Election Law: 1st

ELECTION LAW Under: Judge Palamos SUFFRAGE: right to vote in the election of officers chosen by the people in the determination of questions submitted to the people. Includes: election, plebiscite, initiative and referendum AS A RIGHT: expression of the sovereign will of the people AS A PRIVILEGE: not granted to everybody but to such persons as are most likely to exercise it for the purpose of the public good. (SUBJ: substantive and procedural requirements) RIGHT TO VOTE is different from the right to register. A person may register before he is 18 years old, but he must be at least 18 years old on the day of election. 1. When what is involved in the case is purely administrative, and not quasi-judicial in nature; 2. When the required number of votes to reach a decision, resolution, order or ruling is not obtained in the division. 3. Where the petitioner invoked the jurisdiction of the COMELEC en banc, participated in its proceedings and sought relief therefrom, in which instance he is estopped to subsequently question the jurisdiction of the COMELEC en banc 4. Petitions for the postponement, declaration of failure of election and the calling of special elections; and 5. The COMELEC en banc has the power to prosecute election cases, and in the exercise of such prosecutory power, it conducts preliminary investigation, decides whether or not there exists a probable cause and files the corresponding information in court

ELECTION: means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of the government a. REGULAR one provided by law for the election of officers either nationwide or in certain subdivisions; AFTER the full term of the former officers b. SPECIAL one held to FILL a vacancy in office BEFORE the expiration of the full term for which the incumbent was elected. THEORIES ON SUFFRAGE 1. Natural right natural and inherent not disqualified 2. Social expediency public function conferred upon citizen 3. Tribal - attribute as a member of the State 4. Feudal vested privilege 5. Ethical necessary and essential means for the development of society PHILIPPINES: privilege and obligation Australian system (strict secrecy in balloting) CONSTITUTIONAL MANDATE ON CONGRESS 1. Provide: secrecy and sanctity of the ballot and for absentee voting by QUALIFIED Filipinos abroad 2. Provide: for absentee voting 3. Overseas Absentee Voting Act 4. To design a procedure for the disabled and the illiterate to vote without the assistance of other persons ELECTION PERIOD: Unless otherwise fixed by the COMELEC in special cases, election period: 90 days before the DAY of election and shall end 30 days THEREAFTER. COMELEC Jurisdiction General Rule: The COMELEC sitting en banc does NOT have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void. Exceptions: MMCN

Composition: (a) chairman (b) 6 commissioners Qualifications: (a) Natural born citizens (b) Time of appointment at least 35 years of age (c) Holders of a college degree (d) Not candidates for any elective position in the immediately preceding election (e) Majority + Chairman members of PH Bar: engaged in practice of law for at least 10 years.

Appointment: (a) Chairman: appointed by President with consent of COA 7 YEARS without reappointment (b) 3 members: 7 years (c) 2 members: 5 years (d) 1 member 3 years Absence: absence of chairman President cannot appoint from the members; this would become the discretion of the COMMISSION; not exercised by the President Powers and Functions: 1. Enforcement and Administration of Election Laws and Regulations 2. Power to ensure free, honest, orderly credible and peaceful elections. 3. Rule Making Power 4. Quasi-Legislative Functions 5. Quasi-Judicial Power 6. Contempt and Subpoena 7. Auxiliary writs and processes 8. Specific Powers: a. Power to declare failure of elections Two conditions must concur before the COMELEC can act on a petition seeking 1

Election Law: 1st

to declare a failure of elections: No voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in failure to elect; and ii. The votes not cast would have affected the result of the elections. *The cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud, or other analogous cases. Power to call for special elections - In fixing the date for special elections, the Comelec should see to it that: i. It should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect; and ii. It should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. Power to postpone election. Power to correct manifest errors in election documents - With the introduction of the PCOS System pursuant to R.A. 9369, every copy should be as good and as clear as the first one. Hence, the problem of manifest errors might be a thing in the past. Power to order recanvass of votes Power to annul or suspend proclamation of elected candidates Power to annul an illegal canvass Power to transfer polling places Power to Transfer Venue of Canvassing of Votes Power to order opening of ballot boxes Power to conduct initiative and plebiscite i. inclusion or exclusion of voters belongs to the Municipal Trial Court. VOTERS: Qualifications for suffrage: exercised by ALL citizens of the PH not otherwise disqualified by law. a. Resident of PH for at least 1 year b. At least 18 years of age c. Resided in the place wherein they propose to vote for at least 6 months immediately preceding the election NOTE: No (a) illiteracy (b) property or (c) other substantive requirements shall be imposed on the exercise of suffrage. If he transfers residence due to his occupation or employment NOT DEEMED to have lost his original residence

b.

c. d.

e. f. g. h. i. j. k.

Disqualifications: a. ANY PERSON sentenced by final judgment to suffer IMPRISONMENT not less than one year (unless granted a plenary pardon or an amnesty) i. Right is acquired upon the expiration of 5 years after service of sentence b. ANY PERSON adjudged by final judgment of having been COMMITTED any crime involving DISLOYALTY to the government OR any crime against NATIONAL SECURITY (unless restored to full civil and political rights in accordance with law) i. Right is acquired upon the expiration of 5 years after service of sentence c. Insane or incompetent persons as declared by authority NOTE: These qualifications are continuing requirements. CONGRESS may NOT add qualifications but can provide for procedural requirements and disqualifications. i. Disqualifications MUST NOT amount to qualifications Residence ones domicile or legal residence Where a party actually or constructively has his permanent home, or where he, no matter where he may be found, eventually intends to return and remain. RESIDENCY REQUIREMENT: a. DOMICILE reference to the 1-year period in the PH i. Physical presence in the country ii. Intention to remain iii. Intention to abandon the old domicile iv. Must be voluntary, must concur b. TEMPORARY RESIDENCE reference to the 6-month residency in the place where he wants to vote. i. Residency can either mean domicile or temporary residence TO EFFECT A TRANSFER OF DOMICILE: Demonstrate: a. An actual or removal or change of domicile b. Bona fide intention of abandoning the former place of residence and establishing a new one c. Acts which correspond with that purpose 2 a. b.

