorance of the law for failure to comply with Section 4 of COMELEC Resolution No. 2695 (authorizing chiefs of police to conduct the preliminary investigation of charges for

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violation of the Omnibus Election Code) respondent averred that the complaint which commenced Criminal Cases Nos. 1726 and 1727 was filed on May 10, 1994, barely 45 days after the passage of the aforementioned COMELEC Resolution.  It would hardly be fair, respondent continued, to expect him to be immediately aware of the existence of COMELEC Resolution No. 2695.

Issue(1): Who has the jurisdiction to hear Election Cases.

Held: RTC. a review of the pertinent provisions of law would show that pursuant to Sections 265 and 267 of the Omnibus Election Code the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the Code; and the regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the same.  The metropolitan or municipal trial court, by way of exception exercises jurisdiction only on offenses relating to failure to register or to vote.  Noting that these provisions stands together with the provision that any election offense under the Code shall be punishable with imprisonment for one (1) year to six (6) years and shall not be subject to probation (Section 264, Omnibus Election Code), we submit that it is the special intention of the Code to vest upon the regional trial court jurisdiction over election cases as matter of exception to the general provisions on jurisdiction over criminal cases found under BP Big. 129, as amended. Consequently, the amendment of BP Blg. 129 by Republic Act No. 7691 does not vest upon the MTC jurisdiction over criminal election offenses despite its expanded jurisdiction.

Issue(2):

Whether or not there is ignorance of the law for failure to comply with Section 4 of Comelec resolution No. 2695, authorizing chiefs of police to conduct the preliminary investigation of charges for violation of the Omnibus Election Code.

Held: Yes. A judge owes it to the public and to the legal profession to know the factual basis of the complaint and the very law he is supposed to apply to a given controversy.  He is called upon to exhibit more than cursory acquaintance with the statutes and procedural rules. A member of the bench must continuously keep himself abreast of legal and jurisprudential developments because the learning process in law never ceases. Considering, that there was no malice or evil intent in respondent’s actuations in conducting the preliminary investigation and in ordering the issuance of the warrants of arrest against complainant, a fine of P5,000.00 is deemed proper under the circumstances.

Prepared by: Kren Lianko ♥

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