AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT
ADHIKAIN PARA SA TAO, INC vs. COMMISSION ON ELECTIONS
(COMELEC)
G.R. No. 162203. April 14, 2004
FACTS:
On November 20, 2003, Aklat filed a Petition for declaration of re-
qualification as a party-list organization for purposes of the May 2004
elections. It alleged in its petition that it participated in the 2001 elections
but was disqualified by the Comelec as it was found not to have complied
with the guidelines set by the Court in the Bagong Bayani case for party-list
organizations to qualify and participate as such in the party-list elections.
Accordingly, Aklat re-organized itself in order that it will comply with the 8-
point guidelines enunciated by the SC in the said case.
Comelec dismissed the petition stating that Aklat cannot be considered as
an organization representing the marginalized and underrepresented groups
as identified under Section 5 of R.A. 7941. According to the Comelec, Aklats
statement that it has re-organized itself does not cure this defect as there
is nothing in the petition which will help us identify what particular
marginalized and underrepresented group AKLAT is now representing.
Further, the Comelec held that AKLAT lumped all the sectoral groups
imaginable under the classification of regular members just to convince us
that it is now cured of its defect.
Aklat filed a Motion for Reconsideration substantially averring that it has
reorganized itself and taken the necessary steps to make it an organization
of, by and for the marginalized and underrepresented groups of society,
particularly the indigenous cultural communities and the youth. To this end,
it has allegedly effected a fundamental change in its purposes as an
organization, nature of its membership and focus of its programs.
The Comelec denied the motion in its questioned Resolution on three
grounds, namely: the petition was filed beyond the deadline set by the
Comelec in Resolution No. 6320 for registration of party-list organizations;
the petition was not one for re-qualification as Aklat was never a
registered party-list organization having failed to meet the eight-point
guidelines set by the Court in the Bagong Bayani case; and that its decision
not to extend the deadline for registration of party-list organizations
is valid, the Comelec being in the best position to make such a
determination.
ISSUES:
1. Is the petition filed out of time?
2. Does AKLAT meet the eight-point guidelines set by the Court in the
Bagong Bayani case?
RULING:
1. YES. R.A. 7941 provides:
Sec. 5. Registration.Any organized group of persons may register as
a party, organization or coalition for purposes of the party-list
system by filing with the COMELEC not later than ninety (90) days
before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national,
regional or sectoral party or organization or a coalition of such
parties or organizations, attaching thereto its constitution, by-laws,
platform or program of government, list of officers, coalition
agreement and other relevant information as the COMELEC may
require: Provided, That the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and
professionals.
By its wording, R.A. 7941 itself supports the Comelec’s position that
the period stated therein refers to the prohibitive period beyond
which petitions for registration should no longer be filed nor
entertained. Put elsewise, it is simply the minimum countback
period which is not subject to reduction since it is prescribed by law,
but it is susceptible of protraction on account of
administrative necessities and other exigencies perceived by
the poll body.
Verily, the Comelec has the power to promulgate the necessary
rules and regulations to enforce and administer election laws. This
power includes the determination, within the parameters fixed by
law, of appropriate periods for the accomplishment of certain pre-
election acts like filing petitions for registration under the party-list
system. This is exactly what the Comelec did when it issued its
Resolution No. 6320 declaring September 30, 2003, as the deadline
for filing petitions for registration under the party-list system.
Considering these, as well as the multifarious pre-election activities
that the Comelec is mandated to undertake, the issuance of its
Resolution No. 6320 cannot be considered tainted with grave abuse
of discretion.
2. NO. It should be noted that it was Aklat which asserted in its petition
before the poll body that it has re-organized and is now applying for
re-qualification after its de-registration for failure to comply with the
guidelines set forth in the Bagong Bayani case. Thus, the Comelec
cannot be faulted for relying on its earlier finding, absent any
evidence in Aklats petition to the contrary, that Aklat is not an
organization representing the marginalized and underrepresented
sectors, but is actually a business interest or economic lobby group
which seeks the promotion and protection of the book publishing
industry.

Significantly, Aklat and A.K.L.A.T. have substantially the same

incorporators. In fact, four (4) of Aklats six (6) incorporators[14]
are also incorporators of A.K.L.A.T.[15] This substantial similarity is
hard to ignore and bolsters the conclusion that the supposed re-
organization undertaken by Aklat is plain window-dressing as it has
not really changed its character as a business interest of persons in
the book publishing industry.

