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ARTICLE IX COMELEC
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SUGGESTED ANSWER:
(a) No need to expressly impose they are accessory penalties.
(b) The pardon is void, since Luis Millanes was convicted for the
commission of an election offense and his pardon was not made
upon the recommendation of the COMELEC. Under Article IX, C,
Sec. 5 of the Constitution, no pardon for violation of an election
law may be granted without the favorable recommendation of the
COMELEC.
Judicial Review of Decisions (2001)
No XVI - In an election protest involving the position of Governor of the
Province of Laguna between "A", the protestee, and "B", the protestant,
the First Division of the COMELEC rendered a decision upholding B's
protest. Can "A" file a petition for certiorari with the Supreme Court under
Rule 65 of the Rules of Court, from the decision of the COMELEC First
Division? If yes. Why? If not what procedural step must he undertake
first? ( 5%)
SUGGESTED ANSWER: "A" cannot file a petition for certiorari
with the Supreme Court. As held in Mastura vs. COMELEC, 285
SCRA 493 (1998), the Supreme Court cannot review the
decisions or resolutions of a division of the COMELEC. "A"
should first file a motion for reconsideration with the COMELEC
en banc.
Removal from Office; Commissioners (1998)
No IX. - Suppose a Commissioner of the COMELEC is charged before
the Sandiganbayan for allegedly tolerating violation of the election laws
against proliferation of prohibited billboards and election propaganda with
the end in view of removing him from office. Will the action prosper? [5%]
SUGGESTED ANSWER:No, the action will not prosper. Under
Section 8, Article XI of the Constitution, the Commissioners of the
COMELEC are removable by IMPEACHMENT. As held in the
case of In re Gonzales. 160 SCRA 771, 774, 775, a public officer
who is removable by impeachment cannot be charged before the
Sandiganbayan with an offense which carries with it the penalty
of removal from office unless he is first impeached. Otherwise, he
will be removed from office by a method other than Impeachment.
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(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.
SUGGESTED ANSWER:
(1) No, A may not continue with his protest.....
(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 the votes is entitled to be
proclaimed elected. On this ground, it was held in Labo v.
COMELEC, 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.
2nd Placer Rule; in Quo Warranto Cases (1992)
No. 16: Edwin Nicasio, born in the Philippines of Filipino parents and
raised in the province of Nueva Ecija, ran for Governor of his home
province. He won and he was sworn into office. It was recently revealed,
however, that Nicasio is a naturalized American citizen.
a) Does he still possess Philippine citizenship?
b) If the second-placer in the gubematorial elections files a quo warranto
suit against Nicasio and he is found to be disqualified from office, can the
second-placer be sworn into office as governor?
c) If, instead, Nicasio had been born (of the same set of parents) in the
United States and he thereby acquired American citizenship by birth,
would your answer be different?
SUGGESTED ANSWER:
a) No, Nicasio no longer possesses Philippine citizenship. ...
b) In accordance with the ruling in Abella us. COMELEC, 201
SCRA 253, the second placer cannot be sworn to office, because
he lost the election. To be entitled to the office, he must have
garnered the majority or plurality of the votes.
c) Yes because he will be a dual citizen
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Disqualification; Grounds (1991)
No. 11 - 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(B.P. Blg. 881). 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 files his certificate of candidacy for
the office of Mayor in his municipality.
c) Is a petition to disqualify Millanes
(d) What are the effects of a petition to disqualify?
SUGGESTED ANSWER:
(c) In accordance with Sec. 68 of the Omnibus Election Code,
Luis Millanes may be disqualified from running for mayor as he
was convicted of an election offense.
(d) Under Sec. 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 an
intervenor, the court or the COMELEC may order the suspension
of the proclamation of the winning candidate if the evidence of his
guilt is strong.
Disualifications (1999)
No V - A.2. Under the Local Government Code, name four persons who
are disqualified from running for any elective position. (2%)
SUGGESTED ANSWER: A2.) Under Section 40 of the Local
Government Code, the following are disqualified from running for
any local elective position: 1) 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; 2) Those removed from office as
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(4) Upon his assumption to the elective office; or
(5) None of the above.
(b) Under Sec. 28 if the 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 shall constitute a
disputable presumption of the involvement of the candidate and
of his principal campaign managers in each of the municipalities
concerned, in the conspiracy.
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SUGGESTED ANSWER; An ELECTION PROTEST maybe 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.