Other Specific Powers: a. b. c. Deputization of Peace Officers Investigatory and Prosecutorial Power Deputization of or Endorsement to Prosecutors

Power of exclusive control and supervision over the Automated Election System: Stand-by Power of COMELEC: If it shall no longer be reasonably possible to observe the periods and dates prescribed by law for certain pre-election acts, the Commission shall fix other periods and dates in order to ensure accomplishment of the activities so voters shall not be deprived of their suffrage. This stand-by power, however, does not apply to fixing the date of registration of votes because Sec. 8 of R.A. 8189, which provides for a continuing registration of voters, specifically states that: No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. Powers NOT Granted to the COMELEC: 1. No power to decide questions involving the right to vote 2. No power to include and exclude voters MMCN Currently, jurisdiction to decide controversies on

Election Law: 1st

Failure to undertake affidavit ANIMUS MANENDI coupled with ANIMUS NON REVERTENDI o Intention of remaining and returning Failure to undertake affidavit yet voted Failure to resume residency Failure to resume residency yet voted Removal of name from the list and permanent disqualification Imprisonment of not less than 1 year Removal of name form list Imprisonment of not less than 1 year DUAL CITIZENSHIP LAW former natural-citizens who acquired foreign citizenship through NATURALIZATION are deemed not to have lost their PHILIPPINE citizenship under conditions provided in this act. DERIVATIVE CITIZENSHIP unmarried child, under 18, whether legit or illegit, who re-acquire PH citizenship under Dual Citizenship Law shall be deemed citizens of PH. REQUIREMENT FOR NATURALIZED CITIZENS: a. TO VOTE swear an oath of allegiance b. TO BE ELECTED TO PUBLIC OFFICE renounce foreign citizenship c. TO BE APPOINTED swear an oath of allegiance to the AND renounce foreign citizenship OVERSEAS ABSENTEE VOTING ACT (RA 9189) ensures equal opportunity to all qualified citizens of the PH abroad to exercise their right to vote in the NATIONAL ELECTIONS 1. DOMESTIC ABSENTEE VOTING public officials stationed in places other than the place where he is a registered voter are ALLOWED to vote in the place of their work (police officers, military personnel, school teachers) 2. OVERSEAS ABSENTEE VOTING QUALIFIED Filipinos abroad may be allowed to vote under a system congress will provide. QUALIFICATIONS: a. Fil Citizen b. At least 18 c. Free from disqualifications d. Must file an affidavit: a. Intention to resume actual, physical, permanent residence within 3 years from approval of registration b. Has not applied for citizenship in another country e. Registered overseas absentee voters f. Has an approved application to vote in absentia *Actual residency is dispensed with. DISQUALIFICATIONS: a. Sentenced by Final judgment to suffer imprisonment not less than 1 year b. Adjudged by final judgment by a competent court of having committed any crime involving DISLOYALTY to the duly constituted govt (rebellion, etc) i. FOR 1 & 2: may be removed by plenary pardon or amnesty ii. Reacquire after the expiration of 5 years after service of sentence c. Insane or incompetent persons as declared by competent authority d. LOST FIL citizenship e. Expressly renounced PH citizenship and who have pledged allegiance to a foreign country f. An immigrant or permanent resident UNLESS he executes an affidavit: a. Intention to resume actual, physical, permanent residence within 3 years from approval of registration b. Not applied fir citizenship in another country. ACT MMCN EFFECT 2.

TO WHOM ABSENTEE VOTING APPLIES 1. Persons who have the QUALIFICATIONS of a voter BUT who happen to be temporarily abroad 2. QUALIFIED voters who are in the Philippines but are temporarily absent from their voting places REGISTRATION OF VOTERS: Registration refers to the act of accomplishing and filing of a sworn application for the 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. Registration does not confer the right to vote; its just a condition precedent to the exercise of the right. NEW SYSTEM OF REGISTRATION: continuing registration of voters WHEREBY application for registration of voters shall be conducted daily in the office of the ELECTION OFFICER during regular office hours and all applications for registration shall be heard and processed on a QUARTERLY BASIS by the ERB. It shall be the duty of every citizen to register and cast his vote. In order that a QUALIFIED elector may vote in election, plebiscite or referendum, he must be registered in the PERMANENT LIST OF VOTERS for the city or municipality in which he resides. 1. Registration DOES NOT confer the right to vote; it is but a CONDITION precedent to the exercise of the right. Registration is a REGULATION, not a qualification. ii. YRA CASE GENERAL REGISTRATION OF VOTERS SYSTEM OF CONTINUING REGISTRATION a. Personal filing of application of registration of voters shall be CONDUCTED daily in the office of the election officer during regular office hours. b. NO REGISTRATION shall, however be conducted during the period STARTING 120 days before a regular election and 90 days before a special election. i. AKBAYAN CASE: SC upheld the action of the COMELEC denying the petitioners request for two additional registration days in order to enfranchise more than 4 million youth between the ages 18-21. DISQUALIFICATION same grounds 3

3. 4.

5.

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6. ILITERATE or DISABLED may register with the ASSISTANCE of the election officer OR any member of an ACCREDITED citizens arms. a. May be prepared by any relative within the fourth civil degree of consanguinity OR affinity OR election officer OR any member of an accredited citizens arms USING THE DATA SUPPLIED BY THE APPLICANT. ELECTION REGISTRATION BOARD there shall be in EACH CITY and MUNICIPALITY as many election registration boards as there are election officers therein. a. BOARD COMPOSED OF: (a) election officer as chairman and (b) members, the public school official most senior in rank and the local civil registrar or treasurer. b. NO MEMBER: shall be related to each other to any incumbent city or municipal elective official within the 4th civil degree of consanguinity or affinity. c. WATCHER IN EVERY REGISTRATION BOARD: registered party or organizations as may be authorized by the Commission. CHALLENGES TO RIGHT TO REGISTER: a. Voter b. Candidate c. Representative Of a registered political party may CHALLENGE in writing any application for registration stating the GROUNDS therefor. shall be under oath attached to the application + proof of notice of hearing to the challenger and the applicant FILED: not later than the 2nd Monday of the month in which the same is scheduled to be heard or processed by the Election Registration Board. HEARING: 3rd Monday of the month DECISION: rendered before the end of the Month. 9. ALTERATION OF BOOK OF VOTERS: a. Deactivation b. Exclusion/Inclusion c. Cancellation of registration in case of death d. Annulment of book of voters e. New voters f. Transfer of residence DISLOYALTY to the govt (such as: rebellion, sedition, violation of the anti-subversion and firearms laws, crimes against national security) i. UNLESS: restored to his full civil and political rights in accordance with law ii. PROVIDED: regain to vote automatically upon expiration of 5 years from service of sentence. Any person declared by competent authority to be insane or incompetent i. UNLESS: proper authority declared that such person is no longer insane or incompetent Any person who DID NOT VOTE in the 2 SUCCESSIVE preceding regular elections as shown by their VOTING RECORDS (Sangguniang Kabataan election NOT INCLUDED) Any person whose REGISTRATION has been ordered EXCLUDED by the court Any person who has LOST his Filipino citizenship.

c.