The Court observes that Aklats articles of incorporation and

document entitled The Facts About Aklat which were attached to its
petition for re-qualification contain general averments that it
supposedly represents marginalized groups such as the youth,
indigenous communities, urban poor and farmers/fisherfolk. These
general statements do not measure up to the first guideline set by
the Bagong Bayani case for screening party-list participants, i.e.,
that the political party, sector, organization or coalition must
represent the marginalized and underrepresented groups identified
in Section 5 of R.A. 7941. In other words, it must showthrough its
constitution, articles of incorporation, bylaws, history, platform of
government and track recordthat it represents and seeks to uplift
marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a conflict of
interests, it has chosen or is likely to choose the interest of such
sectors.

In this regard, the Court notes with approval the OSGs contention
that Aklat has no track record to speak of concerning its
representation of marginalized and underrepresented constituencies
considering that it has been in existence for only a month prior to
the filing of its petition for re-qualification.

It should finally be emphasized that the findings of fact by the

Comelec, or any other administrative agency exercising particular
expertise in its field of endeavor, are binding on the Supreme Court.
G.R. No. 179271
BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND
TRANSPARENCY (BANAT), versus COMMISSION ON ELECTIONS
(sitting as the National Board of Canvassers)
ARTS BUSINESS AND SCIENCE PROFESSIONALS, AANGAT
TAYO,COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR CITIZENS), Intervenors.
x---------------------------------------------------------------------x
G.R. No. 179295
BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC. and ABONO versus COMMISSION
ON ELECTIONS
FACTS:
The 14 May 2007 elections included the elections for the party-list
representatives.
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of
Party-List Representatives Provided by the Constitution before the NBC.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC
Resolution No. 07-60 which proclaimed thirteen (13) parties as winners
in the party-list elections.
Pursuant to said resolution, the COMELEC, acting as NBC, promulgated NBC
Resolution No. 07-72, which declared the additional seats allocated to the
appropriate parties. Such additional seats were computed by the COMELEC
through the interpretation of the Veterans Ruling.
Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-
88 denying the petition for being moot and academic. The petition was
resolved in NBC Resolution No. 07-60 stating that the total number of
seats of each winning party, organization or coalition shall be determined
pursuant to the Veterans Case formula upon completion of the canvass of
the party-list results.
BANAT filed a petition for certiorari and mandamus assailing the ruling in
NBC Resolution No. 07-88. (Did not file an MR)
In the second case, petitioners asked the COMELEC, acting as NBC, to
reconsider its decision to use the Veterans formula as stated in its NBC
Resolution No. 07-60 because the Veterans formula is violative of the
Constitution and of RA 7941.
Philippine-style party-list election has at least four inviolable parameters:
20% allocation, 2 %- 1 seat, 3 seat-limit, proportional representation on
additional seats.
PROPER ALLOCATION OF SEATS IN PARTY-LIST
BANAT presents two interpretations through three formulas to allocate
party-list representative seats.
1. The remaining seats shall, after deducting the seats obtained by the
party-list groups under the immediately preceding paragraph and
after deducting from their total the votes corresponding to those
seats, the remaining seats shall be allotted proportionately to all the
party-list groups which have not secured the maximum three (3)
seats under the 2% threshold rule, in accordance with Section 12 of
RA 7941. = 44 seats
2. 2% vote requirement unconstitutional. BANAT used two formulas to
obtain the same results: one is based on the proportional
percentage of the votes received by each party as against the total
nationwide party-list votes, and the other is by making the votes of
a party-list with a median percentage of votes as the divisor in
computing the allocation of seats. = 34 seats
BAYAN MUNA ET AL rejected the 3 seat cap but accepts the 2% threshold.
After determining the qualified parties, a second percentage is generated
by dividing the votes of a qualified party by the total votes of all qualified
parties only. The number of seats = total party list seats x the total party-
list seats available with the second percentage.
There will be a first round of seat allocation, limited to using the whole
integers as the equivalent of the number of seats allocated to the concerned
party-list. After all the qualified parties are given their seats, a second round
of seat allocation is conducted. The fractions, or remainders, from the whole
integers are ranked from highest to lowest and the remaining seats on the
basis of this ranking are allocated until all the seats are filled up.
RULING:
