Election Law -2 by Atty. Demigillo

8/10/2019 Election Law -2 by Atty. Demigillo

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Outline of Presentation

The Legal framework the various Election laws The Institutional framework - Commission on Elections

Voters and Voter Registration

Elective Officials and Candidates

Campaign Elections: Postponement and Failure

Election day

Casting and Counting

Canvassing and Pre-Proclamation

Post- Proclamation; Election Contest ; Quo Warranto

Annulment of Election

Election Offenses


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The Legal Framework

BP881 Omnibus Election Code

EO 157 - Absentee Voting of Govt officials andemployees

RA6644- Reducing minimum age of elective localofficials

RA6645 Filling up vacancy in Congress

RA6646 - Electoral Reforms

RA6735- Initiative and Referendum

RA7160 Local Government Code


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The Legal Framework

RA 7166- Synchronized Natl and Local Elections RA7941 Election of party-list reps

RA8171- Repatriation of women who lostcitizenship by marriage to aliens and

natural born Filipinos RA8173 Citizens Armaccreditation

RA8189 General Registration of Voters,Continuing Registration

RA8295 Proc. of lone candidate in a specialelection

RA9006 Fair election practices act


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RA9189 - Overseas Absentee Voting

RA 8436 Automated Election System Act

The Legal Framework


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The Institutional Framework - Comelec

Enforcement: All laws and regulations on election.plebiscite, initiative, referendum and recall.

Salva v. Makalintal GR 132603

Judicial Power: Elections, Returns and Qualifications

Not suffrage or right to vote

Jurisdiction: Original - Regional, Provincial andCity officials

Appellate- Municipal, Barangay officials(Sangguniang Kabataan -DILG)

Recourse: En Banc (MR, administrative) andDivision(1st instance, judicial)

Process: Division - MR to En Banc - Certiorari to SC


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Commission on Elections

Judicial: Disqualification, Election Protest,Quo Warranto, Pre- Proclamation, Annulmentof Proclamation

Javier v Comelec GR L-22248 Administrative: Failure of Elections,

Postponement of Elections(Pungutan v Abubakar) (Carlos v Angeles)(Albano v Arranz)

Investigate and Prosecute Election OffenseKilosbayan v Comelec GR 128054 -

Comelec does not search or gather proof

Annulment of Book of Voters (Sarangani v Comelec) Contempt: Judicial, not Administrative


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Voters: Concepts

Suffrage is a Right, Not Obligation

Qualifications of voters - defined in Constitution

Procedural Requirements allowed, Substantive notallowed (Property, Religion, Gender, Literacy etc.)

Disqualifications defined in the Statute

Must allow: Absentee Voting, Dual Citizens, Disabledand Illiterates to Vote

Relationship with Right to Run for Office


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Voters: Qualifications

Filipino Citizen

At least 18 years of age on election day

Resident in the Philippines for at least 1 year prior toelection day

Resided in the place where he proposes to vote. for atleast 6 months prior to election day

Free from Disqualifications

In order to vote, one must be a registered voter


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Voters: Disqualifications

Sentenced by final judgment imprisonment of 1year or more

Sentenced to suffer accessory penalty forfeiture of

political rights (Romeo Jalosjos v Comelec)

Adjudged by final judgment crime involving

disloyalty

Court-declared insane and incompetent persons


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Voters: Registration

Continuing(Akbayan v Comelec special registration)

Computerized List

200 Voter per Precinct

Permanent but may be changed (+ or -): New Voters;Transfer;

Deactivation and Activation; Cancellation; Inclusion andExclusion; and Annulment of Book of Voters (BV)

Sarangani v Comelec, GR 135927


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Voters: Opposition to registration

Where to Oppose? Election Registration Board

How to Oppose? File Written Opposition

Why Oppose? Not Qualified, Fictitious


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Voters: Deactivation of Registration

When Disqualified to Vote; Failed to Vote in 2preceding elections

When Registration is Excluded by the Court

When Lose Filipino Citizenship


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Voters: Inclusion/ Exclusion

