Election Law Notes

MID-TERM EXAM COVERAGE

ELECTION LAW & ELECTION OF PUBLIC OFFICER

TECSON v. COMELEC (FERNADO POE JR (March 3, 2004)

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (FPJ), filed his certificate of candidacy for President stating that he is a natural-born citizen of the Philippines, born on 20 August 1939 in Manila. Victorino X. Fornier, petitioner in G.R. NO. 161824, initiated on 9 January 2004, a petition before the Commission on Elections to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Poe, a Spanish subject.

Granting, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother, because, first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelley only a year after the birth of respondent. Respondent denied the allegations.

Petitioner presented several documentary exhibits: 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe,

5) a certification issued by the Director of the Records Management and Archives office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-in-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe.

Respondent presented twenty-two documentary pieces of evidence, the more significant ones being: a) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, b) a certificate of birth of Ronald Allan Poe, c) Original Certificate of Title of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, d) a copy of the certificate of death of Lorenzo Pou, e) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley.On January 2004, the COMELEC’s Third Division dismissed Fournier’s petition. On 6 February 2004, the Comelec en banc denied Fornier’s motion for reconsideration. On 10 February 2004, petitioner assailed the decision of the Comelec before the Supreme Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The other petition, Tecson v. Comelec, and Velez v. Poe, both challenged the jurisdiction of the Comelec and asserted that under Article VII, Section 4, paragraph 7, of the 1987

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Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.

Held: (1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the Fornier’s petition, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure, Tecson’s petition which assails the resolution of the Comelec for alleged grave abuse of discretion in dismissing, for lack of merit, the Fornier’s petition which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material misrepresentation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the Tecson petition and the Velez petition both having been directly elevated to this Court in the latter’s capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held.

(3) In ascertaining Fornier’s petition, whether grave abuse of discretion has been committed by the Comelec, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father.

Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years of old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the “en masse Filipinization” that the Philippine bill had effected in 1902. The citizenship of Lorenzo Pou, if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ.

The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code.

Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos v. Comelec, must not only be material but also deliberate and willful.

VALLES v. COMELEC (August 9, 2000)

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Rosalind Ybasco Lopez, a candidate for governor of Davao Oriental, was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at the age of fifteen, she left Australia and came to settle in the Philippines.

On June 27, 1952, she married Leopoldo Lopez, a Filipino citizen in Manila. She was born a year before the 1935 Constitution took effect and at that time, what served as the Constitution of the Philippines were the principal organic acts by which the United States governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the “Jones Law”

Under organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens.

Rosalind’s father, Telesforo Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the same laws, which were the laws in force at the time of her birth, Telesforo’s daughter, Rosalind, is likewise a citizen of the Philippines. The signing into law of the 1935 Philippine Constitution established the principle of jus sanguinis as a basis for the acquisition of Philippine citizenship. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth.

Rosalind is a Filipino citizen, having been born to a Filipino father. The fact of her being born in Australia is not tantamount to losing her Philippine citizenship. If Australia follows the principle of jus soli, then at most, Rosalind can also claim Australian citizenship resulting to her possession of dual citizenship.

The mere fact that Rosalind was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship.

For renunciation to effectively result in the loss of citizenship, the same must be express.

An application for an alien certificate of registration does not amount to an express renunciation or repudiation of one’s citizenship. The application of Rosalind for an alien certificate of registration, and her holding of an Australian passport were mere acts of assertion of her Australian citizenship before she effectively renounced the same. Thus, at most, private respondent had dual citizenship—she was an Australian and a Filipino, as well.

BAR PROBLEM: (2003 Bar)

Miguel Sin was born a year ago in China to a Chinese father and a Filipino mother. His parents met in Shanghai where they were lawfully married just two years ago. Is Miguel Sin a Filipino citizen?

Miguel Sin is a Filipino citizen because he is the legitimate child of a Filipino mother. Under Article IV, Section 4 of the 1987 Constitution, his mother retained her

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Philippine citizenship despite her marriage to an alien husband, and according to Article IV, Section 1 (2) of the 1987 Constitution, children born of a Filipino mother are Filipino citizens.

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. (Article IV Constitution)


Atty. Emily Go, a legitimate daughter of a Chinese father and a Filipino mother, was born in 1945. At 21, she elected Philippine citizenship and studied law. She passed the bar examinations and engaged in private practice for many years. The Judicial and Bar Council nominated her as a candidate for the position of Associate Justice of the Supreme Court. But her nomination is being contested by Atty. Juris Castillo, also an aspirant to the position. She claims that Atty. Emily Go is not a natural-born citizen, hence, not qualified to be appointed to the Supreme Court. Is this contention correct?

The contention that Atty. Emily Go is not a natural-born citizen is not correct. She was born before January 17, 1973 of a Chinese father and a Filipino mother. She elected Philippine citizenship when she reached twenty-one years of age. Those who elect Philippine citizenship under Section 1 (3), Article IV of the Constitution are natural-born citizens


Andres Ang was born of a Chinese father and a Filipino mother in Sorsogon, Sorsogon, on January 20, 1973. In 1988, his father was naturalized as a Filipino citizen. On May 11, 1998, Andres Ang was elected representative of the First District of Sorsogon. Juan Bonto who received the second highest number of votes filed a petition for Quo Warranto against Ang. The petition was filed with the House of Representatives Electoral Tribunal (HRET). Bonto contends that Ang is not a natural-born citizen of the Philippines and therefore is disqualified to be a member of the House.

The HRET ruled in favor of Ang. Bonto filed a petition for certiorari in the Supreme Court. An issue was raised:

Whether Ang is a natural-born citizen of the Philippines.

Andres Ang should be considered a natural-born citizen of the Philippines. He was born of a Filipino mother on January 20, 1973. This was after the effectivity of the 1973 Constitution on January 17, 1973. Under Section 1, Article III of the 1973 Constitution, those whose fathers or mothers are citizens of the Philippines are citizens of the Philippines. Andres Ang remained a citizen of the Philippines after the effectivity of the 1987 Constitution. Section 1, Article IV of the 1987 Constitution provides:

“The following are citizens of the Philippines:

“(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.”

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In 1964, Ruffa, a Filipina domestic helper working in Hongkong, went to Taipeh for a vacation, where she met Cheng Sio Pao, whom she married. Under Chinese Law, Ruffa automatically became a Chinese citizen. The couple resided in Hongkong, where on May 9, 1965, Ruffa gave birth to a boy named Ernest. Upon reaching the age of majority, Ernest elected Philippine citizenship. After the EDSA Revolution, Ernest decided to live permanently in the Philippines, where he prospered as a businessman. During the May 11, 1993 election, Ernest ran and won as a congressman. His opponent, noting Ernest’s Chinese ancestry, filed a petition to disqualify the latter on the ground that Ernest Cheng is not a natural born Filipino. Decide.

1. Ernest cannot be disqualified. Section 1, Article IV of the Constitution provides:

“The following are citizens of the Philippines: xxx xxx xxx

(3) Those born before January 17, 1973, of Filipino mothers who elect Philippine citizenship upon reaching the age of majority;”

Ernest could elect Philippine citizenship since he was born before January 17, 1973 and his mother is a Filipino. As stated in the cases of Torres v. Tan Chin, 69 Phil 518 and Cu v. Republic, 83 Phil 473, for this provision to apply, the mother need not be a Filipino citizen at the time she gave birth to the child in question. It is sufficient that she was a Filipino citizen at the time of her marriage. Otherwise, the number of persons who would be benefited by the foregoing provision would be limited.

Having elected Philippine citizenship, Ernest is a natural-born Filipino citizen in accordance with Section 2, Article IV of the Constitution, which reads:

“Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.”


“A” was born in 1951 in the United States of a Chinese father and a Filipina mother. Under Chinese laws, “A’s” mother automatically became a Chinese National by her marriage.

In 1973, upon reaching the age of majority, “A” elected to acquire Philippine citizenship. However, “A” continued to reside in California and to carry an American passport. He also paid allegiance to the Taipeh government. In the 1987 Philippine National elections, he was elected Senator. His opponent moved to disqualify him on the ground that he was not a natural-born citizen. Decide.

The electoral contest must be dismissed. “A” is a natural-born citizen. Art. IV, Sec. 2 of the 1987 Constitution provides that “those who elect Philippine citizenship in accordance with paragraph (3), Sec. 1 hereof shall be deemed natural- born citizens.” The purpose of this provision is to equalize the status of those who elected Philippine citizenship before and those who did so after January 17, 1973 when the previous Constitution took effect.

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Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law. (Article IV Constitution)

LOSS OF CITIZENSHIP

Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more;

(4) By accepting commission in the military, naval or air service of a foreign country;

(5) By cancellation of the certificate of naturalization;

(6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; and

7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husband’s country, she acquires his nationality. (Note: This provision was repealed by the 1973 & 1987 Constitutions, see Sec. 4, Art. IV 1987 Const.)

In order that citizenship may be lost by renunciation, such renunciation must be express. (Valles v. Comelec, August 9, 2000)

RENUNCIATION

In order that citizenship may be lost by renunciation, such renunciation must be express. (Valles v. Comelec, August 9, 2000)

Q. Petitioner was issued a Portuguese passport in 1971. He was given naturalization as Filipino citizen in 1978. In 1980, however, he still declared his citizenship as Portuguese in commercial documents and in 1981 he still obtained a Portuguese passport which expired in 1986. Has petitioner renounced Philippine citizenship?

A. Yes, his actions constitute renunciation. “While normally the question of whether or not a person has renounced his Philippine citizenship should be heard before a trial court of law in adversary proceedings, this has become unnecessary as this Court, no less, upon insistence of petitioner, had to look into the facts and satisfy itself on whether or not petitioner’s claim to continued Philippine citizenship is meritorious.” Bernas citing In Willie Yu v. Defensor-Santiago, January 24, 1989.

Q. Labo went through a process of naturalization as Australian and thereafter took the oath of allegiance renouncing Philippine citizenship. He claims that his acquisition of Australian

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citizenship was invalid and that therefore he was still Filipino citizen qualified to run for Philippine office.

A. Whether or not he acquired Australian citizenship validly is between him and Australia. The fact is he renounced Philippine citizenship by taking an oath of allegiance to Australia. And since he has not taken any steps for re-acquiring Philippine citizenship, he is not one now and is not qualified to hold an elective office. (Labor Jr. v. Comelec, August 1, 1989.

Q. Frivaldo does not deny that he was naturalized an American citizen. He, however, claims that his naturalization was involuntary since it was the only way he could stay in the United States and thereby protect himself from Mr. Marcos. Moreover, he claims that by participating in the Philippine political process and filing his certificate of candidacy, he thereby renounced American citizenship and reacquired Philippine citizenship. Decide.

A. He is not a Filipino. There were many Filipinos similarly situated in the United States. And by participating in the political process of the Philippines, at best it would have rendered him stateless. As to reacquisition of Philippine citizenship, if he really wanted to he could have easily done so through the process of repatriation. He did not. (Frivaldo v. Comelec, 174 SCRA 245 (1989)

MODES OF RE-ACQUIRING PHILIPPINE CITIZENSHIP:

Under CA # 63 as amended by P.D. 725, and as provided by R.A 9225, Philippine citizenship may be reacquired by:

1) Direct act of Congress 2) Naturalization3) Repatriation, or4) Taking an oath of allegiance under R.A. 9225

Repatriation is simply the recovery of the original citizenship. It is not a grant of a new citizenship but a recovery from one’s former or original citizenship. Repatriation statute

R.A. 8171, An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos, enacted on October 23, 1995 Sec 1, R.A. 8171Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity, may reacquire Philippine citizenship through repatriation in the manner provided in Section 4 of Commonwealth Act. No. 63, as amended: Provided, That the applicant is not a:

(1) Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government;

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(2) Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas;

(3) Person convicted of crimes involving moral turpitude; or

(4) Person suffering from mental alienation or incurable contagious diseases.

Sec 2, R.A. 8171Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the alien certificate of registration and issue the Certificate of Identification as Filipino citizen to the repatriated citizen.

Lapsed into law on October 23, 1995, without the signature of the President, in accordance with Article VI, Section 27 (1) of the Constitution.

CITIZENSHIP OF REPATRATED CITIZEN:Upon repatriation, a former natural-born Filipino is deemed to have recovered his original status as a natural-born citizen. (Bengzon III v. House of Representatives Electoral Tribunal, May 7, 2001, Coquilla v. Comelec, July 31, 2002)

Natural-born who is naturalized and repatriated is a natural-born citizen. The determining factor is the status that he is a natural-born citizen right from birth as distinguished from a naturalized citizen.

BAR QUESTION: (1999 Bar)

Julio Hortal was born of Filipino parents. Upon reaching the age of majority, he became a naturalized citizen in another country. Later, he reacquired Philippine citizenship. Could Hortal regain his status as natural-born Filipino citizen? Would your answer be the same whether he reacquires his Filipino citizenship by repatriation or by act of Congress? Explain.

Julio Hortal can regain his status as a natural-born citizen by repatriating. Since repatriation involves restoration of a person to citizenship previously lost by expatriation and Julio Hortal was previously a natural-born citizen, in case he repatriates he will be restored to his status as a natural-born citizen. If he reacquired his citizenship by an act of Congress, Julio Hortal will not be a natural-born citizen, since he reacquired his citizenship by legislative naturalization.


A was born in the Philippines of Filipino parents. When martial law was declared in the Philippines on September 21, 1972, he went to the United States and was naturalized as an American citizen. After the EDSA Revolution, he came home to the Philippines and later on reacquired Philippine citizenship by repatriation. Suppose in the May 2004 elections he is elected Member of the House of Representatives and a case is filed seeking his disqualification on the ground that he is not a natural-born citizen of the Philippines. How should the case against him be decided? Explain your answer.

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The case should be decided in favor of A. As held in Bengson v. House of Representatives Electoral Tribunal, 357 SCRA 545 (2001), repatriation results in the recovery of the original nationality. Since A was a natural-born Filipino citizen before he became a naturalized American citizen, he was restored to his former status as a natural-born Filipino when he repatriated.


Juan Cruz was born of Filipino parents in 1960 in Pampanga. In 1985, he enlisted in the U.S. Marine Corps and took an oath of allegiance to the United States of America. In 1990, he was naturalized as an American citizen. In 1994, he was repatriated under Republic Act No. 2430. During the 1998 National elections, he ran for and was elected representative of the First District of Pampanga where he resided since his repatriation. Was he qualified to run for the position? Explain.

Cruz was qualified to run as representative of the First District of Pampanga. Since his parents were Filipino citizens, he was a natural-born citizen. Although he became a naturalized American citizen, under the ruling in Bengson v. House of Representatives Electoral Tribunal, 357 SCRA 545 (2001), by virtue of his repatriation, Cruz was restored to his original status as a natural-born Filipino citizen.


In the May 8, 1995 elections for local officials whose terms were to commence on June 30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of Governor of Laguna. He won, but his qualifications as an elected official was questioned. It is admitted that he is a repatriated Filipino citizen and a resident of the Province of Laguna.

To be qualified for the office to which a local official has been elected, when at the latest should he be a Filipino citizen? Explain.

The citizenship requirement is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. Section 39 of the Local Government Code which enumerates the qualifications of elective local government officials, does not specify any particular date or time when the candidate must possess citizenship. (Frivaldo v. Comelec, June 28, 1996)


Cruz, a Filipino by birth, became an American citizen. In his old age he has returned to the country and wants to become a Filipino again. As his lawyer, enumerate the ways by which citizenship may be reacquired.

Cruz may reacquire Philippine citizenship in the following ways:

1. By naturalization;2. By repatriation pursuant to Republic Act No. 8171; and3. By direct act of Congress (Section 2, of Commonwealth Act No. 63)4. By taking an oath of allegiance under Republic Act 9225

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NATURALIZATION:Naturalization is the legal act of adopting a foreigner and clothing him with the privileges of a natural-born citizen. (Bernas)


Atty. Richard Chua was born in 1964. He is a legitimate son of a Chinese father and a Filipino mother. His father became a naturalized Filipino citizen when Atty. Chua was still a minor. Eventually, he studied law and was allowed by the Supreme Court to take the bar examinations, subject to his submission to the Supreme Court proof of his Philippine citizenship. Although he never complied such requirement, Atty. Chua practiced law for many years until one Noel Eugenio filed with the Supreme Court a complaint for disbarment against him on the ground that he is not a Filipino citizen. He then filed with the Bureau of Immigration an affidavit electing Philippine citizenship. Noel contested it claiming it was filed many years after Atty. Chua reached the age of majority. Will Atty. Chua be disbarred? Explain.