NUMBER OF PARTY-LIST REPRESENTATIVES: FORMULA
Number of seats Number of seats available to
available to legislative x .20 = party-list representatives
districts
.80
This formula allows for the corresponding increase in the number of seats
available for party-list representatives whenever a legislative district is
created by law.
ALLOCATION OF SEATS
This Court finds that the two percent threshold makes it mathematically
impossible to achieve the maximum number of available party list seats
when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional
seats frustrates the attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall consist of party-list
representatives. We therefore strike down the two percent threshold only
in relation to the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941. The two percent threshold
presents an unwarranted obstacle to the full implementation of Section 5(2),
Article VI of the Constitution and prevents the attainment of the broadest
possible representation of party, sectoral or group interests in the House of
Representatives.
In determining the allocation of seats for party-list representatives under
Section 11 of R.A. No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be ranked from
the highest to the lowest based on the number of votes they garnered during
the elections.
2. The parties, organizations, and coalitions receiving at least
two percent (2%) of the total votes cast for the party-list system shall be
entitled to one guaranteed seat each.
3. Those garnering sufficient number of votes, according to the
ranking in paragraph 1, shall be entitled to additional seats in proportion to
their total number of votes until all the additional seats are allocated.
4. Each party, organization, or coalition shall be entitled to not
more than three (3) seats.
In computing the additional seats, the guaranteed seats shall no
longer be included because they have already been allocated, at one seat
each, to every two-percenter. Thus, the remaining available seats for
allocation as additional seats are the maximum seats reserved
under the Party List System less the guaranteed seats. Fractional
seats are disregarded in the absence of a provision in R.A. No. 7941 allowing
for a rounding off of fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit
our allocation of additional seats to the two-percenters.
% of votes of PL= no. of votes of each PL/ total no. of votes for all PL
There are two steps in the second round of seat allocation.
First, the percentage is multiplied by the remaining available seats, 38,
which is the difference between the 55 maximum seats reserved under the
Party-List System and the 17 guaranteed seats of the two-percenters. The
whole integer of the product of the percentage and of the remaining
available seats corresponds to a partys share in the remaining available
seats.
Second, we assign one party-list seat to each of the parties next in rank
until all available seats are completely distributed. We distributed all of the
remaining 38 seats in the second round of seat allocation.
Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled.
PARTICIPATION OF MAJOR POLITICAL PARTIES IN PARTY-LIST
ELECTION
By a vote of 8-7, the Supreme Court continued to disallow major political
parties (the likes of UNIDO, LABAN, etc) from participating in the party-list
elections.
Although the ponencia (Justice Carpio) did point out that there is no
prohibition either from the Constitution or from RA 7941 against major
political parties from participating in the party-list elections as the word
“party” was not qualified and that even the framers of the Constitution
in their deliberations deliberately allowed major political parties to
participate in the party-list elections provided that they establish a sectoral
wing which represents the marginalized (indirect participation), Justice
Puno, in his separate opinion, concurred by 7 other justices, explained that:
1. We interpret the Constitution to give utmost deference to the
democratic sympathies, ideals and aspirations of the people. More than
the deliberations in the Constitutional Commission, these are expressed
in the text of the Constitution which the people ratified. Indeed, it is
the intent of the sovereign people that matters in interpreting
the Constitution. In Civil Liberties Union vs Exec Sec, debates in
constitutional convention "are of value as showing the views of the
individual members, and as indicating the reason for their votes, but
they give us no light as to the views of the large majority who did
not talk, much less of the mass or our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law.
2. Party-list system as a social justice vehicle, the Court batted for the
empowerment of the masses:
Similarly, limiting the party-list system to the marginalized and
excluding the major political parties from participating in the election
of their representatives is aligned with the constitutional mandate to
reduce social, economic, and political inequalities, and remove cultural
inequalities by equitably diffusing wealth and political power for the
 common good. Party list system was enacted to give hope to the
marginalized and underrepresented in the society.