Where to File? MTC (not Comelec), then appeal to

RTC

Pungutan v Abubakar - judicial function

Grounds

a. Disapproval or Name Stricken Out

(Inclusion);b. Not Qualified or Voter Not Real(Exclusion)


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Voters: Inclusion/ Exclusion Petition

File Petition (refer to 1 precinct; Election Registration

Board (ERB) members as Respondents)

Service of Notice (4 modes personal, leaving, registeredmail ; posting in city/ mun. hall and in2 other places)

Any Voter, Candidate or Political Party may intervene

Summary Proceedings (not conference inside Chambers) Presentation of Evidence (No Stipulation of Facts)

Decision within 10 days from Filing

Appeal with RTC (5 days)


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Voters: Annulment of B00k of Voters

Where File? COMELEC(Sarangani et al v. Comelec, GR 135927)

Ghost precincts

Who Files? - Any Voter, Election Officer or registeredPolitical Party

What Grounds :

a. Book Prepared Improperly;

b. Preparation Attended with Forgery orFraud, Intimidation, Bribery

c. Book contains Statistically ImprobableData


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Voters: Election Day

Challenge of Illegal Voter

Grounds - Not registered; Use another name;Disqualified; Multiple Registrant

(will be allowed to vote if properly identified)

Illegal Act - a) Vote-Buying; b) Vote-Selling; c) Vote-

Betting: d) Promise to induce or withhold vote

(will be allowed to vote if he takes oath)


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Officials: Elective

National Office

President; Vice-President; Senators (24; 1/2);Representatives (District and Party-List)

Local Office

LCE: Governor, Mayor and Punong Barangay;

VLCE: Vice-Governor and Vice-Mayor

Sanggunian Members; Sangguniang Kabataan


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Officials: Candidate

Definition: Seeks public office and files certificateof candidacy

Effect of Non-Filing: Not a candidate (re: liabilityfor unlawful acts and omissions)

Effect of Filing: On Tenure of Incumbents (electiveand appointive)


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Officials: Substitution

Grounds Death, Withdrawal and Disqualification

Both Substituted and Substitute must be Qualified

When? Up to mid-day of election day (Rules may setearlier deadline)

Substitute? Qualified and Same Party (or spouse)

Substituted can no longer run for any other position/Withdrawal does not affect liabilities.

Votes cast for substituted are stray unless same surname


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Officials: Qualifications

Set by the Constitution (for national) and statutes(for local)

Citizenship

Age

Residency (Gayo v. Verceles) (Imelda Marcos v. Comelec)(Agapito Aquino v. Comelec)

Registered Voter

Literacy Free from Disqualifications

Undergo Drug Test under CDDA of 2002(unconstitutional)


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Officials: Disqualifications

Lack qualifications/ possess some disqualifications

Violate Term Rule (1-2-3 terms)

Commission of an election offense

Nuisance Candidate

Sentenced by Final Judgment accessory penalty

Wilfully Commits Material Misrepresentation(Fermin v Comelec 2008)

No valid, timely and properly filed certificate of candidacy


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Lack of Qualifications

Where to File: Comelec Division

When to File: Before Proclamation

If Not, File: Quo Warranto


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Election Offense

What Offenses? Vote-Buying, Terrorism, Unlawful

Expenditures, Unlawful Campaign,

Coercion of Subordinates, Threats,

Prohibition against Release of Public

Funds

(Lanot v. Comelec early campaigning; when one

becomes a candidate)

Where to File? Comelec Division

When to File? Before Proclamation

If Not Filed? Election Protest and/ or Election

Offense


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Nuisance Candidate

Who Is? Campaign Capability, Intention,Performance, Exposure, Platform, Party

Affiliation, Organization, Profession,Income, Health, Education, Name

Where to File? Comelec Division

When to File? Within 5 days from Last Day of Filing

of Certificate of Candidacy

If not Filed: No remedy


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Misrepresentation (Fermin v Comelec GR179695)

Misrepresentation must be Material (pertains to

Qualifications and Disqualifications) and Willful/Deliberate; or even if there is Misrepresentation, ifcandidate actually Qualified Not Disqualified