7.

d.

e. f.

8.

POST APPROVAL REMEDIES: i. Petition for inclusion ii. Annulment of book of voters iii. Petition for exclusion 11. REACTIVATION OF REGISTER Any voter whose registration has been DEACTIVATED may file with ELECTION OFFICER a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for deactivation NO LONGER exist any time i. BUT NOT LATER than 120 days before a regular election and 90 days before a special election. ii. Election officer shall SUBMIT such application to the Election Registration Board for appropriate action. 12. PREPARATION AND POSTING OF THE CERTIFIED LIST OF VOTERS a. The BOARD shall prepare and post a certified list of voters 90 days before a regular election and 60 days BEFORE a special election & furnish copies thereof to the PROVINCIAL, REGIONAL & NATIONAL central files. b. Copies of the certified list, along with a list of deactivated voters CATEGORIZED by precinct per barangay shall also be posted in the office of the ELECTION OFFICER and in the bulletin board of each city/municipal hall. INCLUSION & EXCLUSION PROCEEDINGS PETITION FOR INCLUSION: o Any person o Whose application for registration has been disapproved by the Board or whose name has been stricken out from the list o MAY FILE with the court a petition to INCLUDE his name in the PERMANENT LIST OF VOTERS in his precinct o At ANY TIME except 105 days PRIOR to a regular election OR 75 days PRIOR to a special election. o It shall be SUPPORTED by a certificate of DISAPPROVAL or HIS APPLICATION and proof of service of notice of his petition upon the Board. o The petition shall be DECIDED within 15 after its filing. PETITION FOR EXCLUSION 4

10. DEACTIVATION OF REGISTRATION BOARD shall deactivate the registration and remove the registration records of the following persons: [inactive file after entering the cause/s of deactivation] a. Any person who has been sentence by final judgment to suffer imprisonment for NOT LESS THAN 1 year (not having been removed by plenary pardon or amnesty) i. Provided: any person disqualified to vote shall automatically reacquire the right to vote upon expiration of five years after service of sentence as certified by the clerks of courts. b. Any person who has been ADJUDGED by final judgment by a competent court or tribunal of having caused any crime involving MMCN

Election Law: 1st

o o o o o o o Any registered voter, representative of a political party or Election Officer May file with the court A sworn petition for the exclusion of a voter from the permanent list of voters Giving the NAME, ADDRESS & PERCINCT of the challenged voter At ANY TIME except 100 days PRIOR to a regular election OR 65 days PRIOR to a special election The petition shall be ACCOMPANIED by proof of notice to the BOARD and to the CHALLENGED VOTER And shall be decided WITHIN 10 days from its filing. ANNULMENT OF BOOK OF VOTERS Commission Upon verified petition of any voter or election officer or duly registered political party And AFTER notice and hearing ANNUL ANY BOOK OF VOTERS that is not prepared in accordance with the provisions of this law OR was prepared through fraud, bribery, forgery, impersonation, intimidation. Force or any similar irregularity, OR which contains data that are statistically improbable. NO ORDER, RULING or DECISION annulling a book of voters shall be executed within 90 days BEFORE an election. Not a ground for a pre-proclamation contest. GROUNDS FOR ANNULMET OF BOOK OF VOTERS: [FIBS] Not prepared in accordance with law. Prepared THROUGH: a. fraud b. forgery c. force d. intimidation e. impersonation f. bribery g. similar irregularity h. contains data that are statistically improbable CANDIDATES CANDIDATE: - A person aspiring for or seeking an elective public office who has filed by himself or through an accredited political party a certificate of candidacy at the start of the campaign period. There is NO CONSITUTIONAL right to run for or hold public office WHAT IS RECOGNIZED: privilege subject to limitations imposed by law. Not intertwined with the rights of expression and association Not entitled to constitutional protection CONGRESS: may not add to the qualifications for elective officials provided in the CONSTITUTION o It may do so for elective officials NOT PROVIDED in the Constitution BAN: (local officials only) Official has been elected for 3 consecutive terms in the same LOCAL GOVT post Fully served 3 consecutive terms Elected in a regular election

1.

RULES: a. Petition for inclusion, exclusion or correction of names of voters shall be FILED during office hours. b. NOTICE of the place, date & time of the hearing of the petition shall be served upon the members of the CHALLENGED voter upon filing of the petition. c. Petition ONLY ONE precinct and IMPLEADED the board as respondents d. NO COST assessed against any party in these proceedings. i. IF COURT: finds that the application has been FILED solely to harass the adverse party and cause him to incur expenses SHALL ORDER the culpable party to pay the costs and incidental expenses. e. ANY VOTER, CANDIDATE or POLITICAL PARTY affected by the proceedings may intervene and present his evidence. f. DECISION based on the evidence presented and in no case rendered upon a stipulation of facts. i. IF: WON 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. g. PETITION heard and decided within 10 DAYS from the date of its filing. i. CASES appealed to the RTC shall be decided within 10 days from receipt of its appeal. ii. COURTS decide these petitions NOT LATER THAN 15 days before the election and iii. The decision shall become FINAL and EXECUTORY. JURISDICTION IN EXCLUSION/EXCLUSION CASES a. MTC original, respective municipalities b. May be appealed to RTC within 5 days from receipt c. RTC decide within 10 days d. Decision of RTC final and executor. e. NO motion for reconsideration shall be entertained. INCLUSION CASES May be filed ANY TIME except 105 days before regular elections Or 75 days before special elections Grounds: 1. Application for registration has been disapproved by the board 2. Name has been stricken out EXCLUSION CASES May be filed ANYT IME except 100 days before regular elections Or 65 days before special elections Grounds: 1. Not qualified or possessing disqualification 2. Flying voters 3. Ghost voters Requires a sworn petition

2.