Atty. William Chua should not be disbarred. In accordance with Section 15 of the Revised Naturalization Act, he became a naturalized Philippine citizen when his father became a Filipino during his minority. Hence, there was no need for him to elect Philippine citizenship. (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, (1991)

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. (Article IV Constitution) Filipino women who marry aliens

Is TCA qualified to run a Mayor?

On the assumption that TCA took an oath of allegiance to ZOZ to acquire the citizenship of her husband, she is not qualified to run for mayor. She did not become a citizen of ZOZ merely by virtue of her marriage; she also took an oath of allegiance to ZOZ. By this act, she lost her Philippine citizenship. (Section 1, (3), Commonwealth Act. No. 63)


TCA, a Filipina medical technologist, left in 1975 to work in ZOZ State. In 1988 she married ODH, a citizen of ZOZ. Pursuant to ZOZ’s law, by taking an oath of allegiance, she acquired her husband’s citizenship.

ODH died in 2001, leaving her financially secured. She returned home in 2002, and sought elective office in 2004 by running for Mayor of APP, her hometown. Her opponent sought to have her disqualified because of her ZOZ citizenship. She replied that although she acquired ZOZ’s citizenship because of marriage, she did not lose her Filipino citizenship. Both her parents, she said, are Filipino citizens.


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A child was born to a Japanese father and a Filipina mother. Would he be eligible to run for the position of Member of the House of Representatives upon reaching twenty-five years of age?

The child can run for the House of Representatives provided upon reaching the age of majority he elected Philippine citizenship. Under Section 6, Article VI of the 1987 Constitution, to qualify to be a member of the House of Representatives, one must be a natural-born Philippine citizen. According to Section 1 (3), Article IV of the Constitution children born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority are Philippine citizens.

Note: This question was asked in the 1989 bar examinations where children born after the 1973 Constitution took effect were still minor. Should this question be asked again, the answer is Section 1 (2) of the 1987 Constitution.


What are the effects of marriages of:

1) a citizen to an alien?

2) an alien to a citizen; on their spouses and children? Discuss.

1. According to Section 4, Article IV of the Constitution, Filipino citizens who marry aliens retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.

2. According to Mo Ya Lim Yao, v. Commissioner on Immigration, 41 SCRA 292, under Section 15 of the Revised Naturalization Law, a foreign woman who marries a Filipino citizen becomes a Filipino citizen provided she possesses none of the disqualifications for naturalization. A foreign man who marries a Filipino citizen does not acquire Philippine citizenship. However, under Section 3 of the Revised Naturalization Act, in such a case the residence requirement for naturalization will be reduced from ten to five years. Under Section 1 (2), Article IV of the Constitution, the children of an alien and a Filipino citizen are citizens of the Philippines.

Section 5. Dual allegiance of citizen is inimical to the national interest and shall be dealt with by law (Article IV Constitution)

Does the Constitution allow dual citizenship?

Because Philippine law has no control over citizenship laws of other countries, dual citizenship can be unavoidable under the present Constitution. A child of a Filipina mother is a Filipino and might also have his alien father’s citizenship. A Filipina married to an alien remains a Philippine citizen but might also acquire her alien husband’s citizenship. (Bernas) This provision is a declaration of a policy and it is not a self-executing provision. The legislature still has to enact a law on dual allegiance. (AASJS v. Simeon Datumanong, May 11, 2007)

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In including Section 5 in Article IV on citizenship, the concern of the

Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Intent of the framers of the 1987 Constitution:

This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows: . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance—and I reiterate a dual allegiance—is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the People’s Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources.

Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of Commission, Ople spoke on the problem of these citizen with dual allegiance, thus:

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. . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security.

In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the People’s Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security.

I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship?

DUAL CITIZENS:

Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess a dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.

LAUGHTER:

1. Dual citizenship is not permittable or allowable here in the Philippines. It is disloyalty of being a Filipino citizen.

2. The citizenship of Miguel is dual citizenship. if They stay in foreign country he adopt the principle of Jus soli, at the same time Filipino citizen for the principle of Jus Sanguinis. by blood relationship.

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RA 9225, “An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending For the Purpose Commonwealth Act No. 63, As Amended,” approved on August 2003. Sec. 1. This Act shall be known as the “Citizenship Retention and Reacquisition Act of 2003.”

The intent of the legislature in drafting RA 9225 is to do away with the provision in Commonwealth Act No. 63 which takes away Philippine citizenship from natural-born Filipinos who become naturalized citizens of a foreign country. (AASJS v. Simeon Datumanong, May 11, 2007)

C.A. No. 63 (An Act Providing for the Ways in which Philippine Citizenship may be Lost or Reacquired, approved on October 21, 1936 xxxx

Sec. 1. How citizenship may be lost. - A Filipino citizen may lose his citizenship in any of the following ways and/or events:

(1) By naturalization in a foreign country;xxx

What R.A. 9225 does is allow dual citizenship to natural-born Filipinos who

become naturalized citizens of other countries. On its face, it does not recognize dual allegiance. (AASJS v. Simeon Datumanong May 11, 2007)

Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate the reacquisition of Philippine citizenship by requiring the taking of an oath. He explained that the problem of dual citizenship is transferred from the Philippines to the foreign country because the latest oath that will be taken by the former Filipino is one of allegiance to the Philippines and not to the United States, as the case may be. He added that this is a matter which the Philippine government will have no concern and competence over. (AASJS v. Simeon Datumanong May 11, 2007)

Loss of Philippine citizenship of a former natural-born Filipino by Naturalization is the only ground permitted for re-acquisition of Philippine Citizenship under RA 9225. Sec. 2. It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. (RA 9225)

What the bill (law) does is recognize Philippine citizenship but says nothing about the other citizenship. Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born citizen of the Philippines takes an oath of allegiance to another country and in that oath says that he abjures and absolutely renounces all allegiance to his country of origin and swears allegiance to that foreign country. (AASJS v. Simeon Datumanong, May 11, 2007 citing the deliberations of Congress)

Section 3. Retention of Philippine Citizenship

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Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

“I _____________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.”

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. (RA 9225)

In Sections 2 and 3 of RA 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. (AASJS v. Simeon Datumanong May 11, 2007)

Sec. 4. Derivative Citizenship. - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who reacquire Philippine citizenship upon the effectivity of this Act shall be deemed citizens of the Philippines. ( R.A. 9225)

Sec. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as “The Overseas Absentee Voting Act of 2003” and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

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(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in the active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens.

ERNESTO S. MERCADO v. EDUARDO MANZANO, May 26, 1999

The disqualification of private respondent Manzano is being sought under Section 40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as “disqualified from running for any elective local position: . . . (d) Those with dual citizenship.” This provision is incorporated in the Charter of the City of Makati.

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections.

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen.

In his answer, Manzano admitted that he is registered as a foreigner with the Bureau of Immigration with an Alien Certificate of Registration and alleged that he is a Filipino citizen because he was born of a Filipino father and a Filipino mother. He was born in the United States, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship

The 2 nd Division ruling:

Manzano was disqualified because he holds dual citizenship, Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position.

The En Banc Ruling:

The Commission en banc reversed the resolution of the second division, and held that Manzano was a natural-born Filipino citizen by operation of the 1935 Constitution. The Commission further ruled that Manzano did not renounce his Philippine citizenship, and did not take an oath of allegiance to the United States. In fact, he registered himself and voted in the previous elections. The Commission declared Manzano to be qualified as a candidate for the position of vice-mayor of Makati City.

ISSUE:

Whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.

HELD:

Dual citizenship is different from dual allegiance.

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The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.

For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states.

]While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: “Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.”

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase “dual citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.”

Consequently, persons with mere dual citizenship do not fall under this disqualification.

By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship.

By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizenUntil the filing of his certificate of candidacy, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen.

The fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship.

Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their

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certificate of candidacy, to terminate their status as persons with dual citizenship. The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen. This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of foreign citizenship. (Valles v. Comelec, August 9, 2000) JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu) v. COMELEC and EMILIO MARIO RENNER OSMEŇA, May 25, 1990.

Emilio Osmeña filed his certificate of candidacy for the position Provincial Governor of Cebu. Petitioner as the incumbent Cebu-PDP Laban Provincial Chairman petitioned for a disqualification on the ground that Osmena is not a Filipino citizen, being a citizen of the USA.

Petitioner supported his petition with an application for Alien Registration in the name of Osmena, Alien Certificate of Registration, Permit to Re-enter in the Philippines, Immigration Certificate of Clearance, and BID Certification that Osmeña was a holder of an Alien Certificate of Registration and Immigrant Certificate of Residence.

Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is the legitimate child of Dr. Emilio D. Osmeña, a Filipino and son of the late President Sergio Osmeña, Sr.; that he is a holder of a valid and subsisting Philippine Passport; that he has been continuously residing in the Philippines since birth and has not gone out of the country for more than six months; and that he has been a registered voter in the Philippines since 1965. HELD: Osmeña denied having taken the oath of allegiance of the United States and was a holder of a valid and subsisting Philippine passport and had continuously participated in the electoral process in this country since 1963 up to the present, both as a voter and as a candidate.

By virtue of his being the son of a Filipino father, the presumption that private respondent is a Filipino remains and the loss of his Philippine citizenship cannot be presumed.

Considering the fact that he was both a Filipino and an American, the mere fact that he has a Certificate stating that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships.

And that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship

NOT A CITIZEN AT A TIME OF ELECTION TO PUBLIC OFFICE:

A candidate who was not a citizen on the day of the election was disqualified from running as mayor and, although elected, was not qualified to serve. The candidate’s contention that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship is specious and cannot stand against the clear provisions of CA No.

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63 which enumerates the modes by which Philippine citizenship may be lost. Among these are: 1) naturalization in a foreign country; 2) express renunciation of citizenship; 3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which were applicable to the candidate.

The annulment of a candidate’s Australian citizenship as a result of the finding that his marriage to an Australian national was bigamous did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern the Philippines. That is a matter between him and his adopted country. (Labo v. Comelec, 176 SCRA 1 (1989)

A contention by a naturalized American gubernatorial candidate who won and assumed office that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship was specious. If the Special Committee to process repatriation of citizenship had not yet been convened, the petitioner should have waited until this was done, or seek naturalization by legislative or judicial proceedings.

The candidate’s claim that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States is of no concern to the Philippines. The alleged forfeiture is between him and the United States. Even if he did loss his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual (Frivaldo v. Comelec, 174 SCRA 245 (1989).

Under Section 1 (2), Article IV of the Constitution, those whose fathers are citizens of the Philippines are Filipino citizens. Since X was born in the United States, which follows jus soli, X is also an American citizen. In accordance with Aznar v. Commission on Elections, 185 SCRA 703, the mere fact a person with dual citizenship registered as an alien with the Bureau on Immigration and Deportation does not necessarily mean that he is renouncing his Philippine citizenship. Likewise, the mere fact that X used an American passport did not result in the loss of his Philippine citizenship. As held in Kawakita v. United States, 343 US 717, since a person with dual citizenship has the rights of citizenship in both countries, the use of a passport issued by one country is not inconsistent with his citizenship in the other country.

LAUGHTER:1. No, under the law any member, or wants to be a member of the House of Representatives must be born with Filipino mother and father. 2. Miguel Sin is not a Filipino citizen. The rule stated that only those who were born in the Philippines can automatically acquire Filipino citizenship. 3. No, Because in sections of alienation of the government in our country is to disqualified of elected officials who were not a Filipino Citizen. As the requirements in our country, the number of year stays, at legally age, and met the valid documents that his father a Filipino.

4. No, because he is a naturalized citizen when he was registered as an alien with the Bureau of Immigration.

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5. Yes, According to the rule of law any father or mother are Filipino is automatically the dauther is a Filipino Citizen, X is entitled to run in the 1995 elections.

AGE REQUIREMENT ON THE OF THE ELECTION:

President---------------------- (at least) ---------40 years oldVice-President-------------------------------------40 years oldSenator----------------------------------------------35 years oldHouse of Representatives------------------------25 years oldGovernor ------------------------------------------23 years oldVice-Governor ------------------------------------23 years oldSangguniang Panlalawigan ---------------------23 years old Mayor (of highly urbanized cities) -----------23 years oldVice-Mayor-----------------------------------------23 years oldSangguniang Panlungsod------------------------23 years old

(INDEPENDENT COMPONENT CITIES, COMPONENET CITIES, MUNICIPALITIES)

Mayor ----------------------------------------- 21 years oldVice-Mayor------------------------------------- 21 years old Sangguniang Panlungsod/Sangguniang Pambayan --------------------- 18 years old Punong barangay------------------------------ - 18 years oldSangguniang barangay-------------------------- 18 years old BAR PROBLEM: (1993 Bar)

In 1964, Ruffa, a Filipina domestic helper working in Hongkong, went to Taipeh for a vacation, where she met Cheng Sio Pao, whom she married. Under Chinese Law, Ruffa automatically became a Chinese citizen. The couple resided in Hongkong, where on May 9, 1965, Ruffa gave birth to a boy named Ernest. Upon reaching the age of majority, Ernest elected Philippine citizenship. After the EDSA Revolution, Ernest decided to live permanently in the Philippines, where he prospered as a businessman. During the May 11, 1993 election, Ernest ran and won as a congressman. His opponent, noting Ernest’s Chinese ancestry, filed a petition to disqualify the latter on the ground that he is underage. Decide. Ernest is not underage. Having been born on May 9, 1965, he was over twenty-five years old on the day of the election on May 11, 1993. (Election was held on May 11, 1992). Section 6, Article VI of the Constitution, requires congressmen to be at least twenty-five years of age on the day of the election. BAR PROBLEM: (1999 Bar)

Victor Ahmad was born on December 16, 1972 of a Filipino mother and an alien father. Under the law of his father’s country, his mother did not acquire his father’s citizenship. Victor consults you on December 21, 1993 and informs you of his intention to run for Congress in the 1995 elections. Is he qualified to run? What advice would you give him?

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Would your answer be the same if he had seen and consulted you on December 16, 1991 and informed you of his desire to run for Congress in the 1992 elections? Discuss your answer.

No, Victor Ahmad is not qualified to run for Congress in the 1995 elections. Under Section 6, Article VI of the Constitution, a member of the House of Representatives must be at least twenty-five years of age on the day of the election. Since he will be less than twenty-five years of age in 1995, Victor Ahmad is not qualified to run.

Under Section 2, Article IV of the Constitution, to be deemed a natural-born citizen, Victor Ahmad must elect Philippine citizenship upon reaching the age of majority. I shall advise him to elect Philippine citizenship, if he has not yet done so, and to wait until the 1998 elections.

RESIDENCE:

“Residence” for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. “Residence” is synonymous with “domicile”. When the Constitution speaks of “residence” in election law, it actually means only “domicile”. The Civil Code, Art 50, decrees that “for the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence.” “Domicile” means an individual’s “permanent home,” “a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent.”

“DOMICILE” includes the twin elements of:

1) The fact of residing or physical presence in a fixed place;2) Animus manendi, or the intention of returning there permanently. (Marcos v.

Comelec, 248 SCRA 300 (1995)While “residence” simply requires bodily presence in a given place,

“domicile” requires not only such bodily presence in that place but also a declared and probable intent to make it one’s fixed and permanent place of abode, one’s home. (Domino v. Comelec, 310 SCRA 546 (1999).

A domicile once acquired is retained until a new one is gained.

To successfully effect a change of domicile, one must demonstrate: 1) An actual removal or an actual change of domicile; 2) A bona fide intention of abandoning the former place of residence and establishing a new one; 3) Acts which correspond with the purpose.

In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. (Domino v. Comelec, 310 SCRA 546 (1999)

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To effect an abandonment of domicile requires the voluntary act of relinquishing former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium). An individual does not lose his domicile even if he has lived and maintained residences in different places. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature, is not sufficient to constitute abandonment or loss of such residence. (Marcos v. Comelec, 248 SCRA 300 (1995)

In election cases, the Court treats domicile and residence as synonymous terms, thus: "the 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. (Romualdez v. Regional Trial Court, Branch 7, Tacloban City, Sep 14, 1993)

The change of residence must be voluntary. (Gallego v. Verra, 73 Phil 453 (1941)

Abandonment of Residence:

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 immediate 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 (Romualdez v. Regional Trial Court, Branch 7, Tacloban City, Sep 14, 1993)

In Caasi v. Court of Appeals, 191 SCRA 229 (1990), the Supreme Court ruled that immigration to the United States by virtue of a “green card,” which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines.

