POLITICAL LAW REVIEWER: ELECTION LAWS
POLITICAL LAW REVIEWER
- Embodiment of the popular will, the expression of the sovereign power of the people.
- Choice or selection of candidates to public office by popular vote
- Conduct of the polls
- Listing of votes
- Holding of Electoral campaign
- Act of casting and receiving the ballots from the voters
- Counting the ballots
- Making the election returns
- Proclaiming the winning candidates
Regular election – refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters.
Special election – is when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law.
Definition (Omnibus Election Code)
An organized group of persons pursuing the same ideology, political ideas or platforms of government including its branches and divisions.
Types of Political Parties
1) Registered Parties:
- Dominant Majority Party – usually the administration party; entitled to a copy of election return
- Dominant Minority Party – entitled to a copy of election return
- Majority Political Party
- Top 3 Political Parties – entitled to appoint principal watcher and a copy of the certificate of canvass
- Bottom 3 political parties – entitled to appoint principal watcher
2) Non-registered parties
Criteria to Determine the Type of Political Party
- Established Record of the said parties, showing in past elections
- Number of Incumbent Elective Officials
- Identifiable political organizations and strengths
- Ability to fill a complete slate of candidates
- Other analogous circumstances
Grounds for Challenging the Voter
- Illegal voters ( Not Registered / Using the name of another / disqualified )
- Based on certain illegal acts (Vote buying)
Acquisition of Juridical Personality
It is acquired upon registration with the COMELEC.
Forfeiture of Status as a Registered Political Party
The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration. There shall be notice and hearing.
Rules on Filing of Certificates of Candidacy
- No person shall be elected into public office unless he files his certificate of candidacy within the prescribed period
- No person shall be eligible for more than one office. If he/she files for more than one position, he shall not be eligible for all unless he cancels all and retains one
- The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative.
- Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes involving candidates.
Grounds for Disqualification
- Election offenses under Sec 68 of the Omnibus Election Code (OEC)
- Not possessing qualifications and possessing disqualifications under the Local Government Code
2.1 Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence
2.2 Removed from office as a result of an administrative case
2.3 Convicted by final judgment for violating the oath of allegiance to the Republic
2.4 Dual citizenship ( more specifically, dual allegiance)
2.5 Fugitives from justice in criminal or non-political cases here or abroad
2.6 Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right
2.7 Insane or feeble-minded
- Nuisance candidate
- Violation of sec 73 of OEC with regard to certificate of candidacy
- Violation of sec 78 which is material misrepresentation of reqts under sec. 74.
* Disqualifications (from continuing as a candidate or from holding the office if already elected):
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 is found by the Commission of having:
- Given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions.
- Committed acts of terrorism to enhance his candidacy
- Spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code )
- Solicited, received or made any contribution prohibited under this Code
- Violated any of the following sections: Section 80, 83, 85,86,261
- Permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office UNLESS he/she has waived his/her status as a permanent resident/immigrant of a foreign country in accordance with the residence requirement provided for under election laws.
Effect of a Disqualification case (under RA 6646)
- Any candidate who has been declared by final judgment to be disqualified shall NOT be voted for. The votes cast in his favor shall not be counted.
- If the candidate is not disqualified by final judgment before the election and receives the highest number of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry or protest. Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension of the proclamation of the candidate whenever the evidence of his guilt is strong.
A. The term refers to candidates who have no bona fide intention to run for the office for which the certificate of candidacy has been filed and would thus prevent a faithful determination of the true will of the people.
B. Power of COMELEC
- May refuse to give due course to or cancel a certificate of candidacy of a nuisance candidate. This can be done motu proprio or upon verified petition of an interested party.
2.There should be a showing that:
- Certificate of candidacy has been filed to put the election process in mockery/disrepute or
- To cause confusion among the voters by the similarity of the names of the registered candidates
- Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office…
Petition to deny due course to or to cancel a Certificate of Candidacy
A. Exclusive ground: A material representation in the certificate of candidacy is false.
B. The petition should be filed not later than 25 days from the filing of the certificate of candidacy.
C. It should be decided not later than 15 days before the election, after due notice and hearing.
Election Campaign/Partisan Political Activity
1) It refers to an act designed to promote the election or defeat of a particular candidate/s to a public office
2) It includes:
A. Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate.
B. Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.