3-TERM a. b. c.

SERVICE OF FULL TERM: 1. When municipality has been converted to a city and area on inhabitants of the locality are the same and 3-term mayor continued to hold office until such time as city election are held. 2. Where incumbent MAYOR loses in election protest BUT the decision of the RTC was promulgated after the service of the term NOT SERVICE OF FULL TERM: 1. Fills up a higher office (succession or operation of law) 2. Suspended form office (failed to serve full term) 5

MMCN

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3. 4. 5. Unseated in order to vacate by reason of declaration of failure of election or an election protest Served unexpired term after winning the recall elections Assuming local govt post (even if served for 3 consecutive terms) after winning a recall election (since not considered an immediate re-election) b. c. d. SG panglungsod 21 mayor or vicemayor of ICC, CC or municipalities 18 SG panglungsod, SG bayan pr punong brgy 15-18 - SK

HOLD OVER PRINCIPLE term of local officials is 3 years BUT SEC 5 RA 9164 authorizes the hold0over of incumbent brgy officials UNTIL their successors are elected. GR: PH elective officials elected by plurality of vote. EXCEPTION: party-list representatives are elected through proportional representation. Qualifications: CONTINUING REQUIREMENTS and must be possessed for the duration of the officers active tenure. Once any of the required qualifications is LOST, his title to the office may be seasonable challenged.

WHEN QUALIFICATIONS BE POSSESSED: LGC does not specify any particular date (Fil Citizenship) PH CITIZENSHIP: ensure that no alien shall govern our people Official begins to govern only upon his PROCLAMATION and on the day that his term begins. Repatriation retroacts to the date of filing Qualifications: PRESIDENT/VP 1. natural born citizen 2. registered voter 3. able to read and write 4. at least 40 years old on the day of the election 5. resident of the Philippines for at least 10 YEARS immediately rpeceding the day of the election SENATORS 1. natural born citizen 2. at least 35 on the day of election 3. Registered voter 4. Resident of PH for not less than 2 years immediately preceding the day of election District Reps 1. natural born citizen 2. at least 25 on the day of election 3. able to read and write 4. registered voter in the fistrict which he shall be elected 5. resident in the same district for a period of NOT LESS THAN 1 YEAR immediately preceding the day of election

Disqualifications: I. [4] OMNIBUS ELECTION CODE BP881: a. Declared incompetent or insane by competent authority b. Sentenced by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than 18 months imprisonment. c. Sentenced by final judgment for a crime involving moral turpitude. i. BP 22 crime involving morel turpitude (conviction: guilty of deceit and relates to and affects the good moral character of the person) ii. Violation of the Anti-fencing law involves moral turpitude d. Any person who is a permanent resident of or an immigrant to a foreign country (UNLESS: HE HAS WAIVED HIS STATUS) green card is an ample proof II. [7] LGC (RA 7160) FOR LOCAL ELECTIVE OFFICE ONLY a. Those sentenced by final judgment for an offense punishable by one year or more of imprisonment, within 2 years after serving sentence. i. IF: Under probation still a disqualification; its only for the suspension of sentence. b. Those removed from office as a result of an administrative case i. IF: removed from office BEFORE the effectivity of LGC Jan 1, 1992 NOT DISQUALIFIED. LGC cannot be given retroactive effect. ii. Mayor who was removed from office by the Sanggunian Panlalawigan c. Those convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines d. Those with dual citizenship i. Dual citizenship v. Dual allegiance only disqualified when a person is under a conflict of laws of different countries ii. IF: has a dual citizenship it is enough that they ELECT PH CITIZENSHIP upon the filing of their certificate of candidacy to terminate their status as persons with dual citizenship. RENOUNCE FOREIGN CITIZENSHIP. (Declare under oath that one will maintain true faith and allegiance to the Constitution) iii. One who lost his citizenship and thereafter reacquires it by taking oath of allegiance HE MUST PERSONALLY swear to an oath renouncing foreign citizenship at the time of the filing of the certificate of candidacy. (Must be clear and unequivocal terms that he is renouncing all foreign citizenship) e. Fugitives from justice in criminal and non-political case here and abroad i. Fugitive from justice not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution

Governor, VG, Mayor, Punong BRGY, Sanngunian members 1. Citizen of PH 2. Registered voter in the brgy, municipality, or province, or in the case of SG panlalawigan, panglungsod or bayan the district where he intends to be elected 3. Resident at least 1 year ipe 4. Able to read and write Filipino or any other language 5. On election day, age must be: a. 23 years old G, VG, SG Panlalawigan, Mayor, VMayor, MMCN

Sectoral Reps 1. 2. 3. 4. natural born At least 25 o the days of election Able to ready and write Resident for a period of NOT LESS THAN 1 YEA immediately preceding the day of election Bona fide member of the sector he seeks to represent

6.

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f. g. III. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail the same right after the effectivity of the LGC. Those who are insane or feebleminded 1. 2. Not serve for than 3 consecutive terms General disqualifications General disqualifications

Additional grounds for disqualification: (Sec 68, BP 881) After having filed a certificate of candidacy, the ff. shall be disqualified from continuing as candidate or if he has been elected, from holding the office: a. One who has given money or other material consideration to influence, include or corrupt the voters or public officials performing electoral functions b. One who committed acts of terrorism to enhance his candidacy c. One who spent in his election campaign an amount in excess of that allowed by the Code d. One who has solicited, received or made contributions under: i. Sec 89 (transportation, food and drinks) ii. Sec 95 (public or private financial institutions, public utilities or exploitation of natural resources, contractors of public works or other government contracts; franchise holders or concessionaires, educational institutions receiving grants from the govt, officials of the Civil service or the AFP, foreigners or foreign corporations) iii. Sec 96 (foreign-sourced contributions) iv. Sec 97 (raising of funds through lotteries, cockfights, boxing bouts, bingo, beauty contests, etc) v. Sec 104 (prohibited contributions to churches, school buildings roads, bridges, medical clinics, etc) e. One who has violated the provisions of: i. Sec 80 (campaign period) ii. Sec 83 (removal, destruction of lawful election propaganda) iii. Sec 85 (prohibited forms of propaganda) iv. Sec 86 (regulation of propaganda through mass media) f. Violated the provisions of Sec 261 (election offenses) [vote-buying, conspiracy to bribe voters, undue influence] President Not eligible for any reelection No person who has succeeded the President and served as such for more than 4 years shall be qualified for election to the same office at any time General disqualification VP Not serve for more than 2 consecutive terms General disqualifications Senators Not serve for more than 2 consecutive terms