Election Protest vs. Quo Warranto (Q5-2006)
Differentiate an election protest from an action for quo warranto. (2.5%)
SUGGESTED ANSWER: An ELECTION PROTEST is a
proceeding whereby a losing candidate for a particular position
contests the results of the election on grounds of fraud, terrorism,
irregularities or illegal acts committed before, during or after the
casting and counting of votes. On the other hand, a PETITION
FOR QUO WARRANTO is filed by any registered voter to contest
the election of any candidate on grounds of ineligibility or
disloyalty to the Republic of the Philippines.
Election Protest; Jurisdiction (1996)
No, 14: 1) As counsel for the protestant, where will you file an election
protest involving a contested elective position in: a) the barangay? b) the
municipality? c) the province? d) the city? e) the House of
Representatives?
SUGGESTED ANSWER: 1) In accordance with Section 2(2),
Article IX-C of the Constitution an election protest involving the
elective position enumerated below should be filed in the following
courts or tribunals:
a) Barangay - Metropolitan Trial Court, Municipal Circuit Trial
Court, or Municipal Trial Court
b) Municipality - Regional Trial Court
c) Province - COMELEC
d) City - COMELEC
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3. Suppose he ran as a substitute for a candidate who previously
withdrew his candidacy, will your answer be the same? Explain.
SUGGESTED ANSWER:
1. According to Section 7, Article IX-A of the 1987 Constitution,
the COMELEC shall decide by a MAJORITY VOTE of all its
members any case or matter brought before it In Cua vs.
COMELEC, 156 SCRA582, the Supreme Court stated that a twoto-one decision rendered by a Division of the COMELEC and a
three-to-two decision rendered by the COMELEC en banc was
valid where only five members took part in deciding the case.
2. 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.
3. 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.
Pre-Proclamation Contest (1987)
No. VII: "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.
SUGGESTED ANSWER: The COMELEC correctly dismissed
"B's" PREPROCLAMATION 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. (Omnibus
Election Code, sees. 243, 234-236) On the other hand, the
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Pre-Proclamation Contest vs. Election Contests (1997)
No, 17: State how (a) pre-proclamation controversies, on the one hand,
and (b) election protests, on the other, are initiated, heard and finally
resolved.
SUGGESTED ANSWER:
(A) PRE-PROCLAMATION CONTROVERSIES
a. Questions affecting the composition or proceedings of the board
of canvassers may be initiated in the board of canvassers or
directly with the COMELEC.
b. 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, 2166.)
c. The board of canvassers should rule on the objections summarily.
(Section 20, Republic Act No. 7166.)
d. Any party adversely affected may appeal to the COMELEC.
(Section 20. Republic Act No. 7166.)
e. 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 COMELEC
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 COMELEC or the
Supreme Court determines that the petition appears to be
meritorious. (Section 16, Republic Act No. 7166)
(B) ELECTION CONTESTS. An 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
3) The date of the proclamation, (Miro vs. COMELEC, 121 SCRA
466)
The following have jurisdiction over election contests:
a) Barangay officials - Inferior Court;
b) Municipal officials -Regional Trial Court;
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affected the
candidates.
standing
of
the
aggrieved
candidate
or
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C. When will the recall of an elective local official be considered
effective? {2%}
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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, G.R. No.
154829, December 10, 2003)
(c) 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.
ALTERNATIVE ANSWER: 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 are 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, G.R. No. 105111, 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, G.R. No. 106053, August 17, 1994)
Vacancy; Effect of Vice-Mayor Acting As Mayor (2002)
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SUGGESTED ANSWER:
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. His
filing of a Certificate of Candidacy for Mayor did not automatically
result to his being considered resigned (Sec. 67, Omnibus
Election Code).
Yes, the vice mayor can continue to run as vice mayor. At the
time that he filed his certificate of candidacy, the vice mayor ran
for the same office he was holding. In determining whether a
candidate is running for a position other than the one he is
holding in a permanent capacity and should be considered
resigned, it is the office he was holding at the time he filed his
certificate of candidacy should be considered.
There is no legal impediment to the vice mayor running as mayor
to replace the vice 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.