C. Making speeches, announcements or commentaries or holding interviews for or against the election of any candidate for public office.
D. Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate.
E. Directly or indirectly soliciting votes, pledges or support for or against a candidate.
3) When the acts enumerated above are NOT considered an election campaign/partisan political activity.
If the acts are performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties.
RA 9006 – FAIR ELECTION ACT
1) Repeal of Sec. 67 of the OEC – Now, any ELECTIVE official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
2) Lifting of the Political Ad Ban – Written and Printed Materials (8.5” W x 14L”)
Posters (2’ x 3’) in common-private poster areas ( not more than 10 public places per political party or independent candidate, 12’ 16’), private places and public places
Rally streamers (3’ x 8’) NOT MORE THAN 2
Paid Advertisements at Discounted Rates
Print : 1/4th page in broadsheet and ½ page in tabloid 3x a week
Television: 120 minutes for candidate for nationally elective office and 60 for local
Radio: 180 minutes for candidate for nationally elective office and 90 for local
COMELEC free space (3 national newspaper for nationally elective officials and 1 national newspaper for local) and airtime
(3 national television networks for nationally elective officials and 1 station for local ) : equal allocation for all candidates for 3 calendar days
Authorized Expenses ( multiplied with the total number of registered voters )
- P 10 for president / vice president
- P 3 for other candidates for every voter currently registered in the constituency
- P 5 for independent candidates and political parties
- Age: 18 years old and over.
- He /she should have resided in the Philippines for one year and
- Resided in the city/municipality wherein he proposes to vote for at least 6 months immediately preceding the election.
If the transfer of residence is due to any of the following reasons, the person concerned will be deemed NOT to have lost his original residence:
A. Transfer solely because of occupation, profession, employment in private or public service
B. Educational activities
C. Work in military or naval reservations
D. Service in the army, navy or air force, national police force
E. Confinement/detention in government institutions in accordance with law.
* RA 8189 – VOTER”S REGISTRATION ACT OF 1996
Q: Can there still be general registration of voters?
A: No more, because 8189 (7) provides for such only for the May ’98 elections
Q: What kind of registration system do we have?
A: Continuing, Computerized and Permanent
A. If sentenced by final judgment to suffer imprisonment for not less than 1 year and such disability was not removed by plenary pardon or has not been granted amnesty. However, any person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence.
B. Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion or any crime against national security:
1. UNLESS restored to his full civil and political rights in accordance with law.
2. However, he shall regain his right to vote automatically upon expiration of 5 years after service of sentence.
C. Insane or incompetent persons as declared by competent authority.
Jurisdiction in Inclusion/Exclusion cases
A. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any time except 105 days before regular election or 75 days before special election
B. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision.
C. RTC will decide the appeal within 10 days. Decision is final and executory.
D. Note: Relate this to Article IX of the Constitution which provides that the COMELEC has no jurisdiction over questions involving the right to vote.
E. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days before special election
Grounds when the List of Voters will be altered:
- Deactivation/ Reactivation
- Exclusion/ Inclusion
- Cancellation of Registration in case of Death
- New voters
- Annulment of Book of Voters
- Transfer of Residence
How is challenge to right to register effected?
Who – any voter, candidate, political party representative
How – in writing, stating grnds, under oath, proof of notice of hearing
Deactivation means removing the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation.
How is reactivation of registration effected ?
Sworn application for reactivation
Not later than 120 days before regular election and 90 days before special election
Annulment of Book of Voters is through verified petition; notice and hearing; not prepared in accordance with law or prepared through fraud, bribery, forgery, impersonation, intimidation, force, any similar irregularity or which contains data that are statistically improbable
Cannot be done within 90 days before election
Postponement of Election
- Loss or destruction of election paraphernalia/records
- Force majeure
- Other analogous causes
It is impossible to hold a free, orderly and honest election in any political subdivision
COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en banc, RA 7166):
A. Motu proprio
B. Upon a verified petition by any interested party, after due notice and hearing
Date of new election
The date of the postponed election should be reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect. It should not be later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect.
Failure of Election
- Force majeure
- Other analogous causes
Under RA 7166, the causes for the declaration of the failure of election may occur before or after the casting of votes or on the day of the election.