CERTIFICATE OF CANDIDACY 1. Effect of filing certificate of candidacy a. Officials holding appointive offices including active members of AFP and officers of GOCC shall be considered IPSO FACTO resigned RULES IN FILING COC: 1. Cannot be elected UNLESS he files COC within the prescribed period 2. NOT ELIGIBLE: if he files more than 1 position (unless cancels or retains one) 3. COC: personally or authorized representative 4. Upon filing: candidate already covered by RULES, RESTRICTIONS, and PROCESSES involving candidates (GENERAL EFFECT) 5. Receiving officers ministerial duty to RECEIVE and ACKNOWLEDGE receipt of COC 6. COC NOT canceled: if failed to specify position sought (can be supplied) 2. Formal defects in the certificate of candidacy a. Required to be under oath, cannot be annulled on the sole ground of FORMAL DEFECTS in his certificate, such as lack of the required oath. b. Omission to indicate his precinct number and the particular brgy where he is a registered voter NOT SUFFICIENT ground to disqualify the candidate. LGC does not require these data to be indicated in the certificate. Enough that he is a registered voter. Death, Disqualification or withdrawal of candidate: IF: after the last day for the filing of certificates of candidacy, an OFFICIAL CANDIATE of a registered political party DIES, WITHDRAWSS or is DISQUALIFIED for any cause, only a person belonging to and certified by the same political party may file a certificate of candidacy for the office not later than MID-DAY OF THE DAY OF THE ELECTION. a. Luna filed vice-mayor as substitute for Hans Roger who withdrew his COC. Luna complied with the requirements for a valid substitution even if Hans was disqualified luna could validly substitute for hands GROUNDS FOR SUBSITUTION: a. Death b. Withdrawal c. Disqualification GR: No substitution is allowed for an independent candidate. Only candidates who are members of and are nominated by a party can be substituted. EXCEPTION: A candidate for a brgy elective office notwithstanding the policy that brgy elections are non-partisan can be substituted by his/her spouse. 7

1. 2.

1.

3.

2.

3.

District Representatives

Governor, VG, Mayor, Punong BRGY, Sanngunian members

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i. RULES ON SUBSTITUTION: 1. Any candidate may withdraw anytime BEFORE election day 2. A person without a valid COC cannot be considered a candidate and therefore cannot be substituted 3. Substitute candidate may FILE his COC no LATER THAN mid-day of election day 4. No person who ahs withdrawn his candidacy for a position shall be eligible as a substitute candidate for any other position. 5. SUBSTITUTE: must be qualified to hold office and must be a member of the party 6. Allows substitution and intervention but only by a REAL PARTY IN INTEREST 7. Filing of withdrawal shall NOT affect the civil, criminal, or administrative liabilities the substituted candidate may have already INCURRED. 8. VALID SUBSTITUTIONS: votes cast are considered STRAY except if the substitute candidate ahs the same surname 4. WITHDRAWAL OF COC shall effect the DISQUALIFICATION of the candidate to be elected for the position. a. THE WITHDRAWAL of the WITHDRAWAL must be made within the period provided by law for the filing of certificates of candidacy. b. Sec 73, which mandates that the affidavit of withdrawal does not provide that it should be done in the same office where the certificate of candidacy to be withdrawn was filed. CAN BE FILED DIRECTLY WITH: i. COMELEC ii. Regional election director iii. Office of the provincial election supervisor of the province iv. Office of the municipal election officer of the municipality b. 5. FILING OF TWO CERTIFICATES OF CANDIDACY a. 2 certs for DIFF offices he becomes INELIGIBLE for either position. b. He may withdraw one of his certificates by filing a SWORN DECLARATION with the Commission before the deadline of COC DUTY OF THE COMELEC Subject to its AUTHORITY over nuisance candidates and its power to DENY due course to or CANCEL a certificate of candidacy under Sec 78 BP 881, the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificates of candidate. a. Commission has no discretion to give or not to give due course to a certificate of candidacy filed in due form MAY LOOK INTO PATEN DEFECTS IN THE CERT: it may not go into matters not appearing on their face. b. COMELEC may not by itself, without proper proceedings, deny due course to or cancel a coc on the ground that any MATERIAL REPRESENTATION therein is false. (Candidate must be notified and be given the OPPORTUNITY to present evidence in his behalf) INSTANCES WHEN THE COMELEC MAY GO BEYOND THE FACE OF THE COC: a. NUISANCE CANDIDATES: one who has no bona fide intention to run for the office and would thus prevent a faithful determination of the true will of the people. Comelec may upon verified petition of an interested party, REFUSE to give due course to or CANCEL a certificate of candidacy if its is shown that the said certificate was filed: 1. To put the ELECTION PROCESS in mockery or disrepute 2. To cause CONFUSION among the voters by the similarity of the names of the registered candidates or 3. By other circumstances or acts which CLEARLY demonstrate that the candidate has NO BONA FIDE intention to run for the office for which the certificate has been filed, and thus PREVENT a faithful determination of the true will of the electorate. FACTORS TO BE CONSIDERED: 1. Capability to wage nationwide campaign 2. Running under a slate 3. Organization and machinery 4. Performance in previous elections 5. Platform of government 6. Political party affiliations and support 7. Popularity 8. Properties 9. Political exposure 10. Intention to run for office 11. Profession 12. Educational attainment 13. Similarity in name causes confusion 14. Income 15. Qualifications and disqualifications

ii.

6.

7.