Where to File? Comelec Division When to File? 25 days from Filing of CoC

If Not Filed: No remedy


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Campaign: Concept

Definition of Campaign : Act designed to promoteor defeat a candidate

Determining Factor: Intent/ Design (not all acts ofbeneficence are considered campaigning)

Application: All Candidates for All Elective Offices

Current Framework: Regulated but Liberalized


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Campaign: Allowable Forms

Forming Organizations

Holding Rallies

Making Speeches

Distributing Campaign Materials

Soliciting Votes

Publishing Advertisements


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Campaign: Propaganda

Paid Political Advertisements

Free Space and Airtime Osmena vs Comelec political ad ban valid

Use of Gadgets and Billboards

Private Poster Areas

Posting in Private Places (decals, stickers in mobile placesinAdiong v. Comelec)

Election Surveys and Exit Polls


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Campaign: Written Forms

Printed Materials (8.5Wx14L)

Letters

Posters (2x3), Poster Areas (12x16)

Rally Streamers (3x8)


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Campaign: Paid Ads

Print: 1/4th page in broadsheet, in tabloid 3x aweek

Television: 120 minutes (for national) and 60minutes (for local)

Radio: 180 minutes (for national) and 90 minutes(for local)


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Elections: Postponement

Grounds: Force majeure, Violence, Terrorism, Loss orDestruction of Election Paraphernalia, and

Analogous Causes

Extent: Serious and Impossible to have free and orderlyelections

Conditions: Grounds must exist before voting

Authority: Comelec en banc (petition or motu propio)


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Election Day: Pre-Casting

Polling Places are Opened

Election Paraphernalia and Book of Voters Presented

and Examined in Public BEI Chair Opens Ballot Box (turn upside down)

BEI locks Ballot Box

BEI Chair and Poll Clerk Sign at the Back of EachBallot

Watchers Present their Credentials


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Election Day: Casting

Voters Vote in Order of their Entrance

Voter Approaches BEI Chair

BEI Verifies Identity

BEI Chair Announces Name (Voter may be Challenged:Illegal Voter or Illegal Acts)

Voter Signs in EDCVL

BEI Chair Enters Ballot Number in EDCVL

El i D C i


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BEI Chair Signs at the Back of Ballot

BEI Chair Delivers 1 Ballot to Voter

Voter Proceeds to Voting Booth (If Voter spoils ballot, must be

surrendered and given another)

Voter Delivers Folded Ballot to BEI Chair

Voter Affixes Thumbmark in Coupon

BEI Chair Verifies Ballot Number

Voter Affixes Thumbmark in EDCVL


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Chair applies indelible ink on right forefinger nail ofvoter

BEI Chair Signs VL

BEI Chair Detaches Coupon and Deposit Foldedballot in Compartment for Valid Ballots and Couponin Compartment for Spoiled Ballots

Voter Departs


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Election Day: Counting

Counting in Public and Without Interruption Ballot Box Opened and Ballots Counted

Excess Ballots Disposed of

Marked Ballots Ascertained and Not Counted

Ballots Unfolded, then Placed in Piles of 100, thenRead Ballots of 1st

Pile 1-by-1, BEI Chair Affixes Thumbmark, Totals afterReading of each

Pile

During Counting, Chairperson reads names, Poll ClerkRecords on

Election Returns, 3rd Member Records on Tally Board


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Election Day: Counting

Proclamation of Results (Alterations and Corrections canbe made before Announcement)

Sealing of Counted Ballots and Election Returns andCertification of Tally Sheet

Issuance of Certificate of Votes

Delivery of Ballot Boxes and Election Paraphernalia to

Local Treasurer

7 Copies of Election Returns Distributed


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Canvassing: Concepts

Collegial Body: Board of Canvassers Determination: Due execution and authenticity of ERs

and CoVs

Scope: Canvassing, Pre-Proclamation Controversies or

Manifest Errors and Proclamation

Delfin v Albano Comelec can suspend proclamationpending inquiry into irregularities /discrepancies between

various copies of ERs.