Naturalization in a foreign country results in an abandonment of domicile in the Philippines. (Coquilla v. Comelec, July 31, 2002)


In the May 8, 1995 elections for local officials whose terms were to commence on June 30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of Governor of Laguna. He won, but his qualifications as an elected official was questioned. It is admitted that he is a repatriated Filipino citizen and a resident of the Province of Laguna. To be qualified for the office to which a local official has been elected, when at the latest should he be:

A resident of the locality? Explain.

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Under Section 39 of the Local Government Code, an individual must possess the residency requirement in the locality where he intends to run at least one year immediately preceding the day of election (Frivaldo v. Comelec, June 28, 1996).

TERM LIMITS:

Section 8, Art. X of the Constitution

The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms.

Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being together to form a continuous service or consecutive terms. (Socrates v. Comelec, November 12, 2002)

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons:

First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms;

Second, the intervening period constitutes an involuntary interruption in the continuity of service.

A petition to declare Hagedorn disqualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa, Palawan and to cancel his certificate of candidacy was properly dismissed by the Comelec for lack of merit. Hagedorn is qualified to run in the recall election because:

(1) Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001;

(2) Hagedorn’s continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen;

(3) Hagedorn’s recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and

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(4) Term limits should be construed strictly to give the fullest possible effect to the

right of the electorate to choose their leaders. (Socrates v. Comelec, November 12, 2002)


In the May 1992 elections, Manuel Manalo and Segundo Parate were elected as Mayor and Vice-Mayor, respectively. Upon the death of Manalo as incumbent municipal mayor, Vice-Mayor Segundo Parate succeeded as mayor and served for the remaining portion of the term of office. In the May 1995 election, Segundo Parate ran for and won as mayor and then served for the full term. In the May 1998 elections, Parate ran for reelection as Mayor and won again. In the May 2001 election, Segundo Parate filed his certificate of candidacy for the same position of mayor, but his rival mayoralty candidate sought his disqualification alleging violation of the three-term limit for the local elective officials provided for in the Constitution and in the Local Government Code.

Decide whether the disqualification case will prosper or not.

The disqualification case should be dismissed. In computing the three-term for which Segundo Parate was elected, the term which he served as a result of succession should not be included. It is not enough that the official has served three consecutive terms. He must have been elected to the same position three consecutive times. BAR PROBLEM: (2005 Bar)

Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992 1995 and 1998. He fully served his first two terms, and during his third term, the municipality was converted into the component City of Tuba. The said charter provided for a hold-over and so without interregnum Manuel went on to serve as the Mayor of the City of Tuba. In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed, though, that he had already served for three consecutive terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of candidacy that he is running for the position of Mayor for the first time now that Tuba is a city. Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had already served for three consecutive terms as Mayor. The petition was not timely acted upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes received by Reyes as the only other candidate. It was only after Manuel took his oath and assumed office that the COMELEC ruled that he was disqualified for having run and served for three consecutive terms.

a. As lawyer of Manuel, present the possible arguments to prevent his disqualification and removal.

As lawyer of Manuel, I would argue that he should not be disqualified and removed because he was a three-term mayor of the municipality of Tuba, and, with its conversion to a component city, the latter has a totally separate and different corporate personality from that of the municipality. Moreover, as a rule, in a representative democracy, the people should be allowed freely to choose those who will govern them. Having won the elections, the choice of the people should be respected.

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b) How would you rule on whether or not Manuel is eligible to run as Mayor of the newly-created City of Tuba immediately after having already served for three (3) consecutive terms as Mayor of the Municipality of Tuba?

Manuel is not eligible to run as mayor of the City of Tuba. The 1987 Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.

To allow Manuel to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Tuba, Manuel would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. (Latasa v. Comelec, December 10, 2003)


Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor in 2004 elections, his opponent, Khalil, filed an election protest before the Commission on Elections. Ruling with finality on the protests, the COMELEC declared Khalil as the duly elected Vice-Governor though the decision was promulgated only in 2007, when Abdul had fully served his 2004-2007 term and was in fact already on his 2007-2010 term as Vice-Governor.

Abdul now consults with you if he can still run for Vice-Governor of Tawi-Tawi in the forthcoming May 2010 election on the premise that he could not be considered as having served as Vice-Governor from 2004-2007 because he was not duly elected to the post, as he assumed office merely as a presumptive winner and that presumption was later overturned when the COMELEC decided with finality that he had lost in the May 2004 elections. What will be your advice?

Abdul may no longer run because he has served three full terms. The decision regarding his second term is of no moment because he has already fully served the term. Moreover, such decision did not oust him from his third term.


In the elections of May 1992, Cruz and Santos were the candidates for the office of Municipal Mayor, the term of which was to expire on June 30, 1995. Finding that he won by a margin of 20 votes, the Municipal Board of Canvassers proclaimed Cruz as the duly elected Mayor. Santos filed an election protest before the Regional Trial Court which decided that it was Santos who had the plurality of 30 votes and proclaimed him the winner. On motion made, the RTC granted execution pending the appeal of Cruz to the Commission on Elections and on this basis, Santos assumed office and served as Municipal Mayor.

In time, the Comelec reversed the ruling of the RTC and instead ruled that Cruz won by a margin of 40 votes and proclaimed him the duly elected Municipal Mayor.

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It is now beyond June 30, 1995. Can Cruz still hold office for the portion of the term he has failed to serve? Why?

As held in Malaluan v. Commission on Elections, 254 SCRA 397 (1996) Cruz can no longer hold office for the portion of the term he failed to serve since his term has expired.


State whether a law fixing the terms of local elective officials, other than barangay officials, to 6 years is constitutional.

A law fixing the terms of local officials, other than barangay officials, at six (6) years is unconstitutional, because the Constitution fixes the terms of local offices at three (3) years. The Congress may only determine the terms of barangay officials. (Section 8, Article X)

LAUGHTER:

1. Cruz can still hold office as mayor even though the term of office has already expired. He will assume office in the next term provided that he was declared as mayor by the Comelec.

2. As long as the people judge during his term as mayor themargin of 20 votes win by the elected mayor. The other filed an election protest against the later. Granting the chair basis for ruling is to recount the number of votes as the result knownthat the elected mayor won 40 votes as counted, by the chair Comelec.

3. Yes, Cruz can still have his authority to hold office because he won as municipal mayor over Santos. The decision also was too late because Santos filed an election protest.

Sec. 66 (OEC) Candidates holding appointive office or position. Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

Related statute:

Section 13, RA 9369xxx xxx xxx

Provided finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day

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

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Section 67, OEC has been declared repealed by R.A. No. 9006, Section 14.

Sec. 14, RA 9006. Sections 67 and 85 of the Omnibus Election Code and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of RA 8436 is rendered ineffective. xxx xxx xxx


A, a City Legal Officer, and B, a City Vice-Mayor, filed certificates of candidacy for the position of City Mayor in the May 14, 2001 elections.

A. Was A ipso facto considered resigned and, if so, effective on what date?

B. Was B ipso facto considered resigned and, if so, effective on what date? In both cases, state the reason or reasons for your answer.

ANSWERS:

A) A was considered ipso facto resigned upon the filing of his certificate of candidacy, because being a City Legal Officer, he is an appointive official. Section 66 of the Omnibus Election Code provides that any person holding a public appointive office shall be considered ipso facto resigned upon the filing of his certificate of candidacy.

B) B is not considered ipso facto resigned. Section 67 of the Omnibus Election Code, considers any elective official ipso facto resigned from office upon his filing of a certificate of candidacy for any office other than the one he is holding except for President and Vice-President, was repealed by the Fair Election Act.

LAUGHTER:

1. Yes, A is considered resigned on his chosen date and that is before June 30, 2001.

2. No, A is not considered resigned unless he will file a resignation letter. In case, he will not win, he is still the City Legal Officer.

3. A is considered resigned the day after he filed his certificate of candidacy to the office of the COMELEC.

4. April 14, 2001 because when he filed his certificate of candidacy he automatically resigned in order to prepare for his campaign. 5. If A wins for the position of City Mayor, he is considered resigned from his previous position on the day he will take his oath. But if A will not win, he can still continue to serve as a legal officer of the city because he did not sign a resignation letter when he filed his certificate of candidacy. 6. Regardless of whether B wins or not, he will be considered resigned because his term as a vice-mayor will expire on the day of oath taking.

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7. A was ipso facto considered resigned effective May 14, 2001, but if lost in the position of City Mayor, he can still back to his position as City Legal Officer.

8. A is not considered resigned upon filing his candidacy but if he will win in the election, that would be the effectivity of his resignation.

9. A was considered resigned upon the approval of his certificate of candidacy by the Comelec.

10. B was considered resigned upon the proclamation of the winning candidate for City Vice-Mayor.

11. B is not ipso facto considered resigned because of the comelec ruling that, if you are vice mayor you are entitled to run as mayor without resigning from your position as vice mayor.

12. A city legal officer of the legislative body in legal corporation. From it starts until the deadline of filling of candidacy.

13. A city Vice Mayor of the executive body of local heads. From the begginning of filling until the deadline.

14. He is considered as resigned, effective on the day of his resignation.

15. No, A is not obliged leaving his position as City Legal Officer, because he is not in the higher position? 16. The effectivity of resignation date of A, a month before he filling his candidacy. the same cases of B, a month before he file his candidacy for the position of city mayor. 17. In ipso facto law A, is not considered resigned, in the date can filed that effect. 18. B considered resigned in the date took effect. SEC. 68 (OEC) DISQUALIFICATIONS

Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; b) committed acts of terrorism to enhance his candidacy; c) spent in his election campaign an amount in excess of that allowed by this Code; d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or e) violated any of Sections 80, 83, 85 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.

Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

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BAR QUESTION (91 Bar)

In connection with the May 1987 Congressional elections, Luis Millanes was prosecuted for and convicted of an election offense and was sentenced to suffer imprisonment for six years. The court did not impose the additional penalty of disqualification to hold public office and of deprivation of the right of suffrage as provided for in Section 164 of the Omnibus Election Code of the Philippines.

In April 1991, the President granted him absolute pardon on the basis of a strong recommendation of the Board of Pardons and Parole.

Then for the election in May 1992, Luis Millanes filed his certificate of candidacy for the office of Mayor in his municipality.

Is a petition to disqualify Millanes viable?ANSWER:

In accordance with Section 68 of the Omnibus Election Code, Luis Millanes may be disqualified from running for mayor as he was convicted of an election offense.

Related provisions: Sec. 12, OEC, Sec. 40, RA 7160

Sec. 40. (RA 7160) Disqualifications- The following persons are disqualified from running for any elective local position:

a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence.

b) Those removed from office as a result of an administrative case;

c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

d) Those with dual citizenship;

e) Fugitives from justice in criminal or non-political cases here or abroad;

f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

g) The insane or feeble minded.

Those remove from office because of an Administrative case

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A public officer who was found guilty of an administrative case and ordered removed in a decision that became final before the election is not qualified to run for election. (Reyes v. Comelec, 254 SCRA 514 (1996)

However, if before the petition questioning the validity of the administrative decision removing a public officer could be decided, the term of office during which the alleged misconduct was committed expired, and he is reelected, he can no longer be removed, because his reelection operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him for it. (Aguinaldo v. Santos, 212 SCRA 768 (1992)

REYES V. COMELEC, 1996 March 7, 1996

Petitioner Reyes was the incumbent mayor of Bongabong, Oriental Mindoro having been elected in 1992. In 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan. The Sangguniang Panlalawigan found him guilty and ordered his removal from office. But before the Sangguniang Panlalawigan could render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the RTC alleging that the proceedings had been terminated without giving him a chance to be heard. Hence, a temporary restraining order was issued by the court enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes.

But after the expiration of the TRO, no injunction was issued by the RTC. Hence, an attempt was made to serve the decision upon petitioner’s counsel, however, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the petition.

On March 20, 1995, petitioner filed a certificate of candidacy. Private respondent, a registered voter of Bongabong, sought Reyes’ disqualification citing Sec. 40 (b), RA 7160.

Because of the absence of any contrary order from the COMELEC, Reyes was voted for in the election of May 8, 1995.On May 9, 1995, the Comelec’s second division disqualified petitioner citing Sec. 40 (b), RA 7160 and cancelled his certificate of candidacy.

On May 10, 1995, the Municipal Board of Canvassers, apparently unaware of the disqualification, proclaimed Reyes as the duly-elected mayor.

The Comelec en banc denied petitioner’s motion for reconsideration and declared him disqualified as candidate, and consequently, set aside his proclamation.

ISSUES:

1. Whether the decision of the Sangguniang Panlalawigan ordering him removed from office became final considering that petitioner was not served a copy thereof.

2. Whether the election of petitioner rendered the administrative charges against him moot and academic.

HELD:

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It appears that the failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision despite repeated attempts had been made.

If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it.When the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding.

Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to § 40(b) of the Local Government Code, he was disqualified from running for reelection.

LINGATING V. COMELEC, November 13, 2002.

Petition for disqualification filed on May 3, 2001 with the Provincial Election Supervisor by petitioner against Cesar B. Sulong as candidate for mayor pursuant to Sec. 40 (b) RA 7160, which disqualifies from running for any elective local position “those removed from office as a result of an administrative case” was properly dismissed by the Comelec, since the decision of the Sangguniang Panlalawigan finding him guilty of the administrative charges for various offenses and ordering his removal from office had not become final and executory, because Sulong filed a motion for reconsideration that had not yet been resolved at the time of the May 14, 2001 elections.

TRILLANES V. PIMENTEL, June 27, 2008

Petitioner’s contention hinges on the doctrine in administrative law that “a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.

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The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no “prior term” to speak of. In a plethora of cases, the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, reelection to office does not obliterate a criminal charge.

Those with dual citizenship:\The phrase “dual citizenship” in R.A. No. 7160, Section 40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.” (Mercado v. Manzano, May 26, 1999)

Consequently, persons with mere dual citizenship do not fall under this disqualification. PERMANENT RESIDENCE

Immigration is the removing into one place from another; the act of immigrating, the entering into a country with the intention of residing in it.

"An immigrant is a person who removes into a country for the purpose of permanent residence. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. (Anecito v. Comelec, (Caasi) December 8, 1990)

CAASI V. COMELEC 191 SCRA 229 (1990)

Merito Miguel was a green card holder of the United States of America, was elected mayor in Bolinao, Pangasinan. Mateo Caasi, a rival candidate petitioned to disqualify Miguel on account of his being a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan that he voted in all previous elections, including the plebiscite on February 2, 1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18, 1987. The COMELEC dismissed the petition on the ground that Miguel did not abandon his residence

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ISSUES:(1) Whether or not a green card is proof that the holder is a permanent resident of the United States, and

(2) Whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. HELD:In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently."

On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed:

"Alien Registration Receipt Card

"Person identified by this card is entitled to reside permanently and work in the United States." Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there, he entered the United States with the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18, 1988 local elections, waive his status as a permanent resident or immigrant of the United States?

To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code).

To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for

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elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). BAR PROBLEM 1993 Bar

Ferdie immigrated to the United States in the 1980s. Thereafter, he visited his hometown, Makahoy, every other year during town fiestas. In January 1993, Ferdie came home and filed his certificate of candidacy for Mayor of Makahoy. He won in the elections. Joe, the defeated candidate, learned that Ferdie is a green card holder which on its face identifies Ferdie as a “resident alien” and on the back thereof is clearly printed: “Person identified by this card is entitled to reside permanently and work in the United States.” Joe filed a case to disqualify Ferdie from assuming the mayorship of Makahoy.

1. Whether or not a green card is proof that the holder is a permanent resident of the United States.

2. Whether or not Ferdie’s act of filing his certificate of candidacy constitutes waiver of his status as a permanent resident of the United States.

1. According to the ruling in Caasi v. Court of Appeals, 191 SCRA 229, a green card is proof that the holder is a permanent resident of the United States, for it identifies the holder as a resident of the United States and states that the holder is entitled to reside permanently and work in the United States.