Petition to deny cue course or to cancel a COC: PETITION may be file dexclusively on the ground that any material representation contained in the certificate as required by Sec 74 is FALSE. - PETITION may be filed not later than 25 days from the time of the filing of the COC and shall be decided AFTER due notice and hearing, not later than 15 days before the election. i. Comelec division jurisdiction over a petition to CANCEL a COC (not within Comelec en bank) 1. To deny due course or to cancel a cert entails the EXERCISE by the Comelec of its quasi-judicial, not simply administrative powers. 2. Court may only compel the Comelec to exercise its discretion and resolve the matter BUT it may not control the manner of exercising such discretion. ii. Filed a petition for the cancellation of COC on the ground that he latter made a false material representation in his certificate when he said that he is eligible for the office sought to be elected to since he had been CONVICTED of violating BP 22 (moral turpitude) iii. Filed beyond the 25-day period: where the disqualification is based on age, residence, or any of the other grounds for ineligibility, the prescriptive period should be applied strictly. iv. Facsimile of a petition for disqualification is NOT a genuine pleading.

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c. Filing of disqualification case on any of the grounds enumerated in Sec 68 BP 881: i. Jurisdiction of COMELEC to disqualify candidates is LIMITED to those enumerated in Sec 68 BP 881. 1. All other election offenses are beyond the ambit of the comelec. (Comelec- prelim inv on the alleged offense for the purpose of prosecuting the alleged offenders before the courts of justice. ii. IF: already been proclaimed as winner comelec is mandated to dismiss a complaint for the disqualification of a candidate who has been charged with an election offense. c. When candidate supported by preponderance of evidence, believed that he was qualified since there was no intention to deceive the electorate as to ones qualifications for public office.

iv. v. vi. vii. viii.

SUMMARY: (Petition to deny or cancel certificates of candidacy) WHO CAN FILE: Any party HOW: petition to deny due course or cancel certificate of candidacy UNDER OATH WHEN: any time NOT LATER than 25 days from filing of COC of the candidate WHERE: Comelec must decide the case not later than 15 days before election (period not mandatory however) 8. DISQUALIFICATION CASES: a. ASPECTS: i. ELECTORAL 1. Whether the offender should be disqualified from being a candidate or form holding office 2. Proceedings are summary in character and require only a clear preponderance or evidence 3. Erring candidate may be disqualified even without prior determination of PROBABLE CAUSE in a prelim inv. ii. CRIMINAL ASPECT 1. Whether there is probable cause to charge a candidate for an election offense 2. Prosecutor is the COMELEC, determines probable exists or not 3. IF: there is probable cause COMELECs law dept files the criminal information before the proper court 4. Proof beyond reasonable doubt 5. CRIMINAL CONVICTION result in the disqualification of the offender, which ma even include disqualification from holding a future public office. b. GROUNDS: i. Lacking qualifications ii. Filing COC for more than 1 office iii. False and material representation in the COC 1. Requisites: a. MUST BE FALSE b. MATERIAL c. Deliberate and there is intention ot defraud the electorate 2. NO FALSE REPRESENTATIONS: a. When candidate uses the name of her longtime live-in partner OR states a false profession b. WHEN: candidate is actually qualified even f the entries in the COC as filled up by the candidate is not

Disqualification under LGC Nuisance candidates Election offenses enumerated under 68 (1st: prohibited acts and fact of their permanent residency in other country) Declared insane or incompetent by competent authority Sentenced by final judgment for subversion, insurrection, rebellion or an offense which he ahs been sentenced to a penalty of MORE THAN 18 months OR crime involving MORAL TURPITUDE, unless given plenary pardon/amnesty

c.

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. i. IF DELCARED TO BE DISQUALIFIED and he is voted for and receives winning number of cotes COMELEC or court shall continue with trial, and hearing of the action, inquiry and protest and UPON MOTION of the complainant of intervenor, may during the pendency thereof order the SUSPENSION OF THE PROCLAMATION of such candidate whenever the evidence of his guilt is strong. 1. NOTE: suspend proclamation only when the evidence of guilt is strong 2. MAY permissive 3. IF: decision is NOT yet final and executor Board of election inspectors, in the exercise of its ministerial duty, is UNDER OBLIGATION to count and tally votes cast in favor of the candidate. 4. INCORRECT ARGUMENT: since a candidate has been disqualified, votes should be considered null and void. This would amount to disenfranchising the electorate in whim SOVEREIGNTY resides. 5. Votes would not automatically go to second-placer 6. Not quo warranto (question the right to hold an office) because it is unquestionably premature. 7. Doctrine requiring the rendition of judgment within a specified period is generally construed to be MERELY directory. 8. Plenary authority to the Comelec it has jurisdiction over proclamation and disqualification cases a. IF: filed after the election subject to summary hearing. 9. EXCEPT: a. The one who obtained the highest number of votes is disqualified b. The electorate is fully aware in fact and in law of the candidates disqualification so as to bring such awareness with the realm of 9

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9. notoriety but would nonetheless cast their votes in favor of the ineligible candidate. PRESCRIPTION OF ELECTION OFFENSES: a. Prescribes after 5 years from the date of their commission b. IF: discovery is made in an election contest prescription shall commence on the date which the judgment in such proceedings becomes final and executor. Hence, the will of the electorate should be respected. AKBAYAN Youth, et al., petitioners vs. COMMISSION ON ELECTIONS, respondents March 26, 2001 PONENTE: Buena FACTS: Petitioners representing the youth sector seek to direct the COMELEC to conduct a special registration before the May 14, 2001 General Elections, of new voters ages 18 to 21. According to petitioners, around four million youth failed to register on or before the December 27, 2000 deadline set by the respondent COMELEC under Republic Act No. 8189. COMELEC called a consultation meeting among regional heads and representatives and a number of senior staff. It was the consensus of the group, to disapprove the request for additional registration of voters on the ground that Section 8 of R.A. 8189 explicitly provides that no registration shall be conducted during the period starting one hundred twenty (120) days before a regular election and that the Commission has no more time left to accomplish all preelection activities. On February 8, the COMELEC issued Resolution No. 3584, denying the request to conduct a two-day additional registration on February 17 and 18. Aggrieved by the denial, petitioners filed the instant Petition for Certiorari and Mandamus, which seeks to set aside and nullify respondent COMELECs Resolution and/or to declare Section 8 of R. A. 8189 unconstitutional insofar as said provision effectively causes the disenfranchisement of petitioners and others similarly situated. Petitioners invoke the so called standby powers or residual powers of the COMELEC. ISSUE: a.)