Mastura v Comelec Comelec can suspend canvass and ifERs found falsified or tampered, can annul illegal canvass andorder BOC to reconvene


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Canvassing: Pre-Proclamation

Grounds : Exclusive (BoC Composition/ Proceedings and ER/CoC) Pre-proc controversy refers to any question pertaining to or affectingthe proceedings of the BOC Macabago v. Comelec)

No Pre-Proclamation Cases for National Positions only ManifestErrors in COC or ERs - Chaves v Comelec GR 105323

Face of Election Returns (No evidence aliunde)

No violence, voting, voters, appreciation of ballots

2-Objection Rule: Verbal then Written

Aratuc v Comelec


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Canvassing: Pre-Proc

ER/ CoV Delayed or Destroyed

Delayed (retrieval)

Lost or Destroyed (use other copies; with Comelecauthority


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Material Defects

Material Defects: Name of Candidate Omitted, orVotes of Candidate

Omitted (BEI to correct or recount)

Formal Defects: Not Sealed with Inner Paper Seal,No Outer Paper Seal/ Seal Broken, # of Registered

Voters Not Stated, No Closing Signature by BEI,Not Signed by Watchers


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ER/ CoC Falsified/ Spurious

Grounds: Not Signed by BEI, Prepared by Non-BEI, No Security Markings, Prepared by BEI underDuress, or Contain Erasures (affect integrity)

Recourse: use other copies or recount


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Canvassing: Manifest Errors

Any Palpable Error

Copies of ER tabulated more than 1x

2 Copies of ER tabulated separately

Mistake in adding

Mistake in copying of figures in statement of votes

ERs from non-existent precincts canvassed


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Post-Proc: Election Protest

Grounds: Fraud and Irregularities in Casting,Counting and Canvassing

Documents in Question: Ballots, ERs and CoCs

Venue: P/VP; Senators; Representatives; Regional;

Province; City; Municipality; Barangay Requirements: Filed by candidate; Within period;

Protestee proclaimed; Payment of filing fee;Allegations of fraud; Identify precincts;

Verified; Certificate of non-forum shopping Procedure: Revision; Trial

If prosper: protestee removed, true winnerproclaimed


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Post-Proc: Quo Warranto

Grounds: Disloyalty to Republic; Ineligibility

Venue: Same as Election Protest

If prosper: Respondent ousted; special elections orsuccession

Gayo v Verceles GR 150477


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Quo Warranto

RULE 66 QUO WARRANTO

Action by Government against individuals.-An action for theusurpation of a public office, position or franchise

(a) A person who usurps, intrudes into, or unlawfully holds orexercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by theprovision of law, constitutes a ground for the forfeiture ofhis office; or

(c) An association which acts as a corporation within thePhilippines without being legally incorporated or withoutlawful authority so to act.


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Quo Warranto

An individual may commence such an action.

A person claiming to be entitled to a public office or positionusurped or unlawfully held or exercised by another may bringan action therefor in his own name.

Parties and contents of petition against usurpation.-The petition shall set forth the name of the person who claimsto be entitled thereto, if any, with an averment of his right tothe same and that the respondent is unlawfully in possessionthereof.

All persons who claim to be entitled to the public office x x x may bemade parties, and their respective rights to such public office,position or franchise determined, in the same action.


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Quo Warranto

Rights of persons adjudged entitled to public office

after taking the oath of office and executing any official bondrequired by law,

a. take upon himself the execution of the office,

b. demand of the respondent all the books and papers in therespondents custody or control

If the respondent refuses or neglects to deliver any book or paper, -- punished for contempt as having disobeyed a lawful order

of the court.

bring action against the respondent to recover the damagessustained by such person by reason of the usurpation.


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Post-Proc: Annulment

Grounds: Proclamation based on irregular andillegal canvass Demafiles v Comelec

Venue: Comelec division

Effect: Proclamation annulled


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Post-Proc: Election Offense

Grounds: Violation of Election Code, Commission ofProhibited Acts

Failure to file statement of contributions andexpenditures obligations of candidate who

withdrew candidacy Pilar v Comelec

Investigation: Law Department or Prosecutors

Venue: Regional Trial Court

Effect: Disqualification, Fine/ Imprisonment


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The Election Laws

THANK YOU

Election Law -2 by Atty. Demigillo

Documents

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