2. The filing of a certificate of candidacy does not constitute a waiver of the status of the holder of a green card as a permanent resident of the United States. As held in Caasi v. Court of Appeals, 191 SCRA 229, the waiver should be manifested by an act independent of and prior to the filing of his certificate of candidacy.

Sec. 69. (OEC) Nuisance Candidates. The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstance or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.

A nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate by the similarity of the names of the registered candidate or by other names which demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. (Fernandez v. Fernandez, 36 SCRA 1 (1970)

A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them. (Martinez v. HRET, G.R. # 189034 January 11, 2010)

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Section 69 of the Omnibus Election Code sets forth that the COMELEC may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel certificate of candidacy if the following situations are extant:1. if it is shown that said certificate has been filed to put the election process in mockery or disrepute;

2) or if said certificate was filed to cause confusion among the voters by the similarity of the names of the registered candidate; 3) or if there are other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. (Cipriano Bautista v. Comelec, November 13, 1998)

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards, this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. (Martinez v. HRET, G.R. No. 189034, January 11, 2010 citing Pamatong v. Comelec)

The prohibition against nuisance candidates is aimed precisely at preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus, in certain situations as in the case at bar, final judgments declaring a nuisance candidate should effectively cancel the certificate of candidacy filed by such candidate of election day. Otherwise, potential nuisance candidates will continue to put the electoral process into mockery by filing certificates of candidacy at the last minute and delaying resolution of any petition to declare them as nuisance until elections are held and the votes counted and canvassed. (Martinez v. HRET, G.R. No. 189034, January 11, 2010 citing Pamatong v. Comelec)

Sec 7. (d) of RA 7166xxx xxx xxx

Provided, That, if a candidate has been disqualified or declared a nuisance candidate, it shall be the duty of the Commission to instruct without delay the appropriate election officials to delete the name of said candidate as printed in the election return.

Sec. 70, (OEC) Guest Candidacy. A political party may nominate and/or support candidates not belonging to it.

Sec. 72, (OEC) Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that

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a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such elections, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption of office.

AMENDING STATUTE:

RA 6646 - An Act Introducing Additional Reforms in the Electoral System and for Other Purposes.Sec. 6, (RA 6646) Effect 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.

EFFECTS OF A PETITION FOR DISQUALIFICATION

Candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the Comelec suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners. (Coquilla v. Comelec, July 31, 2002)

Q. Will the Comelec commit grave abuse of discretion if the petition for disqualification is not decided before the date of the election? A. Under R.A. No. 6646, Sec. 6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. (Reyes v. Comelec, 254 SCRA 514 (1996)

Rev. Fr. Nardo B. Cayat V. COMELEC, April 24, 2007

Cayat and Palileng were the only candidates for the mayoralty post in Buguias, Benguet in the May 10, 2004 local elections. Cayat was still under probation when he filed his certificate of candidacy after having been convicted for the crime of forcible acts of lasciviousness. Palileng filed a petition for disqualification under Section 40 (a) of R.A. 7160.

HELD:

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The failure to pay the filing fee made the motion for reconsideration a mere scrap of paper, as if Cayat did not file any motion for reconsideration at all. Thus, the disqualification of Cayat became final 23 days before the election.

Thus, Palileng was the only candidate for Mayor of Buguias in the May 10, 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none.

Cayat’s proclamation is void because the decision disqualifying Cayat had already become final before the election. There is no longer any need to ascertain where there was actual knowledge by the voters of Cayat’s disqualification when they cast their votes on election day because the law mandates that Cayat’s votes shall not be counted. There is no disenfranchisement of the 8,164 voters. Rather, the 8164 voters are deemed by law to have deliberately voted for a non-candidate, and thus their votes are stray and “shall not be counted.”

BAR PROBLEM (91 Bar)

In connection with the May 1987 Congressional elections, Luis Millanes was prosecuted for and convicted of an election offense and was sentenced to suffer imprisonment for six years. The court did not impose the additional penalty of disqualification to hold public office and of deprivation of the right of suffrage as provided for in Section 164 of the Omnibus Election Code of the Philippines.

In April 1991, the President granted him absolute pardon on the basis of a strong recommendation of the Board of Pardons and Parole.

Then for the election in May 1992, Luis Millanes filed his certificate of candidacy for the office of Mayor in his municipality.

What are the effects of a petition to disqualify?

ANSWER:Under Section 6 of the Electoral Reforms Law, any candidate who has been declared by final judgment to be disqualified shall not be voted for, and votes cast for him shall not be counted. If before the election he is not declared by final judgment to be disqualified and he is voted for and he receives the winning number of votes, the hearing on the question of disqualification should continue. Upon motion of the complainant or any intervenor, the court or the Commission on Elections may order the suspension of the proclamation of the winning candidate if the evidence of his guilt is strong.

THE DOCTINE OF REJECTION OF THE SECOND PLACER

The doctrine will apply if two conditions concur:

1) The decision on disqualification remained pending on election day

2) The decision on disqualification became final only after the elections

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The doctrine on the rejection of the second placer has one common essential condition—the disqualification of the candidate had not become final before the elections. (Cayat v. Comelec, April 24, 2007)

It creates confusion in the results of the elections and invites needless new litigations from a candidate whose disqualification had long become final before the elections. The doctrine on the rejection of the second placer was never meant to apply to a situation where a candidate’s disqualification had become final before the elections. (Cayat v. Comelec, April 24, 2007) The rule that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. The court cannot extrapolate the results under the circumstances. (Reyes v. Comelec, 254 SCRA 514 (1996) BAR PROBLEM: (2003 Bar)

In the municipal mayoralty elections in 1980, the candidate who obtained the highest number of votes was subsequently declared to be disqualified as a candidate and so ineligible for the office to which he was elected. Would this fact entitle a competing candidate who obtained the second highest number of votes to ask and to be proclaimed the winner of the elective office? Reasons.

According to Trinidad v. Commission on Elections, 315 SCRA 175 (1999) if the candidate who obtained the highest number of votes is disqualified, the candidate who obtained the second highest number of votes cannot be proclaimed the winner. Since he was not the choice of the people, he cannot claim any right to the office. BAR PROBLEN: (1990 Bar)

A filed a protest with the House of Representatives Electoral Tribunal questioning the election of B as Member of the House of Representatives in the 1987 national elections on the ground that B is not a resident of the district the latter is representing. While the case was pending, B accepted an ad-interim appointment as Secretary of the Department of Justice.

1) May A continue with his election protest in order to determine the real winner in the said elections? State your reason.

2) Can A who got the second highest number of votes in the elections, ask that he be proclaimed elected in place of B? Explain your answer.

ANSWER:1) No, A may not continue with his protest. There is no dispute as to who was the winner in the election, as it is not disputed that it was B who obtained the majority. The purpose of the protest is simply to seek the removal of B from office on the ground that he is ineligible.

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However, B forfeited his claim to the position of congressman by accepting an ad interim appointment as Secretary of Justice, the protest against him has become moot.

2) No, A cannot ask that he be proclaimed elected in place of B. The votes cast for B were not invalid votes. Hence, A garnered only the second highest number of votes. Only the candidate who obtained the majority or plurality of votes is entitled to be proclaimed elected. On this ground, it was held in Labo v. Commission on Elections, 176 SCRA 1, that the fact that the candidate who obtained the highest number of votes is not eligible does not entitle the candidate who obtained the second highest number of votes to be proclaimed the winner.


Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992 1995 and 1998. He fully served his first two terms, and during his third term, the municipality was converted into the component City of Tuba. The said charter provided for a hold-over and so without interregnum Manuel went on to serve as the Mayor of the City of Tuba.

In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed, though, that he had already served for three consecutive terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of candidacy that he is running for the position of Mayor for the first time now that Tuba is a city.

Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had already served for three consecutive terms as Mayor. The petition was not timely acted upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes received by Reyes as the only other candidate. It was only after Manuel took his oath and assumed office that the COMELEC ruled that he was disqualified for having run and served for three consecutive terms.

Assuming that Manuel is not an eligible candidate, rebut Reyes’ claim that he should be proclaimed as winner having received the next higher number of votes.

Reyes cannot be proclaimed winner for receiving the second highest number of votes. The Supreme Court has consistently ruled that the fact that a plurality or a majority of the votes cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate’s election a nullity. In the present case, 10,000 votes were cast for private respondent Reyes as against the 20,000 votes cast for petitioner Manuel. The second placer is obviously not the choice of the people in this particular election. The permanent vacancy in the contested office should be filled by succession. (Labo v. Comelec, July 3, 1992)

ALTERNATIVE ANSWER:

Reyes could not be proclaimed as winner because he did not win the election. To allow the defeated candidate to take over the Mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice. (Benito v. Comelec, August 17, 1994)

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BAR PROBLEM (96 Bar)

A and B were the only candidates for mayor of Bigaa, Bulacan in the May 1995 local elections. A obtained 10,000 votes as against 3,000 votes for B. In the same elections, X got the highest number of votes among the candidates for the Sangguniang Bayan of the same town. A died the day before his proclamation.

a) Who should the Board of Canvassers proclaim as elected mayor, A, B or X? Explain.

b) Who is entitled to discharge the functions of the office of the mayor, B or X? Explain.

A. In accordance with Benito v. Commission on Elections, 235 SCRA 436, it is A who should be proclaimed as winner, because he was the one who obtained the highest number of votes for the position of mayor, but a notation should be made that he died for the purpose of applying the rule on succession to office. B cannot be proclaimed, because the death of the candidate who obtained the highest number of votes does not entitle the candidate who obtained the next highest number of votes to be proclaimed the winner, since he was not the choice of the electorate. X is not entitled to be proclaimed elected as mayor, because he ran for the Sangguniang Bayan.

B. Neither B nor X is entitled to discharge the functions of the office of mayor. B is not entitled to discharge the office of mayor, since he was defeated in the election. X is not entitled to discharge the office of mayor. Under Section 44 of the Local Government Code, it is the vice-mayor who should succeed in case of permanent vacancy in the office of the mayor. It is only when the position of the vice-mayor is also vacant that the member of the Sangguniang Bayan who obtained the highest number of votes will succeed to the office of mayor.

Sec. 73. (OEC) Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

xxx xxx xxx

The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Miranda v. Abaya, July 28, 1999)

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Filing of statement of contributions and expenditures applicable to withdrawn candidate

Petitioner’s withdrawal of his candidacy did not extinguish his liability for the administrative fine pursuant to Section 14 of R.A. 7166, for failure to file his statement of contributions and expenditures, since Section 73 of the Omnibus Election Code provides that the filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. (Pilar v. Comelec, 245 SCRA 759 (1995)

Sec. 74. (OEC) Contents of certificate of candidacy

xxx xxx xxx

MANDATORY BEFORE ELECTION BUT DIRECTORY AFTERWARDS

The provision of the election law regarding certificates of candidacy, such as signing and swearing, and the information required to be stated therein, are considered mandatory prior to the elections. Thereafter, they are regarded as merely directory. The proclamation of the candidate as winner may not be nullified on such ground. The defects in the certificate should have been questioned before the election; they may not be questioned after the election without invalidating the will of the electorate, which should not be done. (Lambonao v. Tero, 15 SCRA 1965); Sinaca v. Mula, 315 SCRA 266 (1999)

CORRECTION OF CERTIFICATE

A certificate of candidacy may be corrected. Once entries in a certificate of candidacy are corrected, it is the corrected version which is considered filed and not the earlier one. (Yason v. Comelec, 134 SCRA 371 (1985)

The amendment of the certificate, although made after the deadline for filing it, but before the election, is a substantial compliance with the law and cures its defect. (Alialy v. Comelec, 2 SCRA 957 (1961)

Sec. 75. (OEC) Filing and distribution of certificate of candidacy. - The certificate of candidacy shall be filed on any day from the commencement of the election period but not later than the day before the beginning of the campaign period: Provided, That in cases of postponement or failure of election under Sections 5 and 6 hereof, no additional certificate of candidacy shall be accepted except in cases of substitution of candidates as provided under Section 77 hereof.

xxx xxx xxx

Sec 75 of the Omnibus Election Code was amended by R.A. No. 6646, Section 4.

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

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The duty of the Commission on Elections to give due course to certificates of candidacy, filed in due form, is ministerial in character (see Abcede vs. Imperial, 103 Phil., 136). Stated in another way, while the Commission may look into patent defects in the certificates, nevertheless, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate for non-age is thus beyond the usual and proper cognizance of said body, and could not have consequently been litigated therein (Sanchez v. Del Rosario, April 26, 1961).

Sec. 77. (OEC) Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.

Sec. 77 of the Omnibus Election Code was amended by R.A. No. 6646, Section 4 and was further amended by R. A. No. 7166, Section 7, which repealed the former insofar as it was inconsistent with the latter.

Related Statute:

Sec. 7 (d) of R.A. 7166xxx xxx xxx

Provided, That, if a candidate has been disqualified or declared a nuisance candidate, it shall be the duty of the Commission to instruct without delay the appropriate election officials to delete the name of said candidate as printed in the election return.

Sec. 12, (RA 9006) – SUBSTITUTION OF CANDIDATES

In case of valid substitution after the official ballots have been printed the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate has the same family name, this provision shall not apply.

A candidate, being under age, can be considered to have filed a valid

certificate of candidacy, and can be validly substituted.

JOY CHRISMA B. LUNA V. COMELEC, April 24, 2007

FACTS:

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Petitioner filed her certificate of candidacy for the position of vice-mayor of

Lagayan, Abra as a substitute for Hans Roger, who withdrew his certificate of candidacy on the same date. (January 15, 2004)

Five days later, private respondents filed a petition for the cancellation of the

certificate of candidacy or disqualification of Luna on the following grounds: 1. Luna’s certificate of candidacy was not validly filed because the

substitution by Luna for Hans Roger was invalid. 2. Hans Roger was only 20 years old on election day and, therefore, he was

disqualified to run for vice-mayor and cannot be substituted by Luna. The First Division ruled that while Luna complied with the procedural requirements

of substitution, Hans Roger was not a valid candidate for Vice-Mayor because he was underage and therefore, did not file a valid certificate of candidacy, and, thus, Hans Roger was not a valid candidate for vice-mayor who could be substituted by Luna. The comelec en banc affirmed the finding that Hans Roger was underage, and may not be validly substituted by Luna.

ISSUE:

Whether the COMELEC committed grave abuse of discretion when it ruled that there was no valid substitution by Luna for Hans Roger.

HELD:

Under Section 76 of the Omnibus Election Code, it is the ministerial duty of the COMELEC to receive and acknowledge receipt whenever a candidate files his certificate of candidacy.

In this case, Hans Roger filed his certificate of candidacy on the last day of

filing, and the COMELEC has the ministerial duty to give due course to Hans Roger’s certificate of candidacy.

Ten days after filing the certificate of candidacy, Hans Roger withdrew his

certificate of candidacy and Petitioner Joy Luna filed her certificate of candidacy as substitute for Hans Roger.

The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form.

In Sanchez vs. Del Rosario, the Court ruled that the question of eligibility or

ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC.

Section 78 of the Omnibus Election Code, provides that in case a person filing a

certificate of candidacy has committed false material representation, a verified petition to deny due course to or cancel the certificate of candidacy of said person

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may be filed at any time not later than 25 days from the time of filing of the certificate of candidacy.

If Hans Roger made a material misrepresentations to his date of birth or age in his certificate of candidacy, his eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy under Section 78.

In this case, there was no petition to deny due course to or cancel the

certificate of candidacy of Hans Roger. But the COMELEC only declared that Hans Roger did not file a valid

certificate of candidacy in the petition to deny course to or cancel Joy Luna’s certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Roger’s certificate of candidacy and declared the substitution by Luna invalid.

In other words, petitioner validly substituted Hans Roger. N.B. It would have been different if there was a petition to deny due course to or

cancel Hans Roger’s certificate of candidacy. For if the COMELEC cancelled Han’s Roger’s certificate of candidacy after the proper proceedings, then he is no candidate at all and there can be no substitution of a person whose certificate of candidacy has been cancelled and denied due course.

OFFICIAL CANDIDATE Only an official candidate of a registered or accredited political party may be

substituted (Miranda v. Abaya, 311 SCRA 617 (1999). The substitute candidate must be of the same political party as the original

candidate and must be duly nominated as such by the political party. It is not required that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated. (Sinaca v. Mula, 315 SCRA 266)

Only the candidate who had a valid certificate of candidacy may be substituted. In all the instances enumerated in Section 77 of the Omnibus Election Code, the

existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.