CASES: MARCOS YRA VS. MAXIMO ABAO GR No. 30187. November 15, 1928. Ponente: Malcolm, J. Facts: Abao is a native of the municipality of Meycauayan, Bulacan. He transferred to Manila to complete his education. While residing in Manila, he registered as a voter there. Shortly after qualifying as a member of the bar and after the death of his father, he returned to Meycauayan to live. From May 10, 1927, he considered himself a resident of Meycauayan. When the 1928 elections were approaching, he made an application for cancellation of registration in Manila which was dated April 3, 1928, but this was rejected by the city officials for the reason that it was not deposited in the mails on or before April 4, 1928. Nevertheless, he presented himself as a candidate for municipal president of Meycauayan in the 1928 elections and was elected by popular vote to that office. Marcos Yra, vice-president elect of Meycauayan challenged the right of Maximo Abao on the ground that the latter is ineligible. RTC Judge Anastacio Teodoro ruled in favor of Abao. Issue: Whether or not Maximo Abao was eligible to hold said office. Held: YES. The Election Law, as amended, in section 404 provides that No person shall be eligible for any elective municipal office unless, within the time fixed by law, he shall f ile a duly sworn certificate of candidacy. Said certificate shall declare that he is a resident of the municipality in which his candidacy is offered; that he is a duly qualified elector therein, and that he is eligible to the office. The Administrative Code in section 2174, in giving the qualifications of elective officers, also provides that an elective municipal officer must, at the time of the election, be a qualified voter in his municipality and must have been resident therein for at least one year According to Sen. Jose P. Laurel, in his Law of Elections of the PH Islands: One of the qualifications required by law of a person who announces his candidacy is that he must be a duly qualified elector. The Executive Bureau has held that the term "qualified" when applied to a voter does not necessarily mean that a person must be a registered voter. To become a qualified candidate a person does not need to register as an elector. It is sufficient that he possesses all the qualifications prescribed in section 431 and none of the disqualifications prescribed in section 432. The fact that a candidate failed to register as an elector in the municipality does not deprive him of the right to become a candidate to be voted for. Ones eligibility is not affected by his failure to register. The act of registering is only one step towards voting, and it is not one of the elements that makes the citizen a qualified voter. One may be a qualified voter without exercising the right to vote. Registering does not confer the right; it is but a condition precedent to the exercise of the right. Registration regulates the exercise of the right of suffrage but it is not a qualification for such right. MMCN

Whether respondent COMELEC committed grave abuse of discretion in issuing COMELEC Resolution denying the request. NO Whether the SC can compel respondent COMELEC, through the extraordinary writ of mandamus, to conduct a special registration of new voters. NO

b.)

HELD: In a representative democracy such as ours, the right of suffrage, although accorded a prime niche in the hierarchy of rights embodied in the fundamental law, ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature. To be sure, the right of suffrage ardently invoked by petitioners is not at all absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. Substantially, the requirements for the right of suffrage are in Section 1, Article V of the Constitution. (citizen, at least 18 y.o., 1 year-residency in the Phil, 6 months-residency in the place where to vote, not disqualified by law). As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration required under Sec.8 of Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996. The act of registration is an indispensable precondition to the right of suffrage. 10

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Section 8 of R.A. 8189 applies in the present case. The stand-by power of the respondent COMELEC under Section 28 of R.A. 8436, presupposes the possibility of its being exercised or availed of, and not otherwise. The petitioners in the instant case are not without fault or blame. They admit in their petition that they failed to register, for whatever reason, within the period of registration and came to this Court and invoked its protective mantle not realizing, so to speak, the speck in their eyes. Impuris minibus nemo accedat curiam. Let no one come to court with unclean hands. In a similar vein, well-entrenched is the rule in our jurisdiction that the law aids the vigilant and not those who slumber on their rights. Vigilantis sed non dormientibus jura in re subveniunt. Respondent COMELEC did not commit an abuse of discretion, much less be adjudged to have committed the same in some patent, whimsical and arbitrary manner, in issuing Resolution No. 3584. The COMELEC acted within the bounds and confines of the applicable law on the matter -Section 8 of RA 8189. In issuing the assailed Resolution, respondent COMELEC simply performed its constitutional task to enforce and administer all laws and regulations relative to the conduct of an election. As to petitioners prayer for the issuance of the writ of mandamus, the Court cannot, in view of the very nature of such extraordinary writ, issue the same without transgressing the timehonored principles in this jurisdiction. Petition DENIED. VILLABER vs. COMELEC GR No. 148326, November 15, 2001 PONENTE: Sandoval-Guittierez FACTS: Petitioner Pablo Villaber and respondent Douglas Cagas were rival candidates for a congressional seat in the 1st District of Davao Del Sur during the 2001 elections. Cagas filed a petition to disqualify Villaber and to cancel the latters certificate of candidacy. He alleged in the said petition that Villaber was convicted for violation of Batas Pambansa Blg. 22, a crime which, according to Cagas, involves moral turpitude. In his answer to the disqualification suit, Villaber countered that his conviction has not become final and executor because the decision was not remanded to the trial court for promulgation in his presence. Furthermore, he averred that this cannot be the basis for his disqualification since BP Blg. 22 does not involve moral turpitude. COMELEC disqualified Villaber, ruling that a violation of BP Blg. 22 involves moral turpitude. Section 12 of the Omnibus Election Code provides that any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months, or for a crime involving moral turpitude shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. ISSUE: Whether a violation of BP 22 Blg 22 involves moral turpitude HELD: YES. One of the elements of the offense is that the accused knows at the time of the issuance of the check that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of check in full upon its presentment. This element manifests moral turpitude. The MMCN mischief it creates is not only a wrong to the payee or holder, but also an injury to the public since circulation of valueless commercial papers can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and public interest. As to the meaning of moral turpitude, the Court has consistently adopted the definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. Petitioner also contents that the pronouncement in People v. Atty. Fe Tuanda insofar as it states that conviction under BP 22 involves moral turpitude does not apply to him since he is not a lawyer. The Court finds this contention erroneous as the Court did not make a distinction whether the offender is a lawyer or a non-lawyer. Nor did it declare that such offense constitutes moral turpitude when committed by a member of the Bar but is not so when committed by a nonmember. Labo vs Comelec July 3, 1992 Ponente: BIDIN J. Facts: Ramon Labo was a candidate for mayor of Baguio city in the May 11, 1992 elections. On on March 26, 1992 a disqualification case was filed against him by private respondent Roberto Ortega, who was also a candidate for the same position, alleging that petitioner is not aFilipino citizen. On March 27 and April 1, respondent COMELEC issued orders requiring Labo to answer the charges but the latter did not respond. On April 24, the COMELEC issued another order directing the Election Registrar of Baguio City to personally deliver the summons. On May 4, 1992 the disqualification case was set for reception of evidence. Ortega therein presented the decided case of Labo vs COMELEC, the Court ruling that LAbo is not a Filipino citizen. Still, Labo did not present any evidence to answer the allegation. On May 9, the COMELEC issued the assailed decision disqualifying Labo as a candidate for the position of Mayor of Baguio City. On the same day, Labo filed a motion to stay the implementation of the decision. Acting on his motion, the COMELEC issued a resolution allowing Labo to continue to be voted upon as candidate for City Mayor of Baguio subject to the final outcome of the case in the event the isse is elevated to the Supreme Court, either on appeal or certiorari. On May 13, the COMELEC suspended the proclamation of LABO after he received the highest number of votes in the election. On May 15 Labo filed a petition with the COMELEC praying that he be declared as a Filipino citizen, that the May 9 resolution be set aside and to proceed with his proclamation in the event he wins the elections. ON the same day Ortega filed an urgent motion to have the May 9 resolution implemented. Here, Labo argues that he is a Filipino citizen by virtue of Sec 72 of the Omnibus election code as it operates as a legislatively mandated special repatriation proceeding and that it allows hi s proclamation as the winning candidate since the resolution disqualifying him as not yet final at the time the election was held. Also, petitioner argues that the principle of res judicata does not apply in citizenship. Issue: whether Labo is a Filipino citizen because he won the elections and was overwhelmingly voted upon by the citizens of Baguio city Held: No, Sec 72 of the OEC has already been repealed by Sec 6 of RA 6646 which states: .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 11