Vacancy; SB; Rule on Succession (2002)
No XV. A vacancy occurred in the sangguniang bayan of a municipality
when X, a member, died. X did not belong to any political party. To fill up
the vacancy, the provincial governor appointed A upon the
recommendation of the sangguniang panlalawigan. On the other hand,
for the same vacancy, the municipal mayor appointed B upon the
recommendation of the sangguniang bayan. Which of these
appointments is valid? (5%)
SUGGESTED ANSWER: As held in Farinas v. Barba, 256 SCRA
396 (1996), neither of the appointments is valid. Under Section 45
of the Local Government Code, in case of a permanent vacancy
in the Sangguniang Bayan created by the cessation in office of a
member who does not belong to any political party, the Governor
shall appoint a qualified person recommended by the
Sangguniang Bayan. Since A was not recommended by the
Sangguniang Bayan, his appointment by the Governor is not
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Election Protest; Substitution; Quo Warranto (2009) No. II.
Despite lingering questions about his Filipino citizenship and his
one-year residence in the district, Gabriel filed his certificate of
candidacy for congressman before the deadline set by law. His
opponent, Vito, hires you as lawyer to contest Gabriels candidacy.
(a) Before Election Day, what action or actions will you institute
against Gabriel, and before which court, commission or tribunal will
you file such action/s? Reasons. (2%).
SUGGESTED ANSWER: File with COMELEC in division, a
petition to deny due course or to cancel Certificate of
Candidacy within 25 days from the time of filing of the
COC on the ground of material representation contained
in the certificate is false; or file a petition with the
COMELEC in division to cancel the COC because he is a
nuisance candidate. There must be a showing that:
a. The COC was filed to put the election process in a
mockery or disrepute
b. Cause confusion among voters by similarity of names of
registered candidates
c. By other circumstances or acts which demonstrate that
a candidate has no bona fide intention to run for the
office for which his certificate of candidacy has been filed,
and thus prevent a faithful determination of the true will
of the electorate.
(b) If, during the pendency of such action/s but before election day,
Gabriel withdraws his certificate of candidacy, can he be substituted
as candidate? If so, by whom and why? If not, why or why not?
SUGGESTED ANSWER:
No. when the candidate who
withdraws is an independent candidate, he cannot be
substituted. Under the law, if after the last day for the
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No.X. The 1st Legislative District of South Cotabato is composed of
General Santos and three municipalities including Polomolok. During
the canvassing proceedings before the District Board of Canvassers in
connection with the 2007 congressional elections, candidate MP
objected to the certificate of canvass for Polomolok on the ground
that it was obviously manufactured, submitting as evidence the
affidavit of mayoralty candidate of Polomolok. The Certificate of
canvass for General Santos was likewise objected to by MP on the
basis of the confirmed report of the local NAMFREL that 10 elections
returns from non-existent precincts were included in the certificate.
MP moved that the certificate of canvass for General Santos be
corrected to exclude the results from the non-existent precincts. The
District Board of Canvassers denied both objections and ruled to
include the certificate of canvass. May MP appeal the rulings to the
COMELEC? Explain. (6%)
SUGGESTED ANSWER: NO. COMELECs Jurisdiction over
pre-proclamation cases pertains only to elections of
regional, provincial and city officials. (Sec. 15, RA 7166)
No pre-proclamation cases in election of national officials.
For purposes of the elections for President, V-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. ALTERNATIVE
ANSWER: (sec. 20, RA 7166) Yes. a party adversely
affected by the ruling of the board shall immediately
inform the board if he intends to appeal said ruling to the
COMELEC. The party adversely affected by the ruling may
file a verified notice of appeal with the board within a
non-extendible period of 5 days.
Three Term Limit; Contest; Substitution (2008)
No.IX. Abdul ran and won in the May 2001, 2004, and 2007 elections
for Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor
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Vacancy: Succession; Recall (2010)
No. XXII. Governor Diy was serving his third term when he lost his
governorship in a recall election.
(a) Who shall succeed Governor Diy in his office as Governor?
SUGGESTED ANSWER: The candidate who received the
highest number of votes in the recall will succeed
Governor Diy (Section 72 of the Local Government Code).
(b) Can Governor Diy run again as governor in the next election?
SUGGESTED ANSWER: Yes, because recall election is an
interruption of the consecutiveness of the term of office
it cannot be counted. A recall election is a mid-way
election and the term is not completed when one is
conducted. The third term of Governor Diy should not be
included in computing the the=ree-term limit. (Lonzanida
vs. Commission on Elections, 311 SCRA 602 [1999]).
(c) Can Governor Diy refuse to run in the recall election and instead
resign from his position as governor?
SUGGESTED ANSWER: Governor Diy cannot refuse to
run in the recall election. He is automatically
considered as a duly registered candidate. (Section
71, Local Government Code).
ALTERNATIVE ANSWER:
YES, Governor Diy is not
compelled to run in a recall election. Recall election