A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called “substitute” to file a “new” and “original” certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution. (Miranda v. Abaya, July 28, 1999)

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A certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for. (Miranda v. Abaya)

MIRANDA V. ABAYA (July 28, 1999)

A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called “substitute” to file a “new” and “original” certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution. (Miranda v. Abaya, July 28, 1999)

A certificate of candidacy filed beyond the period fixed by law is void, and the

person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for. (Miranda v. Abaya)

During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty seat, with petitioner got the higher votes

On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution. He prayed for the nullification of petitioner’s certificate of candidacy for being void ab initio because the certificate of candidacy of Jose “Pempe” Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due course. The First Division dismissed his petition but his motion for reconsideration was granted.

After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

N.B. In Luna, there was no verified petition to deny due course or cancel certificate of candidacy of Hans Roger, the original candidate, before the substitute filed her certificate of candidacy whereas in Miranda, there was, and indeed the Comelec denied due course and cancelled the certificate of candidacy before the substitution was filed.

Bar Problem (1995 Bar)

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Due to violence and terrorism attending the casting of votes in a municipality in Lanao del Sur during the last 8 May 1995 elections, it became impossible to hold therein free orderly and honest elections. Several candidates for municipal positions withdrew from the race. One candidate for Mayor petitioned the COMELEC for the postponement of the elections and the holding of special elections after the causes of such postponement or failure of elections shall have ceased.

1. A person who was not a candidate at the time of the postponement of the elections

decided to run for an elective position and filed a certificate of candidacy prior to the special elections. May his certificate of candidacy be accepted? Explain.

2. Suppose he ran as a substitute for a candidate who previously withdrew his

candidacy, will your answer be the same? Explain.

ANSWER:

1. No, his certificate of candidacy cannot be accepted. Under Section 75 of the Omnibus Election Code, as a rule in cases of postponement or failure of election no additional certificate of candidacy shall be accepted.

2. No, the answer will be different. Under Section 75 of the Omnibus Election Code,

an additional certificate of candidacy may be accepted in cases of postponement or failure of election if there was a substitution of candidates; but the substitute must belong to and must be endorsed by the same party. (UP LAW CENTER)


The Vice-Mayor of a municipality filed his certificate of candidacy for the same office in the last elections. The Municipal Mayor was also running for re-election. Both were official candidates of the same political party. After the last day for the filing of certificates of candidacy, the Mayor died.

Under these facts - 1. Can the Vice Mayor succeed to the office of Mayor pursuant to the provisions of

the Local Government Code? Explain. 2. Is there any legal impediment to the Vice-Mayor to replace the reelectionist Mayor

who died? Explain.

ANSWER; 1. Yes, the vice mayor can succeed to the office of mayor. Under Section 44 of the

Local Government Code, he stands next in line to the office of mayor in case of a permanent vacancy in it.

2. There is no legal impediment to the vice mayor running as mayor to replace the

mayor who died under Section 77 of the Omnibus Election Code, if a candidate dies after the last day for filing certificates of candidacy, he may be replaced by a person belonging to his political party. However, it is required that he should first withdraw his Certificate of Candidacy for Vice-Mayor and file a new Certificate of Candidacy for Mayor.

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SEC. 78, (OEC) Petition to deny due course to or cancel a Certificate of Candidacy

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

Related Statute: Sec. 7, R.A. No.6646

Section 7. Petition to Deny Course To or Cancel a Certificate of Candidacy. - The procedure hereinabove provided (in R.A. No. 6646, Section 5, relating to

nuisance candidates) shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

There are two instances where a petition questioning the qualifications of a registered

candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit:

1) Before election, pursuant to Section 78 thereof 2) After election, pursuant to Section 253 thereof (petition for quo warranto) Under Rule 23 of the 1993 Comelec Rules of Procedure, a petition to deny due

course to or cancel a certificate of candidacy shall be heard summarily after due notice.

There can be no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy, in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. (Miranda v. Abaya, July 28, 1999)

While there is no dispute as to whether or not a nominee of a registered or

accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. (Miranda v. Abaya, July 28, 1999)

Material Representation:

The false representation must pertain to a material matter although the law does not specify what would be considered as a “material representation,” the Court has interpreted this phrase in a line of decisions applying Section 78 of the Omnibus Election Code.

The Comelec has jurisdiction to deny due course to or to cancel a certificate of candidacy and to determine whether a false representation as to material facts was made in the certificate of candidacy, that will include, among others, the residence of the candidate. (Domino v. Comelec, 310 SCRA 546 (1999).

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A candidate’s statement in her certificate of candidacy for the position of governor of Leyte that she was a resident of Kananga, Leyte when this was not so constitute a ground for her cancellation of a certificate of candidacy. (Abella v. Larrazabal, 180 SCRA 509 (1989); Abella v. Comelec, 201 SCRA 253 (1991)

In the case at bar, what is involved is a false statement concerning a candidate’s

qualification for an office for which he filed the certificate of candidacy. He stated in his certificate of candidacy that he had been a resident of Oras, Eastern Samar for “two years” at the time he filed such certificate. That is not true. This is a misrepresentation of a material fact justifying the cancellation of petitioner’s certificate of candidacy. (Coquilla v. Comelec, G.R. No. 151914, July 31, 2002.

A candidate’s statement in his certificate of candidacy that he was a “natural-born” Filipino when in fact he had become an Australian citizen constitutes a ground for the cancellation of his certificate of candidacy. (Labo v. Comelec, 211 SCRA 297 (1992).

Where the petition for disqualification was filed beyond the twenty-five period required in Section 78, OEC, it is clear that it was filed out of time. Private respondent filed his certificate of candidacy on November 19, 1987 and petitioner filed the petition for disqualification against him on January 22, 1988. The petition for the disqualification of private respondent could not be treated as a petition for quo warranto under Section 253, OEC, as it was premature, considering that the petition for disqualification was filed on January 22, 1988 but private respondent was proclaimed Governor only on March 3, 1988. (Aznar v. Comelec, 185 SCRA 703 (1990).

JURISDICTION:

Where the petition for disqualification was filed beyond the twenty-five period required in Section 78, OEC, it is clear that it was filed out of time. Private respondent filed his certificate of candidacy on November 19, 1987 and petitioner filed the petition for disqualification against him on January 22, 1988. The petition for the disqualification of private respondent could not be treated as a petition for quo warranto under Section 253, OEC, as it was premature, considering that the petition for disqualification was filed on January 22, 1988 but private respondent was proclaimed Governor only on March 3, 1988. (Aznar v. Comelec, 185 SCRA 703 (1990).

SECTION 78 OF THE OMNIBUS ELECTION CODE

Section 78 deals exclusively with a petition to deny due course to a certificate of candidacy on the ground that a material representation in the contents of the certificate under Section 74 is false while under Section 68, it deals with a petition to disqualify a candidate for other violations of the election code as specified in said section, and against a candidate who is a permanent resident or immigrant of a foreign country. The latter does not specify a period within which to file the petition.

PROPAGANDA

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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;

Section 82. Lawful election propaganda

R.A. 9006, (FAIR ELECTION PRACTICES ACT)

(AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES.)

Approved: February 12, 2001. Sec. 3 (R.A. 9006). Lawful Election Propaganda. - Election propaganda whether on

television, cable television, radio, newspaper or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties, or organization participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections.

FOR THE PURPOSE OF THIS ACT, ELECTION PROPAGANDA SHALL INCLUDE:

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one-half inches in width and fourteen inches in length;

3.2. Handwritten or printed letters urging voters to vote for or against any particular

political party or candidate for public office.

3.3 Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four hours after said meeting or rally;

3.4 Paid advertisements in paint or broadcast media: Provided, That the

advertisements shall follow the requirements set forth in Section 4 of this Act; and 3.5. All other forms of election propaganda not prohibited by the Omnibus Election

Code or this Act.

PROPAGANDA:

4.1 Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper stickers, streamers, sample list of candidates or any published or printed political matter and any broadcast of election propaganda by television or radio for or against a candidate or group of

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candidates to any public office shall bear and be identified by the reasonably legible or audible words “political advertisement paid for,” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired;

4.2 If the broadcast is given free of charge by the radio or television station, it shall be identified by the words “airtime for this broadcast was provided free of charge by” followed by the true and correct name and address of the broadcast entity;

4.3 Print, broadcast, or outdoor advertisements donated to the candidate or political

party shall not be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as provided in Subsection 6.3 hereof.

SECTION 5, ELECTION SURVEYS 5.1. Election surveys refer to the measurement of opinions and perceptions of the

voters as regards a candidate’s popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters’ preference for candidates or publicly discussed issues during the campaign period.

5.4. Surveys affecting national candidates shall not be published (15) days before an

election and surveys affecting local candidates shall not be published seven (7) days before an election.

The provision of Section 5.4 prohibiting the publications of surveys within specified periods is invalid because: (1) it imposes a prior restrain on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Weather Station v. Comelec, G.R. No. 147571, May 5, 2001.)

5.5 Exit polls may only be taken subject to the following requirements: a) Pollsters shall not conduct their surveys within (50) meters from the polling place, whether said surveys is taken in a home, dwelling place and other places; b) Pollsters shall wear distinctive clothing; c) Pollsters shall inform the voters that they may refuse to answer; and d) The result of the exit polls may be announced after the closing of the polls and on

election day, and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend.

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. (ABS-CBN v. Comelec, January 28, 2000)

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The results of the survey are announced to the public, usually through the mass media,

to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. (ABS-CBN v. Comelec, January 28, 2000)

Q. May the Comelec in the exercise of its powers, totally ban exit polls? A.Holding exit polls and disseminating their results through mass media constitute an

essential part of the freedoms of speech and of the press. Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. (ABS-CBN v. Comelec, G.R. No. 133486, January 28, 2000.)

SEC. 6,R.A. 9006 (EQUAL ACCESS TO MEDIA, TIME & SPACE xxx xxx xxx

6.6. Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a candidate or political party shall not use his/her time or space to favor any candidate or political party.

6.7. No movie, cinematograph or documentary portraying the life or biography of a

candidate shall be publicly exhibited on a theater, television station or any public forum during the campaign period.

6.8. No movie, cinematograph or documentary portrayed by an actor or movie

personality who is himself a candidate shall likewise be publicly exhibited in a theater or any public forum during the campaign period.

Sec. 9, R.A. 9006, Posting of Campaign Materials

The Comelec may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.

Candidates may post any lawful propaganda material in private places with the

consent of the owner thereof, and in public places or property which shall be allocated equitably and impartially among the candidates.

Propaganda Prohibited:

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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.

EXPENDITURES;

Sec. 97 (OEC) 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 his campaign manager, agent or representatives, or any person acting on 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 collection on Sundays and/or other designated collection days, are excluded from this prohibition.

Sec. 100 (OEC) was amended by Section 13, R.A. 7166 Section 13 (R.A. 7166) Authorized Expenses of Candidates and Political Parties. - The aggregate amount that a candidate or registered political party may spend for

election campaign shall be as follows: a) For candidates. - Ten pesos (P10,00) for President and Vice-President; and for

other candidates, Three pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy; Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five pesos (P5.00) for every such voter; and

b) For political parties. - Five pesos (5.oo) for every voter currently registered in the constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in

kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission, shall not be subject to the payment of any gift tax.

Section 107 (OEC) was repealed by Section 14 of R.A. 7166 Section 14 (R.A. 7166) 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.

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EFFECT OF FAILRE TO FILE STATEMENT

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. Section 14 (R.A. 7166)

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. Section 14 (R.A. 7166)

Except candidates for elective barangay office, failure to file the statements or reports in connections with sectoral contributions and expenditures as 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 days (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 of 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 statement 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 (60,000.00) in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

Applicability to Withdrawn Candidate

The term “every candidate” in Section 14 of R.A. 7166, requiring “every candidate” to file his statement of contributions and expenditures, refers not only to a candidate who pursued his campaign but also to one who withdrew his candidacy, since the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same.

Petitioner’s withdrawal of his candidacy did not extinguish his liability for

administrative fine pursuant to Section 14 of R.A. 7166, for failure to file his statement of contributions and expenditures, since Section 73 of the Omnibus Election Code provides that the filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. (Pilar v. Comelec, 245 SCRA 759 (1995)

PILAR V. COMELEC, 245 SCRA 759 ( 1995)

The term “every candidate” in Section 14 of R.A. 7166, requiring “every candidate” to file his statement of contributions and expenditures, refers not only to a candidate who pursued his campaign but also to one who withdrew his candidacy, since the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same.

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Petitioner’s withdrawal of his candidacy did not extinguish his liability for

administrative fine pursuant to Section 14 of R.A. 7166, for failure to file his statement of contributions and expenditures, since Section 73 of the Omnibus Election Code provides that the filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. (Pilar v. Comelec, 245 SCRA 759 (1995)

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 certificate of candidacy three days after this filing. Petitioner posits that "it is . . . clear from the law that the candidate must have entered the political contest, and should have either won or lost".

HELD:

Petitioner's argument is without merit. Section 14 of R. A. No. 7166 states that "every candidate" has the obligation to file

his statement of contributions and expenditures. 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.

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.

It is noteworthy that Resolution No. 2348 even contemplates the situation where a

candidate may not have received any contribution or made any expenditure. Such a candidate is not excused from filing a statement, and is in fact required to file a statement to that effect. Under Section 15 of Resolution No. 2348, it is provided that "if a candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact."

Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 of the Omnibus Election Code of the Philippines, it is provided that "the filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative fine.

Purpose of the filing of Statement

The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate. One way of attaining such objective is to pass legislation regulating contributions and expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the elections. Thus, laws and regulations prescribe what contributions are prohibited, or unlawful, and what expenditures are authorized or lawful. (Pilar v. Comelec, 245 SCRA 759 (1995)

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SUFFRAGE:

Section 1, Art. V (Constitution) Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

Related Statute: R.A 8189

Section 8 (R.A. 8189) Systems of Continuing Registration of Voters. - The personal filing of application of registration of voters shall be conducted daily in

the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.

Special registration Comelec cannot be compelled to conduct a special registration of new voters before

the May 14, 2001 general elections, who allegedly failed to register on or before the December 27, 2000 deadline set by Comelec because R.A. NO. 8189, Section 8, provides that no registration shall be conducted during the period starting one hundred twenty-days before a regular election. Although R.A. 8189, Section 28 authorizes the Comelec to designate other dates for certain pre-election acts when it is no longer possible to observe the periods and dates prescribed by law, this provision comes into play where the pre-election acts are susceptible of performance within the available period prior to election day.

Where the Comelec emphasized the “operational impossibility” of conducting a

special registration of voters before the May 14, 2001 election, it could not be compelled to do so, since the law does not require that the impossible be done. Petitioners 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 the speck in their eyes. Impuris minibus nemo accedat curiam. Let no one come to court with unclean hands. Well-entrenched is the rule that the law aids the vigilant and not those who slumber on their rights. Vigilantis sed non dormientibus jura in re subveniunt. (Akbayan v. Comelec, March 26, 2001)

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

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Philippines, service in the Armed Forces of the Philippines, the National Police Force, 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 election shall possess such qualifications, may register as a voter.

A citizen may leave the place of his birth to look for greener pastures, as the saying

goes, to improve his lot and that, of course, includes study in other places, practice of his avocation, re-engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may decided to return to his native town, to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities.

So, they are here registered as voters as he has qualifications to be one, and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsake him.

This may be the explanation why the registration of a voter in a place other than his

residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence of origin.

In other words, “residence” in this provision refers to two residence qualifications: “residence” in the Philippines and “residence” in the place where he will vote. As far as

residence in the Philippines is concerned, the word “residence” means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident

of a place for six months and he is allowed to vote there… (Bernas citing Faypon v. Quirino, 96 Phil 294 (1954)END OF OMNI 2

START OF OMNI 3

Section 11. (R.A.8189) DISQUALIFICATION.-

THE FOLLOWING SHALL BE DISQUALIFIED FROM REGISTERING

a) Any person who has been sentenced by final judgment to suffer imprisonment of not less than one (1) year, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence.