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Court or the Commission shall continue with 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. As was ruled in the earlier case of Labo vs Comelec, citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record , nor does petitioner claim that he has reacquired Philippine citizenship by any of these methods. Labo was disqualified as a candidate. His election does not automatically restore his Philippine citizenship, the possession of which is an indispensible requirement for holding public office. The will of the people expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. Sec. 39 of the OEC: Qualifications: an elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, panlungsod or bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. confused with a Section 68 petition. They are different remedies, based on different grounds, and resulting in different eventualities. To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Clearly, a petition to cancel or deny due course to a COC under Section 69 as in Section 78 cannot be treated in the same manner as a petition to disqualify under Section 68 as what COMELEC did when it applied the rule provided in Section 72 that the votes cast for a disqualified candidate be considered stray, to those registered candidates whose COCs had been cancelled or denied due course. Strictly speaking, a cancelled certificate cannot give rise to a valid candidacy, and much less to valid votes. Said votes cannot be counted in favor of the candidate whose COC was cancelled as he/she is not treated as a candidate at all, as if he/she never filed a COC. But should these votes cast for the candidate whose COC was cancelled or denied due course be considered stray? COMELEC: the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate. DELA CRUZ vs COMELEC November 13, 2012 PONENTE: Villarama, JR FACTS: In the 2001, 2004 and 2007 elections, petitioner Casimira Dela Cruz ran for and was elected member of the Sangguniang Bayan (SB) of Bugasong, Antique. Petitioner filed her certificate of candidacy for the position of Vice-Mayor of the Municipality of Bugasong for the 2010 elections. Subsequently, Aurelio Dela Cruz also filed a certificate of candidacy for the same position. Petitioner filed a petition to declare Aurelio a nuisance candidate on the ground that he filed his CoC to put the election process in mockery and to cause confusion among voters due to the similarity of their surnames. The COMELEC issued a resolution declaring Aurelio as a nuisance candidate and cancelling his CoC. However, his name was not deleted in the certified list of candidates. Petitioner lost in the election by a margin of 39 votes. She contends that she would have clearly won had the votes cast for Aurelio, totalling 532, were properly tallied in her favor. ISSUE: Whether or not the votes cast for Aurelio should be counted in favor of petitioner Casimira? HELD: In the case of Martinez III vs. HRET, the Court applied the rule in COMELEC Resolution No. 4116 not to consider the votes cast for a nuisance candidate stray but to count them in favor of the bona fide candidate. Aurelio was declared a nuisance candidate long before the May 10, 2010 elections. On the basis of Resolution No. 4116, the votes cast for him should not have been considered stray but counted in favor of petitioner. Petitioner was declared as the dulyelected Vice-Mayor of the Municipality of Bugasong, Antique. At this point, we must stress that a Section 78 petition ought not to be interchanged or MMCN A stray vote is invalidated because there is no way of determining the real intention of the voter. We hold that the rule in Resolution No. 4116 considering the votes cast for a nuisance candidate declared as such in a final judgment, particularly where such nuisance candidate has the same surname as that of the legitimate candidate, notstray but counted in favor of the latter, remains a good law. As earlier discussed, a petition to cancel or deny a COC under Section 69 of the OEC should be distinguished from a petition to disqualify under Section 68. Hence, the legal effect of such cancellation of a COC of a nuisance candidate cannot be equated with a candidate disqualified on grounds provided in the OEC and Local Government Code Moreover, private respondent admits that the voters were properly informed of the cancellation of COC of Aurelio because COMELEC published the same before election day. Finally, upholding the former rule in Resolution No. 4116 is more consistent with the rule wellensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities.32 Indeed, as our electoral experience had demonstrated, such infirmities and delays in the delisting of nuisance candidates from both the Certified List of Candidates and Official Ballots only made possible the very evil sought to be prevented by the exclusion of nuisance candidates during elections. Consequently, the 532 votes cast for Aurelio N. Dela Cruz during the elections of May 10, 2010 should have been counted in favor of Casimira S. Dela Cruz and not considered stray votes, making her total garnered votes 6,921 as against the 6,428 votes of private respondent John Lloyd M. Pacete who was the declared winner. 12

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