Effects of above causes
A. Election in any polling place was not held on the date fixed;
B. Election was suspended before the hour fixed by law for the closing of the voting
C. Elections results in a failure to elect (after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof)
AND the failure or suspension of the election would affect the result of the election
COMELEC can call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect. The election should be held not later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect. This is decided by the COMELEC, by a majority vote of its members, sitting en banc.
RA 7941 – Party-List System Act
- Seeks to promote proportional representation
- Any party already registered need not register anew. File manifestation not later than 90 days before election.
Grounds for refusing or canceling registration of Party-Lists groups
- Religious sect or denomination, organization
- Advocates violence
- Foreign party or organization
- Receives foreign support
- Violates election law
- Untruthful statements in its petition
- Ceased to exist for at least one year
- Failed to participate in the last two preceding elections or fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered
Nomination of party-list reps should not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election
Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned
Party List Reps constitute 20% of the total number of the members of the House of Reps including those under the party-list
How do we determine the number of party list seats in the House of Reps?
(# of District Reps / 0.80) x 0.20 = # of party list reps
- There are presently 208 legislative districts, according to the Veterans Federation Case
- The 5 major political parties are now entitled to participate in the party list system
- Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each
- No party shall be entitled to more than 3 seats
- Currently, there are 260 seats. So 20 % of 260 is 52 seats. But this is only a ceiling.
- A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress. Ranking in the list submitted determines who shall represent party or organization.
Rules for Appreciation of Ballots
- Liberal Construction in favor of the validity of the ballot
- Look at the ticket slate, consider locality or literacy rate
- Rule 211 of the OEC
- Incumbency / Surname
- Cannot ascertain – STRAY VOTE
- 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 COMELEC.
- It would also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns. (Board of canvassers have original jurisdiction while COMELEC have appellate jurisdiction)
- When election returns are delayed, lost or destroyed (233)
- Material defects in the election returns (Sec. 234)
- When election returns appear to be tampered with or falsified. (Sec. 235)
- Discrepancies in election returns (Sec. 236)
C. Those that can be filed with COMELEC directly are the ff:
- Issue involves the illegal composition or proceedings of the board of canvassers, as when a majority or all of the members do not hold legal appointments or are in fact usurpers
- Issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing
There can be a recount under the grounds of 234-236. The returns involved will affect the results and the integrity of the ballot box has been preserved
Issues that may be raised in a pre-proclamation controversy
- Illegal composition or proceedings of the board of canvassers
- 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 authentic copies thereof.
- The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured, or not authentic.
- When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.
A. Contested composition or proceedings of the board (under RA 7166)
It may be initiated in the board or directly with COMELEC.
B. Contested election returns (under RA 7166)
Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns, and certificate of canvass, should be brought in the first instance before the board of canvassers only.
Summary nature of pre-proclamation controversy
- Pre-proclamation controversies shall be heard summarily by the COMELEC.
- Its decision shall be executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the SC.
Effect of filing petition to annul or suspend proclamation
It suspends the running of the period within which to file an election protest or quo warranto proceedings.
When not allowed
Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass NOT allowed in elections for: (under RA 7166)
- Member of the House of Representatives
BUT: The appropriate canvassing body motu propio or upon written complaint of an interested person can correct manifest errors in the certificate of canvass or election returns before it.
BUT: Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with COMELEC.
When pre-proclamation cases are deemed TERMINATED (RA 7166)
- All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned deemed affirmed.
B. This is without prejudice to the filing of a regular election protest by the aggrieved party.
C. HOWEVER: Proceedings MAY CONTINUE if:
- The COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue or
- The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.
COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, qualifications of all elective:
- City officials
COMELEC has APPELLATE jurisdiction over all contests involving:
A. Elective MUNICIPAL officials decided by trial courts of GENERAL jurisdiction
B. Elective BARANGAY officials decided by trial courts of LIMITED jurisdiction
Who can file a petition contesting the election
Any candidate who has duly filed a certificate of candidacy and has been voted for the same office
Purpose of an election contest
The defeated candidate seeks to outs the proclaimed winner and claims the seat.