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

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c) Insane or incompetent persons declared as such by competent authority unless subsequently declared by proper authority that such person is no longer insane or incompetent. Section 14. (R.A. 8189) ILLITERATE or DISABLED APPLICANT

Any illiterate person may register with the assistance of the Election Officer or any member of an accredited citizen’s arms. The Election Officer shall place such illiterate person under oath, ask him questions, and record the answers given in order to accomplish the application form in the presence of the majority of the members of the board. xxx xxx xxx

Related provision;

The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. (Section 2 (2), Article V, Constitution)

Illiterate person refers to one who cannot by himself prepare an application for registration because of his inability to read and write. (Sec. 3 (e), R.A. 8189)

“A”, while of legal age and of sound mind, is illiterate. He has asked your advice on how he can vote in the coming election for his brother, who is running for mayor. This will be the first time “A” will vote and he has never registered as a voter before. What advice will you give him on the procedure he needs to follow in order to be able to vote?

The Constitution provides that until Congress shall have provided otherwise, illiterate and disabled voters shall be allowed to vote under existing laws and regulations. (Art. V. Sec. 2) It is necessary for any qualified voter to register in order to vote.

LAUGHTER;

1. My advice to A being an illiterate voter is for him to be accompanied to the Comelec before the election and ask clearance that A is an illiterate. That during election, A should be accompanied by an authorized person so that he can vote and write his own choice for an official to be elected or be voted. 2. It state that the illiterate has the right to vote provided hes a legal of age and can communicate First the requirement to facilitate him by the chair, Second He ables and understand and by using his thumb Third Accompanied by the chair.

Section 15. (R.A. 8189) ELECTION REGISTRATION BOARD

The board shall be composed of the Election Officer as chairman and as members, the public school official most senior in rank and the local civil registrar, or in his absence, the city or municipal treasurer.

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In case of disqualification of the Election Officer the Commission shall designate an acting Election Officer who shall serve as Chairman of the Election Registration Board. In case of disqualification or non-availability of the Local Civil Registrar or the Municipal Treasurer, the Commission shall designate any other appointive civil service official from the same locality as substitute.

No member of the Board shall be related to each other or to any incumbent city or municipal elective official within the fourth civil degree of consanguinity or affinity. If in succeeding elections, any of the newly elected city or municipal officials is related to a member of the Board within the fourth civil degree of consanguinity or affinity, such member is automatically disqualified to preserve the integrity of the Election Registration Board.

Every registered party and such organizations as may be authorized by the Commission shall be entitled to a watcher in every registration board. Section 18. (R.A. 8189), Chalenges to Right to RegisterAny voter, candidate or representative of a registered political party may challenge in writing any application for registration, stating the grounds therefore. 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.

xxx xxx xxxSection 27. (R.A. 8189) 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;

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

f) Any person who has lost Filipino citizenship.

Section 2, Art. V (Constitution) The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

Intent of the framers of the Constitution

The Commission intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified as voters for the first time. (Lewis v. Comelec, August 4, 2006)

In a nutshell, Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying that a non resident may, as an exception to the residency prescription in the preceding section, be allowed to vote. (Loida Nicolas-Lewis, et. al v. Comelec, August 4, 2006)The Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

R.A. 9189 extends to Filipinos who have dual citizenship Petitioners are successful applicants for recognition of Philippine citizenship under R.A.9225 which accords to such applicants the right of suffrage, among others. Petitioners, long before the May 2004 elections, sought registration and certification as “overseas absentee voter” only to be advised by the Philippine Embassy in the United States that, per a Comelec letter to the DFA, they have yet no right to vote in such elections owing to their lack of the one year residence requirement prescribed by the Constitution.

ISSUE:

Whether or not petitioners and others who might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.

HELD:

R.A. 9225 expanded the coverage of Overseas Absentee Voting. The irresistible conclusion is that “duals” may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters.

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The expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of “duals”. This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225. It is very likely that a considerable number of those unmarried children below 18 years of age had never set foot in the Philippines

Now then, if the next generation of “duals” may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of R.A. 9225, then there is neither no rhyme nor reason why the petitioners and other present day “duals”, provided they meet the requirements in Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee voter.

R.A. 9189 Overseas Absentee Voting Act of 2003

Section 4. Coverage. - All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. (R.A. 9189)

Section 5. Disqualifications. –

The following shall be disqualified from voting under this Act: (R.A. 9189)a) Those who have lost their Filipino citizenship in accordance with Philippine laws; b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; c) Those who have been convicted in a final judgment of not less than one (1) year, including those who have been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code;

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act.

e)Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority. Notably Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However, Section 5(d) respecting Filipino immigrants and permanent residents in another country opens an exception and qualifies the disqualification rule.

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Section 5 (d) specifically disqualifies an immigrant or permanent resident who is “recognized as such in the host country: because immigration or permanent residence in another country implies renunciation of one’s residence in his country of origin..

However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes and affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that “all citizens of the

Philippines not otherwise disqualified by law” must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting.

The execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5 (d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin.Thus, it is not correct to say that the execution of the affidavit under Section 5 (d) violates the Constitution that proscribes “provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise.” (Macalintal v. Comelec, July 10, 2003)

Ordinarily, an absentee is not a resident and vice-versa; a person cannot be at the same time, both a resident and an absentee. However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. ( Macalintal v. Comelec, July 10, 2003)

Sec. 182 (OEC) Emergency ballots

No ballots other than the official ballots shall be used or counted, except in the event of failure to receive the official ballots on time, or where there are no sufficient ballots for all registered voters or where they are destroyed at such time as shall render it impossible to provide other official ballots, in which cases the city or municipal treasurer shall provide other ballots which shall be as similar to the official ones as circumstances will permit and which shall be uniform within each polling place. The treasurer shall immediately report such action to the Commission.

The municipal treasurer shall not undertake the preparation of the emergency ballots unless the political parties, candidates and the organizations collectively authorized by the Commission to designate watchers have been sufficiently notified to send their representatives and have agreed in writing to the preparation and use of emergency ballots.

Sec. 190. Voting hours

The casting of votes shall start at seven o’ clock in the morning and shall end at three o’ clock in the afternoon, except when there are voters present within thirty meters in front

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of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption. The poll clerk shall, without delay, prepare a complete list containing the names of said voters consecutively numbered, and the voters so listed shall be called to vote by announcing each name repeatedly three times in the order in which they are listed. Any voter in the list who is not present when his name is called out shall not be permitted to vote.

Sec. 197. Spoiled ballots

If a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used, he shall surrender it folded to the chairman who shall note in the corresponding space in the voting another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording said serial number in the corresponding spaces in the voting record.

If the second ballot is again spoiled or defaced in such a way that it cannot lawfully be used, the same shall be surrendered to the chairman and recorded in the same manner as the first spoiled or defaced and recorded in the same manner as the first spoiled or defaced ballot. However, no voter shall change his ballot more than twice.

The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word “spoiled” and signed by the board of election inspectors on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots. Sec. 199. Challenge of illegal voters

a) Any voter or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter; and

b) No voter shall be required to present his voter’s affidavit on election day unless his identity is challenged. His failure or inability to produce his voter’s affidavit upon being challenged shall not preclude him from voting if his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters or if he is identified under oath by a member of the board of election inspectors and such identification shall be reflected in the minutes of the board. Sec. 200. Challenge based on certain illegal acts

Any voter or watcher may challenge any voter offering to vote on the ground that the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; that he has made or received a promise to influence the giving or withholding of any such vote or that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election.

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The challenged person shall take a prescribed oath before the board of election inspectors that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenge shall be dismissed and the challenged voter shall be allowed to vote but in case of his refusal to take such oath, the challenge shall be sustained and he shall not be allowed to vote.

Sec. 204. Disposition of unused ballots at the close of the voting hours

The chairman of the board of election inspectors shall prepare a list showing the number of unused ballots together with the serial numbers. This list shall be signed by all the members of the board of election inspectors, after which all the unused ballots shall be torn halfway in the presence of the members of the board of election inspectors.

Sec. 207. Excess ballots

Before proceeding to count the votes the board of election inspectors shall count the ballots in the compartment for valid ballots without unfolding them or exposing their contents, except so far as to ascertain that each ballot is single, and compare the number of ballots in the box with the number of voters who have voted. If there are excess ballots, they shall be returned in the box and thoroughly mixed therein, and the poll clerk, without seeing the ballots and with his back to the box shall publicly draw out as many ballots as may be equal to the excess and without unfolding them, place them in an envelop which shall be marked “excess ballots” and which shall be sealed and signed by the members of the board of election inspectors.

The envelope shall be placed in the compartment for valid ballots, but its contents shall not be read in the counting of votes. If in the course of the examination ballots are found folded together before they were deposited in the box, they shall be placed in the envelope for excess ballots. In case ballots with their detachable coupons be found in the box, such coupons shall be removed and deposited in the compartment for spoiled ballots, and the ballots shall be included in the file of valid ballots. If ballots with words “spoiled” be found in the box, such ballots shall likewise be placed in the compartment for spoiled ballots.

Sec. 208. Marked ballots

The board of election inspectors shall then unfold the ballots and determine whether there are any marked ballots, and, if any be found, they shall be placed in an envelope labeled “marked ballots” which shall be sealed and signed by the members of the board of election inspectors and placed in the compartment for valid ballots and shall not be counted. A majority vote of the board of election inspectors shall be sufficient to determine whether any ballot is marked or not.

Non-official ballots which the board of election inspectors may find, except those which have been used as emergency ballots, shall be considered as marked ballots. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. (Abs-cbn v. Comelec, January 28, 2000)

Sec. 211. (OEC) Rules for the appreciation of ballots

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In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters’ will: 1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office. 2. Where only the first name of a candidate is written on the ballot, which when read, has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. 3. In case the candidate is a woman who uses her maiden or married surname or both and there is another candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent.

Where only the maiden surname of the candidate appears, the vote is valid; but a ballot where only the nickname of the candidate appears cannot be counted in her favor. (Conui-Omega v. Samson, 9 SCRA 493) Congressional candidate wrote on her certificate of candidacy “Rosette Yniguez Lerias.” Ballots containing “Yniguez R,” “Yniguez Roset” or “R. Yniguez” were properly credited to the candidate. (Lerias v. HRET, 202 SCRA 808 (1991)

4. When two or more words are written on the same line on the ballot, all of which are the surnames of two or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least one year in which case it shall be counted in favor of the latter. When two or more words are written on different lines on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorizes the election of more than one and there are the same number of such surnames written as there are candidates with that surname, the vote shall be counted in favor of all the candidates bearing the surname.5. When on the ballot is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter.

6. When two words are written on the ballot, one of which is the first name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either.

7. A name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor.

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The idem sonans rule is that if the name as spelled in the ballot, although different from its orthographically correct spelling, sounds practically the same when pronounced, according to our methods of pronunciation, it is a sufficient designation of the individual to whom it refers, and the error of the writer must not be taken into account. But if the ballot is so defective that the intention of the voter cannot be determined, it must be rejected. (Mandac v. Samonte, 49 Phil 284 (1926).

Examples of idem sonans

Candidate’s name is Serapion Adeser but what was written was Serafiur Adisr or Serapion Adeser is valid which come within the rule of idem sonans. (Serapion Adeser v. Mateo Tago, March 1, 1929) Candidate’s name is Arellano Alkonga but what was written in the ballots are: “Arellano Ala”, in another ballot was “Arellano Alce” or “Arellano Alco” are admitted within idem sonans rule except “Arilia Alegr”, for “Alegr” is not idem sonans with the surname Alkonga. (Ramon Deles v. Arellano Alkonga, March 25, 1929).

The word “Comga” in a ballot is idem sonans with “Conui-Omega,” where it was prepared by a poor writer who might have intended the letter C as initial for the candidate’s middle name “Conui,” connected with the word “Omga” which might have been intended for Omega. Words “C. Omuga” and “C. Omga” are idem sonans with Conui-Omega, “Sansor is idem soans with “Samson.” (Conui-Omega v. Samson, 9 SCRA 493 (1963),

Bar question: (94 bar)

What is your understanding of the principle of idem sonans as applied in the Election Law?

Answer:

Under Rule No. 7 of the rules for the appreciation of ballots in Section 211 of the Omnibus Election Code, the idem sonans rule means that a name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor.

( alternative answer )

The term means sounding the same or nearly alike. The rule is based on the idea that the misspelling of a name or lack of skill in writing should not be taken as a ground for rejecting the votes apparently intended for a candidate, so long as the intention of the voter appears to be clear. The Supreme Court has ruled that the principle of idem sonans is liberally construed. (Corpuz v. Ibay, 84 Phil 184 ( 1949)

8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is not a candidate shall be considered stray, except when it is used as a means to identify the voter, in which case, the whole ballot shall be void.

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If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency.Where the name of a candidate is not written in the proper space in the ballot but is preceded by the name of the office for which he is a candidate, the vote should be counted as valid for such candidate. Such rule stems from the fact that in the appreciation of the ballot, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty. (Farin v. Gonzales, 53 SCRA 237 (1973); Bautista v. Castro, 206 SCRA 198 (1992). The fact that the voter wrote “Xavier” and “Baguis” on the first and second lines for senators, respectively, and that they are also voted for councilor on the first and seventh lines for councilors, does not invalidate the ballot as marked, considering that Xavier and Baguis were candidates for councilors. The votes for Xavier and Baguis for Senator are stray votes. (Juliano v. Court of Appeals, 20 SCRA 809 (1967).9. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter. 10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of the surname accompanying the correct first name of a candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter. Although erasures appear on ballots, if it is clearly shown that it was the voter’s intention to vote for the candidate whose name appears to have been written over the one previously erased, hence the ballot is valid. (Mandac v. Samonte, 49 Phil. 284 (1926).

11. The fact that there exists another person who is not a candidate with the first name or surname of a candidate shall not prevent the adjudication of the vote of the latter. 12. Ballots which contain prefixes such as “Sr.,” “Mr.,” “Datu,” “Don,” “Ginoo,” “Hon.,” “Gob.” or suffixes like “Hijo,” “Jr.,” “Segundo,” are valid.

Bar question: (94 bar)

If a candidate for town mayor is an engineer by profession, should votes for him with the prefix “Engineer” be invalidated as “marked ballots”? No, ballot in which the name of a candidate for town mayor who is an engineer which is prefixed with “engineer” should not be invalidated as a marked ballot. Under Rule No. 12 of the rules for the appreciation of ballots, ballots which contain such prefixes are valid.

13. The use of the nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the name or

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surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname. The use of the initial of a nickname by which a candidate is popularly known in the place where he was a candidate, where that nickname appears in the sample ballot is valid. Thus, ballots bearing the words ‘D. Seno’ apparently referring to “Dado Seno” were valid in his favor because the “initial” can also apply to a nickname. (Gonzaga v. Seno, 7 SCRA 741 (1963). Writing words “Sampion” after the name of a candidate and “mabohay” after another candidate as an expression of affection and friendship does not render ballot marked. (Conui-Omega v. Samson, 9 SCRA 493 (1963). The use of the nickname of a candidate, without being accompanied by his surname is not a valid vote. (Katigbak v. Mendoza, 19 SCRA 543, (1967). A vote for “Danny F.” is valid since under the law if the nickname is unaccompanied by the name or surname of the candidate and it is the one by which he was generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname. (Ferrer v. Comelec, April 10, 2000).

14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot. Under this rule three kinds of votes are considered stray: (1) a vote containing initials only, (2) a vote which is illegible, and (3) a vote which does not sufficiently identify the candidate for whom it is intended.

The only error of the HRET is its ruling that if the votes are in initials only, they are to be considered stray votes if they do not sufficiently identify the candidate for whom the votes are intended. The first category of stray votes under this rule is not to be qualified by the third category in the sense that votes in initials only may be counted for a candidate provided that the initials would sufficiently identify the candidate voted for. Such construction of the rule fails to give meaning to the disjunctive conjunction OR separating the first category from the second, and the second from the third. (Villarosa v. HRET, Sep 14, 2000)

Ballots which contain only the initials of the candidate, upon positive proof that he was the candidate intended to be voted for, must be counted in his favor, and it is not necessary to prove the intention of the voter by his testimony. The fact that one of the names written in the ballot is illegible does not annul it as to those whose names are legible. (Mandac, v. Samonte, 49 Phil 284 (1926).

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Ballots with initials only, such as “ACM” on the first line one for councilors, even though it might correspond to the initials Asuncion Conui, is not valid. (Conui-Omega v. Samson, 9 SCRA 493 (1963).

The letters “MEND K.” on the space for vice-mayor cannot be credited as a vote for either Mendoza or Katigbak, the candidates for vice-mayor, since the voter’s intention is not clear. (katigbak v. Mendoza, 19 SCRA 543 (1967). 15. If on the ballot is correctly written the first name of a candidate but which a

different surname, or the surname of the candidate is correctly written but with a different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates.

16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid.

Ballots written with indelible pencil are legal and valid. (Mandac v. Samonte, 49 Phil.

284 (1926) The use of crayola in writing on the ballot does not invalidate it. (Juliano v. Court of

Appeals, 20 SCRA 809 (1967) 17. Where there are two or more candidates voted for in an office for which the law

authorizes the election of only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein.

18. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until authorized number is covered.

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered stray vote but it shall not invalidate the whole ballot. The stray vote is invalidated because there is no way of determining the real intention of the voter. (Cipriano Bautista v. Comelec, November 13, 1998) Voting names of non-candidates in the absence of evidence that these names were used as identifying marks does not render ballot marked. (Conui-Omega v. Samson, 9 SCRA 493 (1963). In the absence of evidence aliunde that names of non-candidates were intended for purposes of identification, the same shall be considered as stray votes, which shall not invalidate the whole ballot. (Geromo v. Comelec, 118 SCRA 165 (1982). Bar question: (94 bar)

What is a “stray ballot”

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Under Rule No. 19 of the rules for the appreciation of ballots in Section 211 of the Omnibus Election Code, stray ballot is one case in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself.

Although the Code does not provide for stray ballot, it is presumed that stray ballot refers to stray vote.

20. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process are totally null and void. 21. Circles, cross or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot.

Writing the word “Oki” on line 7 for councilors, indicating the voters desistance from voting further is not considered mark. (Conui-Omega v. Samson, 9 SCRA 493 (1963).Two short parallel lines an spaces where the voter did not vote merely indicate the voter’s desistance from voting and should not invalidate the ballot(Katigbak v. Mendoza,19 SCRA 543 (1967).

Light pencil shadings found on the lines, where no names of candidates were written on, were not marks but an indication on the part of the voter that he was not voting for any other candidate aside from those whose names he had already written on the ballot. These pencil shadings are similar to the circles, crosses or lines put on the spaces on which the voter has not voted to indicate his desistance from voting. (Juliano v. Court of Appeals, 20 SCRA 809 (1967)

22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate or in other parts of the ballot, traces of the letter “T,” “J,” and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot.

The placing of the small letter “x” between the word “Ramon” and the capital letters “M” and “L” ( which were the initials of the person voted for councilor) was simply an innocent writing on the part of the voter and not intended to mark the ballot. Juliano v. Court of Appeals, SCRA 809 (1967)

23. Any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is totally null and void.

A ballot written by two different hands is invalid. (Protection v. De Leon, 9 SCRA 472 (1963) 24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered a stray and shall not be counted but it shall not invalidate the ballot.

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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. (OEC, Sec. 72)

25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read them, the board of election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly.

26. The accidental tearing or perforation of a ballot does not annul it.

Where ballot was torn, without its upper portion, but there was no showing how it became torn, the ballot is valid. (Garcia v. Court of Appeals, 36 SCRA 582 (1970).

Completely torn ballots with the word “Spoiled” written at the back cannot be counted. (Lontoc v. Pineda, 64 SCRA 681 (1975).

27. Failure to remove the detachable coupon from a ballot does not annul such ballot.

A statutory provision that the coupon bearing the number of a ballot is to be detached at the time the ballot is voted is directory, and the failure of the election board to follow the provision of the law does not invalidate the votes. (Angeles v. Rodriguez, 46 Phil. 595 (1924).

28. A vote for the President shall also be a vote for the Vice-President running under the same ticket of a political party, unless the voter votes for a Vice-President who does not belong to such party.

This provision is modified by Section 4, Article VII of the Constitution which provides, “The President and the Vice-President shall be elected by direct vote of the people.”

Candidate’s name in improper spaceName of candidate for vice-mayor written in the wrong space but sufficiently described and located to indicate the voter’s intent. Such as writing “visi” meaning “vice,” should be counted for the vice-mayor. (Sarmiento v. Quemado, 5 SCRA 438 (1962)

Under the “neighborhood rule” even if the word “Danilo Ferrer” was written on the space provided for Kagawas, where the space for Punong Barangay, which he was running for, was vacant, the vote can be counted in his favor. (Ferrer v. Comelec, April 10, 2000).

Section 215. Board of election inspectors to issue a certificate of the number of votes polled by the candidates for an office to the watchers.

After the announcement of the results of the election and before leaving the polling place, it shall be the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the watchers. All the members of the board of election inspectors shall sign the certificate. Amending statute: (Sections 16 and 17, R.A. 6646)

Section 16. Certificate of Votes. – After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the

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board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers. The certificate shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct, and the date and time issued, and shall be signed and thumb marked by each member of the board. Section 17. Certificate of Votes as Evidence. – The provisions of Sections 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be inadmissible in evidence to Prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of canvassers by at least two members of the board of election inspectors who issued the certificate: Provided, That failure to present any certificate of votes shall not be a bar to the presentation of other evidence to impugn the authenticity of the election returns.

Section 216 (OEC) Alterations and corrections in the election returns

Any correction or alteration made in the election returns by the board of election inspectors before the announcement of the results of the election in the polling place shall be duly initialed by all the members thereof.

After the announcement of the results of the election in the polling place has been made, the board of election inspectors shall not make any alteration or amendment in any of the copies of the election returns, unless so ordered by the Commission upon petition of the members of the board of election inspectors within five days from the date of the election returns concerned is opened by the board of canvassers, whichever is earlier. The petition shall be accompanied by proof of service upon all candidates affected.

However, if a candidate affected by said petition objects thereto, whether the petition is filed by all or only a majority of the members of the board of election inspectors and the results of the election would be affected by the correction sought to be made, the Commission shall proceed summarily to hear the petition. If it finds the petition meritorious and there are no evidence or signs indicating that the identity and integrity of the ballot box have been violated, the Commission shall order the opening of the ballot box. After satisfying itself that the integrity of the ballots therein has also been duly preserved, the Commission shall order the recounting of the votes of the candidates affected and the proper corrections made on the election returns, unless the correction sought is such that it can be made without need of opening the ballot box.

CANVASS AND PROCLAMATION

Section 221. (OEC) Board of canvassers

There shall be a board of canvassers for each province, city, municipality, and district of Metropolitan Manila as follows: a) Provincial board of canvassers. – The provincial board of canvassers shall be

composed of the provincial election supervisor or a senior lawyer in the regional

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office of the Commission, as chairman, the provincial fiscal, as vice-chairman, and the provincial superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members.

b) City board of canvassers. – The city board of canvassers shall be composed of the

city election registrar or a lawyer of the Commission, as chairman, the city fiscal and the city superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members.

c) xxx

d) Municipal board of canvassers. – The municipal board of canvassers shall be composed of the election registrar or a representative of the Commission, as chairman, the municipal treasurer, and the district supervisor or in his absence any public school principal in the municipality and one representative form each of the ruling party and the dominant opposition political party entitled to be represented, as members.

Related statue: (R.A. 6646, section 20)

Section 20. Board of Canvassers. – There shall be a board of canvassers for each province, city and municipality as follows:a) Provincial Board of Canvassers. – The provincial board of canvassers shall be

composed of the provincial election supervisor or a lawyer in the regional office of the Commission, as chairman, the provincial fiscal, as vice-chairman, and the provincial superintendent of schools, as member.

b) City Board of Canvassers. – The city board of canvassers shall be composed of the city election registrar or a lawyer of the Commission, as chairman, the city fiscal, as vice-chairman, and the city superintendent of schools, as member. In cities with more than one election registrar, the Commission shall designate the election registrar who shall act as chairman.

c) Municipal Board of Canvassers. – The municipal board of canvassers shall be composed of the election registrar or a representative of the Commission, as chairman, the municipal treasurer, as vice-chairman, and the most senior district school supervisor or in his absence a principal of the school district or the elementary school, as member.

The proceedings of the board of canvassers shall be open and public.

Ministerial body

The board of canvassers is a ministerial body enjoined by law to canvass all votes on election returns submitted to it in due form, and its powers are limited generally to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the fact of the returns before them, and then declaring or certifying the result so ascertained. (Abes v. Comelec, 21 SCRA 1252 (1967).

Section 222 (OEC) Relationship with candidates and other members

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The chairman and the members of the board of canvassers shall not be related within fourth civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the same board. Section 226 (OEC) Incapacity and substitution of members of boards of Canvassers

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman, the Commission shall designate the provincial or city fiscal to act as chairman. Likewise, in case of non-availability, absence, disqualification due to relationship, or incapacity for any cause, of such designee, the next ranking provincial or city fiscal shall be designated by the Commission and such designation shall pass to the next in rank until the designee qualifies.

With respect to the other members of the board of canvassers, the Commission shall appoint as substitute the provincial, city or municipal officers of other governmental agencies in the province, city or municipality, as the case may be, and with respect to the representatives of the accredited political parties, the Commission shall appoint as substitutes those nominated by the said political parties.

Related statute: R.A. 6646, Section 21

Section 21. Substitution of Chairman and Members of the Board of Canvassers. –

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman, the Commission shall appoint as substitute, a ranking lawyer of the Commission. With respect to the other members of the board, the Commission shall appoint as substitute the following in the order named: the Provincial Auditor, the Registrar of Deeds, the Clerk of Court nominated by the Executive Judge of the Regional Trial Court, and any other available appointive provincial official in the case of the provincial board of canvassers; the officials in the city corresponding to those enumerated, in the case of the city board of canvassers; and the Municipal Administrator, the Municipal Assessor, the Clerk of Court nominated by the Executive Judge of the Municipal Trial Court, or any other available appointive municipal officials, in the case of the municipal board of canvassers.

PRE-PROCLAMATION CONTROVERSIES

Sec. 241 (OEC) 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 secs. 233-236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

Pre-proclamation proceedings are summary in nature. (Padilla v. Comelec, 137 SCRA 429 (1985)

The general rule is that a pre-proclamation case before the Comelec, is logically, no longer viable after a proclamation has been made. However, this rule admits of

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exceptions, as when the proclamation is null and void. (Mayor Salip Jainal v. Comelec, March 7, 2007) The proclamation of petitioner is void for three reasons:

1) It was based on a canvass that should have been suspended with respect to the contested election returns; 2) It was done without prior Comelec authorization which is required in view of the unresolved objections of Talib to the inclusion of certain returns in the canvass; 3) It was predicated on a canvass that included unsigned election returns involving such number of votes as will affect the outcome of the election. (Mayor Salip Jainal v. Comelec, March 7, 2007)

Sec. 242 (OEC) Commission’s exclusive jurisdiction of pre-proclamation controversies.

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

Sec. 3, Article IX-C (Constitution)

The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.Jurisdiction

The Constitution clearly mandates that pre-proclamation controversies must be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Arbonida v. Comelec, March 14, 2007)

Simply put, the Commission en banc does not have jurisdiction in the first instance, whether original or appellate, over election cases, pre-proclamation controversies and incidents thereof. When such disputes are filed before or elevated to the Commission, they have to be heard and adjudicated first at the division level. (Balindong v. Comelec, October 16, 2003) A pre-proclamation controversy may be raised by any candidate or by any registered political party, organization, or coalition of political parties before the board of canvassers or directly with the Commission. (Rule 27, Comelec Rules of Procedure)

Related statute:

Section 15, R.A. 7166 - Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Member of the House of Representatives. -

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For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body muto proprio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with Section 19 hereof. Any objection on the election returns, before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial boards of canvassers or district boards of canvassers in Metro Manila, shall be specifically noted in the minutes of their proceedings. Although pre-proclamation contests are not allowed in elections for President, Vice-President, Senator and Member of the House of Representatives, the correction of “manifest errors in the certificate of canvass of election returns” is allowed. (Chavez v. Comelec, 211 SCRA 315 (1992)

Section 243, (OEC) Issues that may be raised in pre-proclamation controversy. a) Illegal composition or proceedings of the board of canvassers; b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

Bar problem: (88 bar)

In election law, what is a pre-proclamation controversy? Where may it be litigated with finality? After the ultimate winner has been duly proclaimed, does the loser still have any remedy to the end that he may finally obtain the position he aspired for in the election? Explain.

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 secs. 233-236 of the Omnibus Election Code

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in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (OEC, Sec 241)

The COMELEC has exclusive jurisdiction of all pre-proclamation controversies. Its decision becomes executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the Supreme Court. (OEC, sec 246)

A loser may still bring an election contest concerning the election returns, and qualifications of the candidate proclaimed. In the case of elective barangay officials, the contest may be filed with the municipal trial courts; in the case of elective municipal officials, in the Regional Trial Court; in the case of elective provincial and city officials, in the COMELEC; in the case of Senators or Congressmen, in the Senate or House of Electoral Tribunals; and in the case of the President and Vice-President, in the Presidential Electoral Tribunal. Bar problem: (97 bar)

State how (a) pre-proclamation controversies, on the one hand, and (b) election protest, on the other, are initiated, heard and finally resolved.

(A) Pre-Proclamation ControversiesQuestions affecting the composition or proceedings of the board of canvassers maybe initiated in the board of canvassers or directly with the Commission on Elections. Questions involving the election returns and the certificates of canvass shall be brought in the first instance before the board of canvassers only. (Section 17, Republic Act No. 7166.The board of canvassers should rule on the objections summarily. (Section 20, Republic Act No. 7166.

Any party adversely affected may appeal to the Commission on Elections. (Section 20, RA 7166) The decision of the Commission on Election may be brought to the Supreme Court on certiorari by the aggrieved party. (Section 7, Article IX-A of the Constitution)

All pre-proclamation controversies pending before the Commission on Elections shall be deemed terminated at the beginning of the term of the office involved and the rulings of the board of canvassers shall be deemed affirmed, without prejudice to the filing of an election protest. However, the proceedings may continue when on the basis of the evidence presented so far, the Commission on Elections or the Supreme Court determines that the petition appears to be meritorious. (Section 16, RA 7166)

(B) Election ContestsAn election protest is initiated by filing a protest containing the following allegations:

1. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election; 2. The protestee has been proclaimed; and

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3. The date of the proclamation. (Miro v. Commission on Elections, 121 SCRA 466) The following have jurisdiction over election contests:

1. Barangay officials - inferior Court;2. Municipal officials - Regional Trial Court; 3. Regional, provincial, and city officials - Commission on Election, (Section 2 (2), Art IX-C of the Constitution);4. Congressmen - House of Representatives Electoral Tribunal.5. Senators - Senate Electoral Tribunal (Section 17, Article VI of the Constitution

6. President and Vice President - Supreme Court (Section 4, Article VII of the Constitution.

The decision of the inferior court in election contests involving barangay officials and of the Regional Trial Court in election contests involving municipal officials are appealable to the Commission on Elections. (Section 2 (2), Article IX-C of the Constitution.) The decision of the Commission on Elections may be brought to the Supreme Court on certiorari.The decision of the Commission on Elections in election contests involving regional, provincial and city officials may be brought to the Supreme Court on certiorari, (Section 7, Article IX-A and Section 2 (2), Article IX-C of the Constitution. The decisions of the Senate Electoral Tribunal and of the House of Representatives Electoral Tribunal may be elevated to the Supreme Court on certiorari if there was grave abuse of discretion. ( Lazatin v. Commission on Elections, 168 SCRA 391)


Give three issues that can be properly raised and brought in a pre-proclamation contestAccording to Section 243 of the Omnibus Election Code, the following issues can be properly raised. a) The composition or proceedings of the board of canvassers are illegal; b) The canvassed election returns are incomplete, contain material defects, appeared to be tampered with, or contain discrepancy in the same returns or in other authenticated copies; c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

d) Substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. However, according to Section 15 of the Synchronized Election Law, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass with respect to the positions of President, Vice-President, Senator and Member of the House of Representatives. No pre-proclamation case is allowed in the case of barangay elections.

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“A” and “B” were candidates for representatives in the 1987 national elections. “B” filed a pre-proclamation contest with the COMELEC on the ground that rampant vote buying and terrorism accompanied the elections. Particulars were supplied of “B’s” followers bought-off and other followers prevented from casting their votes. The COMELEC dismissed the pre-proclamation contest on the ground that all the returns appear complete and untampered.