Final COMELEC Decisions
Provision that decisions, final orders, rulings of the Commission on election contests involving municipal and barangay offices are final, executory and not appealable:
A. This only applies to questions of FACT. ( Flores v. COMELEC, 184 SCRA 484)
B. It does NOT preclude a special civil action of certiorari. (Galido v. COMELEC, Jan. 18,1991)
Distinctions between Pre-Proclamation Controversy and Election Contest
1) Dividing line: Proclamation of a candidate
A. Pre-proclamation controversy
1.The jurisdiction of COMELEC is administrative/quasi-judicial
2.It is governed by the requirements of administrative due process
B. Election contest
1.The jurisdiction of COMELEC is judicial
2.It is governed by the requirements of judicial process
3) In some cases, even if the case (involving municipal officials) began with the COMELEC before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes an election contest cognizable by the RTC.
4) However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases even after proclamation. Relate to the provision in RA 7166 allowing pre-proclamation controversy proceedings to continue even after a proclamation has been made.
Election Offenses ( Selected Offenses)
Vote buying and vote-selling
A. Covered acts
1.Give, offer or promise money or anything of value
2. Making or offer to make any expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity or community
3.Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private
B. Purpose of acts
1. To induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election or
2. To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection
C. Under RA 6646 (Prosecution of vote-buying/selling)
1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate is sufficient basis for an investigation by the COMELEC,directly or through its duly authorized legal officers.
2. Disputable presumption of conspiracy:
Proof that at least one voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate relatives, leaders and/or sympathizsrs for the purpose of promoting the election of such candidate.
3. Disputable presumption of involvement
Proof affects at least 20% of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relates. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy
Coercion of a subordinate
A. Who can be held liable
1. public officer
2. officer of a public/private corporation/association
3. heads/superior/administrator of any religious org.
B. Prohibited acts
- Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or selection of candidates.
- Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc.
Appointment of new employees, creation of new position, promotion or giving salary increases:
A. Who can be held liable: Any head/official/appointing officer of a government office, agency or instrumentality, whether national or local, including GOCCs.
B. Prohibited acts
1.Appointing or hiring a new employee (provisional, temporary or casual)
2.Creating or filling any new position
3.Promoting/giving an increase in salary, remuneration or privilege to any government official or employee.
C. Period when acts are prohibited
1. 45 days before a regular election
2. 30 days before a special election
- Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the proper functioning of the office/agency concerned AND that the position is not filled in a manner that may influence the election
- In case of urgent need, a new employee may be appointed. Notice of appointment should be given to COMELEC within 3 days from appointment.
Prohibition against release, disbursement or expenditure of public funds
A. Who can be held liable: Any public official or employee including barangay officials and those of GOCCs/subsidiaries
B. Prohibited acts:
The release, disbursement or expenditure of public funds for any and other kinds of public works
C. Period when acts are prohibited:
1. 45 days before a regular election
2. 30 days before a special election
- maintenance of existing/completed public works project.
- work undertaken by contract through public bidding, or by negotiated contract awarded before the 45 day period before election
- payment for the usual cooperation for working drawings, specfications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages.
- Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility.
- Ongoing public work projects commenced before the campaign period or similar projects under foreign agreements.
Suspension of elective, provincial, city, municipal or barangay officer
A. General rule: public official CANNOT suspend any of the officers enumerated above during the election period.
- With prior approval of COMELEC
- Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act
In relation to registration of voters/voting
- Unjustifiable refusal to register and vote
- Voting more than once in the same election/voting when not a registered voter
- Voting in substitution for another with or without the latters’ knowledge and/or consent etc.
Other election offenses under RA 6646
- Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertakes unauthorized printing
- Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board of election inspectors)
- Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEI)
- Person who violated provisions against prohibited forms of election propaganda
- Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers)
- A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission.
- If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166)
Prescription of Election Offenses
- Election offenses shall prescribe after 5 years from the date of their commission
- If the discovery of the offense is made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory
Jurisdiction of courts
- RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code.
- MTC/MCTC have jurisdiction over offenses relating to failure to register or vote.
Political Law (Constitutional Law) – Article XVIII
ARTICLE XVIII – TRANSITORY PROVISIONS
Effectivity of the 1987 Constitution
- The 1987 Constitution took effect immediately upon its ratification.
- According to the SC, this took place on February 2, 1987, which was the day the people cast their votes ratifying the Constitution.
Military bases agreements
1) Renewals of military bases agreements must be through a strict treaty.
2) Ratification of the agreement in a plebiscite is necessary only when Congress so requires.
3) Section 25 of Article XVIII allows possible local deployment of only AMERICAN forces.
Political Law (Constitutional Law) Reviewer & Memory Aid
Ateneo Central Bar Operations 2001