Determine if the COMELEC decided correctly and if “B” has any recourse for contesting “A’s” election. The COMELEC correctly dismissed “B’s” pre-proclamation contest. Such a contest is limited to claims that the election returns are incomplete or that they contain material defects or that they have been tampered with, falsified or prepared under duress or that they contain discrepancies in the votes

credited to the candidates, the difference of which affects the result of the election. (OEC, secs 243, 234-236) On the other hand, the question whether or not there was terrorism, vote buying and other irregularities in the elections cannot be the subject of a pre-proclamation contest but must be raised in a regular election protest. (Ponce Enrile v. Comelec, August 12, 1987.

Since the basis of “B’s” petition is that his followers had been bought while others had been prevented from casting their ballots, his remedy is to file an election contest and this should be brought in the House of Representatives Electoral Tribunal which is the sole judge of all contests relating to the election, returns and qualifications of the members of the House of Representatives

21. Differentiate an election protest from an action for quo warranto. 2.5%, (06 bar)

An election protest is an action filed by a defeated candidate on the ground of frauds or irregularities in the casting and counting of the ballots or in the preparation of the returns. It raises the question of who actually obtained the plurality of the votes and is entitled to hold the office. On the other hand, a petition for quo warranto is a petition filed by any registered voter in the constituency of the winning candidate to unseat him on the ground of his disloyalty or ineligibility. It does not result in installing the petition in his place.28. In the elections of May 1992, Cruz and Santos were the candidates for the office of Municipal Mayor, the term of which was to expire on June 30, 1995. Finding that he won by a margin of 20 votes, the Municipal Board of Canvassers proclaimed Cruz as the duly elected Mayor. Santos filed an election protest before the Regional Trial Court which decided that it was Santos who had the plurality of 30 votes and proclaimed him the winner. On motion made, the RTC granted execution pending the appeal of Cruz to the Commission on Elections and on this basis, Santos assumed office and served as Municipal Mayor. In time, the Comelec reversed the ruling of the RTC and instead ruled that Cruz won by a margin of 40 votes and proclaimed him the duly elected Municipal Mayor. (2000 bar)

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Was Santos a usurper and should he pay back what he has received while holding the office as Municipal Mayor? Why? (2%)

Santos was not a usurper. He was a de facto officer, since he had a color of election to the office of Municipal Mayor by virtue of the decision in the election protest. Hence, he is entitled to the emoluments of the office. 47. Under the Omnibus Election Code (B.P. 881) as amended), briefly differentiate protest from a quo warranto case, as to who can file the case and the respective grounds therefore. (5%) 2001 bar)

An election protest may be filed by a losing candidate for the same office for which the winner filed his certificate of candidacy. A quo warranto case may be filed by any voter who is a registered voter in the constituency where the winning candidate sought to be disqualified ran for office. In an election contest, the issues are: (a) who received the majority or plurality of the votes which were legally cast and (b) whether there were irregularities in the conduct of the election which affected its results. In a quo warranto case, the issue is whether the candidate who was proclaimed elected should be disqualified because of ineligibility or disloyalty to the Philippines. Drug testRA 9165 (Comprehensive Dangerous Drugs Act of 2002), Section 36g “All candidates for public office whether appointed or elected both in the national and local government shall undergo mandatory drug tests.” A Comelec resolution requires a submission of drug test result taken only from government forensic laboratories or laboratories accredited by the DOH but does not indicate whether or not candidates who test positive for drugs will be allowed to assume office if they win. Valles v. comelec

Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen.

This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of foreign citizenship.

Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration.12 [41 SCRA 292, supra.] He insists that the same issue of citizenship may be threshed out anew.

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Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca vs. Republic, [51 SCRA 248.] an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present:

1) A person’s citizenship be raised as a material issue in a controversy where said person is a party; 2) The Solicitor General or his authorized representative took active part in the resolution thereof, and 3) The finding on citizenship is affirmed by this Court.

Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not really binding, to make the effort easier or simpler [Moy Ya Lim Yao, supra, pp. 366-367.] Indeed, there appears sufficient basis to rely on the prior rulings of the Commission on Elections in SPA. No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the herein private respondent. The evidence adduced by petitioner is substantially the same evidence presented in these two prior cases. Petitioner failed to show any new evidence or supervening event to warrant a reversal of such prior resolutions. However, the procedural issue notwithstanding, considered on the merits, the petition cannot prosper.

SEC. 78 (OEC)

There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: "(1) Before election, pursuant to Section 78 thereof which provides that:

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

"(2) After election, pursuant to Section 253 thereof, viz: 'Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the

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Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election." 16. A filed a protest with the House of Representatives Electoral Tribunal questioning the election of B as Member of the House of Representatives in the 1987 national elections on the ground that B is not a resident of the district the latter is representing. While the case was pending, B accepted an ad-interim appointment as Secretary of the Department of Justice.

Answer:

1) No, A may not continue with his protest. There is no dispute as to who was the winner in the election, as it is not disputed that it was B who obtained the majority. The purpose of the protest is simply to seek the removal of B from office on the ground that he is ineligible. However, B forfeited his claim to the position of congressman by accepting an ad interim appointment as Secretary of Justice, the protest against him has become moot. Similarly, in Perez v. Provincial Board of Nueva Ecija, 113 SCRA 187, it was held that the claim of a petitioner to an appointive office had become moot, because the petitioner had forfeited his claim to the office by filing a certificate of candidacy for mayor.

2) No, A cannot ask that he be proclaimed elected in place of B. The votes cast for B were not invalid votes. Hence, A garnered only the second highest number of votes. Only the candidate who obtained the majority or plurality of votes is entitled to be proclaimed elected. On this ground, it was held in Labo v. Commission on Elections, 176 SCRA 1, that the fact that the candidate who obtained the highest number of votes is not eligible does not entitle the candidate who obtained the second highest number of votes to be proclaimed the winner. Purpose of election protestThe 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. Under our resolution, dated January 16, 1996, we directed the consolidation of the following four cases: (1) G. R Nos. 107814-107815, entitled, "Gov. Tupay T. Loong, Barik Sampang, Kartini Maldisa, Yasser Hassan, and Hadja Sapina Radjaie vs. The Commission on Elections; Provincial Board of Canvassers of Sulu; Municipal Board of Canvassers of Talipao and Abdusakur Tan";(2) G.R No. 120826, entitled, "Gov. Tupay T. Loong and Kimar Tulawie vs. The Commission on Elections; The Provincial Board of Canvassers of Sulu; Abdusakur Tan and Munib Estino";

(3) G.R No. 122137, entitled, "Gov. Tupay T. Loong and Kimar Tulawie vs. The Commission on Elections, Abdusakur Tan and Munib Estino"; and

G.R. No. 107814-107815

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The petition was one for Certiorari seeking to nullify two resolutions 1 of the Commission on Elections (COMELEC) promulgated in pre-proclamation cases 2 filed by petitioner Tupay T. Loong who prayed that the proceedings of the Municipal Board of Canvassers of Talipao, Sulu, be set aside on the ground that the certificates of canvass were manufactured, fictitious and falsified.The COMELEC dismissed the petitions, hence, Loong's recourse to this Court in a petition for certiorari. In our resolution, dated January 26, 1993, we affirmed the dismissal because we found no grave abuse of discretion committed on the part of the public respondent in rendering the questioned resolutions. Entry of judgment as regards that resolution was effected on March 19, 1993. 3

G.R. No. 120826This is a petition for Certiorari assailing an Order 4 by the COMELEC, dated June 16, 1995, suspending the proclamation of petitioners as winners in the May 8, 1995 elections for Governor and Vice-Governor of the province of Sulu, for Prohibition praying that COMELEC be prohibited from conducting a technical comparison of signatures and thumb marks affixed in COMELEC CE Forms 1 and 2, and for Mandamus seeking to compel respondent to reconvene and proclaim petitioners Tupay T. Loong and Kimar Tulawie as the duly elected Governor and Vice-Governor, respectively, of Sulu.

Culled from the pleadings in this case are the following pertinent facts:

In the May 8, 1995 elections held in the Province of Sulu, petitioner Tupay T. Loong and private respondent Abdusakur Tan ran for the position of Governor, while petitioner Kimar Tulawie and private respondent Munib Estino were candidates for the position of Vice-Governor. After the canvass of the election returns of sixteen (16) of the eighteen (18) municipalities of Sulu, respondent Provincial Board of Canvasser (PBC) recommended to the COMELEC a recanvass of the election returns of Parang and Talipao.

COMELEC, accordingly, relieved all the regular members of the Municipal Board of Canvassers (MBC) and ordered such recanvass by senior lawyers from the COMELEC office in Manila. During the re-canvass, private respondents objected to the inclusion in the canvass of the election returns of Parang. The reconstituted MBC, however, merely noted said objections and forwarded the same to respondent PBC for resolution.

Subsequently, the MBC submitted its certificate of canvass to respondent PBC for canvass on the provincial level. Respondent PBC, however, denied aforesaid objections of private respondents, on the ground that only the certificate of canvass was forwarded to it and that private respondents allegedly failed to object to the canvass of said certificate. The canvass of respondent PBC showed petitioners to have overwhelmingly won in the municipality of Parang.

On June 23, 1995, private respondents appealed to the COMELEC, and such appeal was docketed as SPC No. 95-310 5 which essentially questioned the aforesaid action by respondent PBC. However, SPC 95-310, in which private respondents formally submitted their appeal from the omnibus ruling of respondent PBC denying their objections to the election returns and/or certificate of canvass, was dismissed by the COMELEC in an Order promulgated on October 20, 1995. 6 Significantly, much earlier, that is, on June 9, 1995, private respondents had already filed a petition docketed as SPA No. 95-284 7

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which prayed that the elections in Parang, Sulu, be set aside and annulled on the ground that there was failure of election in said municipality due to massive fraud. Hearing on SPA No. 95-284 was held on June 28, 1995.

After said hearing, the Commission issued an Order, dated July 4, 1995, directing the Provincial Election Supervisor of Sulu to bring to the COMELEC central office the CE Form 2 which pertains to the list of voters with voting records used in the May 8, 1995 elections and the books of voters for all precincts. Anticipating that the COMELEC would use the said documents to conduct a technical examination of the signatures and thumb marks affixed in the list of voters with voting records (CE Form

2) and in the registration forms (CE Form 1), petitioners Loong and Tulawie prayed that the COMELEC inform them as to whether or not it would conduct a technical examination of CE Forms 1 and 2, which examination, petitioners argued in their motion, has been proscribed in pre-proclamation controversies by this Court in the landmark case of Dianalan vs. COMELEC, 9 and that, in the alternative, the same examination be conducted as regards CE Forms 1 and 2 of the municipalities of Siasi, Panglima Estino, Tapul, Pata and Kalinggalang Caluang, where private respondents allegedly committed rampant fraud during the elections.

In an Order, 10 dated July 18, 1995, the COMELEC directed its Voters Identification Division to verify and examine the list of voters with the voting records used in the May 8, 1995 elections together with the books of voters of all precincts for the municipality of Parang, Sulu, and to submit a report thereon within fifteen (15) days.

On July 21, 1995, petitioners countered by filing with the COMELEC a Petition to Declare a Failure of Election in the Municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Caluang, on the similar ground of massive fraud resulting in a statistical improbability in the election results. Said petition was docketed as SPA No. 95-289, which, however, was dismissed by the COMELEC in its En Banc Resolution dated December 13, 1995.

G.R. No. 122137

This is a petition for Certiorari assailing two COMELEC En Banc Resolutions, 11 both dated October 9, 1995, issued in the aforecited election cases of SPA No. 95-284 and SPA No. 95-289 which were ordered consolidated for purposes of disposition, the petitions being that they involve the same parties and are so closely connected that resolution of one would necessarily and materially affect the outcome of the other.

The parties in both petitions contend that no election was ever conducted and no voting took place in the aforecited municipalities covered by their respective petitions. The COMELEC disposed of pending incidents in the consolidated cases SPA No. 95-284 and SPA No. 95-289 in this wise:

WHEREFORE, we summarize the Commission's rulings, considered adopted by unanimous or majority vote, as follows: In SPA No. 95-284,

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(1) To annul the results of the elections in the municipality of Parang, Sulu, as to the positions of Governor and Vice-Governor; (2) In the meantime, to reserve its ruling on whether or not to hold special elections in the said municipality; (3) To hold in abeyance the proclamation of the winning candidates for Governor and Vice-Governor, until further orders from the Commission;

(4) To relieve the present Chairman and members of the Provincial Board of Canvassers of Sulu, and to appoint to their respective positions: Atty. Nimia B. Suero, Chairman; Atty. Alexander A. Villanueva, Vice-Chairman, and Atty. Teresita C. Suarez, Member-Secretary, who are directed to immediately re-convene in Manila and proclaim the winning candidates for Sangguniang Panlalawigan of the First District of Sulu, on the basis of the canvass duly conducted. In SPA No. 95-289,

(1) To set the petition for hearing and resolve the questions therein raised on (a) the timeliness of the petition, and, (b) whether or not to order a technical examination of CE Forms 1 and 2 used in the 1995 elections for Governor and Vice-Governor in the Municipalities or Panglima Estino, Tapul, Pata, Siasi and Kalinggalang Caluang, Sulu.

SO ORDERED. 12

In essence, petitioners claim that the assailed resolutions of the COMELEC were issued with grave abuse of discretion and without jurisdiction insofar as the COMELEC order, on the basis of the results of the technical examination of the thumb marks of the voters affixed in CE Forms 1 and 2, the annulment of the elections in Parang, Sulu, respecting the positions or Governor and Vice-Governor because, petitioners asseverate, such technical examination has been held by this Court to be prohibited in pre-proclamation controversies.

Moreover, petitioners charged the COMELEC to have violated their fundamental right to due process when it annulled the elections of Parang, Sulu, on the basis of the results of said technical examination without giving petitioners prior opportunity to be confronted with and to refute, the said results.

On December 14, 1995, petitioners filed an Urgent Motion for the Issuance of a Temporary Restraining Order and Supplemental Petition for Certiorari 13. Said pleading further assailed another En Banc Resolution 14 issued by the COMELEC on December 13, 1995, in consolidated cases SPA No. 95-284 and SPA No. 95-289. In that resolution, the COMELEC ruled:

At this late date and using hindsight, one is inclined to ask, were herein petitioners so complacent in a pre-determined lead in Parang, that, given their awareness of the irregularities in the five (5) municipalities, the alleged lopsided results therein would not upset their victory? Faced with the possible undoing of the Parang election results, would petitioners move to maintain their lead with a parallel undoing of what they perceive as pro-Tan-and-Estino results in other municipalities?

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In SPA 95-284, respondents Loong and Tulawie propose to submit for examination the CE Forms 1 and 2 in these five municipalities "in the event" and only then, a similar examination is conducted on the Parang documents!

It is urged that parties come to this Commission with a shared purpose to uphold the sacredness of an election. Looking to the Constitution for guidance, we are constrained to withhold from petitioners in SPA 95- 289 the means which would otherwise be theirs had they been motivated with the principles of fairness and integrity in a political rivalry such as the 1995 provincial elections in Sulu. As with the Courts, one must come to the Commission for adjudication of his rights with clean hands.

We rule for the annulment of the elections in Parang, Sulu. We also rule to dismiss the petition for a declaration of failure of elections in the municipalities of Panglima Estino, Kalinggalang Caluang, Pata, Tapul and Siasi. One final word on the matter of determining the provincial winners following the annulment of a municipal election: The approach to this issue was varied in the October 9, 1995 resolution. We have re-assessed our position and abandoned the option of a special election. We take cognizance of the fact that the lists of voters used in the May 8, 1995

elections have been annulled by Republic Act No. 8046. A registration was conducted in Sulu, including Parang, last August 19 and 20.

If the new list of voters is to be used, there will be the legal oddity of using a list which was not in existence at the time the original election (May 8, 1995) was held. A special election, to be sure, is a mere continuation of the election first held. On the other hand, if the voters list in the May 8, 1995 elections is used, there is the anomaly of using a nullified list of voters.

Upon these considerations we have abandoned the alternative of calling a special election in Parang. There is really no compulsion for the calling of a special election. The voters of Parang constitute only about less than 15% of the entire Sulu electorate. And there are results from seventeen out of eighteen municipalities of Sulu. Excluding the Parang election results, a valid proclamation can still be had. Xxx xxx xxx

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