20 % ALLOCATION MERELY A CEILING

The 20% allocation for party-list representatives is merely a ceiling –
meaning, the number of party-list representatives shall not exceed 20% of
the total number of the members of the lower house. However, it is not
mandatory that the 20% shall be filled (by Consti and RA 7941).

3-SEAT CAP
The three-seat cap, as a limitation to the number of seats that a qualified
party-list organization may occupy, remains a valid statutory device that
prevents any party from dominating the party-list elections. Seats for party-
list representatives shall thus be allocated in accordance with the procedure
stated above.
ROSALINDA A. PENERA vs. COMMISSION ON ELECTIONS and EDGAR
T. ANDANAR
G.R. No. 181613 November 25, 2009
FACTS: Penera and private respondent Edgar T. Andanar were mayoralty
candidates in Sta. Monica during the 14 May 2007 elections. On 2 April 2007,
Andanar filed before the Office of the Regional Election Director, Caraga
Region (Region XIII), a Petition for Disqualification against Penera, as well
as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to
her political party, for unlawfully engaging in election campaigning and
partisan political activity, i.e. motorcades conducted after filing of the
certificate of candidacy, prior to the campaign period.
Penera filed a motion for reconsideration of this Court’s Decision of 11
September 2009.The assailed Decision dismissed Penera’s petition and
affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well
as the Resolution dated 24 July 2007 of the COMELEC Second Division. The
Decision disqualified Penera from running for the office of Mayor in Sta.
Monica, Surigao del Norte and declared that the Vice-Mayor should succeed
Penera.
ISSUE: Is Penera guilty of premature campaigning?
RULING: NO.
In Lanot v. COMELEC, it was held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot,
this Court explained:
Thus, the essential elements for violation of Section 80 of the
Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section
79(a), a candidate is one who "has filed a certificate of candidacy" to an
elective public office. Unless one has filed his certificate of candidacy, he is
not a "candidate." The third element requires that the campaign period has
not started when the election campaign or partisan political activity is
committed.
Congress wanted to insure that no person filing a certificate of candidacy
under the early deadline required by the automated election system would
be disqualified or penalized for any partisan political act done before the
start of the campaign period. Thus, in enacting RA 9369, Congress expressly
wrote the Lanot doctrine into the second sentence, third paragraph of the
amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be
considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period: 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 of the filing of his/her
certificate of candidacy.
In RA 9369, Congress inserted the word "only" so that the first proviso now
reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid campaign period x x x.
(Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory
directive that election offenses can be committed by a candidate "only" upon
the start of the campaign period. This clearly means that before the start of
the campaign period, such election offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are
read together, these provisions of law do not consider Penera a candidate
for purposes other than the printing of ballots, until the start of the campaign
period. There is absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election
Code should be read together with the amended Section 15 of RA 8436. A
"‘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." However, it
is no longer enough to merely file a certificate of candidacy for a person to
be considered a candidate because "any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at
the start of the campaign period for which he filed his certificate of
candidacy." Any person may thus file a certificate of candidacy on any day
within the prescribed period for filing a certificate of candidacy yet that
person shall be considered a candidate, for purposes of determining one’s
possible violations of election laws, only during the campaign period.
Indeed, there is no "election campaign" or "partisan political activity"
designed to promote the election or defeat of a particular candidate or
candidates to public office simply because there is no "candidate" to speak
of prior to the start of the campaign period. Therefore, despite the filing of
her certificate of candidacy, the law does not consider Penera a candidate
at the time of the questioned motorcade which was conducted a day before
the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended
on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007.
Penera was thus a candidate on 29 March 2009 only for purposes of printing
the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by
Penera prior to 30 March 2007, the date when she became a "candidate,"
even if constituting election campaigning or partisan political activities, are
not punishable under Section 80 of the Omnibus Election Code. Such acts
are within the realm of a citizen’s protected freedom of expression. Acts
committed by Penera within the campaign period are not covered by Section
80 as Section 80 punishes only acts outside the campaign period.

In layman’s language, this means that a candidate is liable for an election

offense only for acts done during the campaign period, not before. The law
is clear as daylight — any election offense that may be committed by a
candidate under any election law cannot be committed before the start of
the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning,
the assailed Decision ignores the clear and express provision of the law.
MIKE A. FERMIN vs. COMMISSION ON ELECTIONS and UMBRA
RAMIL BAYAMDILANGALEN
G.R. No. 179695, G.R. No. 182369 December 18, 2008
FACTS: Mike A. Fermin, the petitioner in both cases, was a registered voter
of Barangay Payan, Kabuntalan. On December 13, 2006, claiming that
he had been a resident of Barangay Indatuan for 1 year and 6 months,
petitioner applied with the COMELEC for the transfer of his registration
record to the said barangay. In the meantime, the creation of North
Kabuntalan was ratified in a plebiscite on December 30, 2006, formally
making Barangay Indatuan a component of Northern Kabuntalan.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's
application for the transfer of his voting record and registration as a voter
of Barangay Indatuan, Northern Kabuntalan. On March 29, 2007, Fermin
filed his CoC for mayor of Northern Kabuntalan in the May 14, 2007 National
and Local Elections.
Private respondent filed a disqualification case against petitioner. The
petition alleged that the petitioner did not possess the period of residency
required for candidacy and that he perjured himself in his CoC and in his
application for transfer of voting record. Elections were held without any
decision being rendered by the COMELEC in the said case. After the counting
and canvassing of votes, Dilangalen emerged as the victor. Fermin
subsequently filed an election protest with the RTC, Branch 13 of Cotabato
City.
On June 29, 2007, the COMELEC 2nd Division, disqualified Fermin for not
being a resident of Northern Kabuntalan. It ruled that, based on his
declaration that he is a resident of Barangay Payan as of April 27, 2006 in
his oath of office before Datu Andal Ampatuan, Fermin could not have been
a resident of Barangay Indatuan for at least one year. Petitioner argues
that he has been a resident of Barangay Indatuan long before the creation
of Northern Kabuntalan. This change of residence prompted him to apply for
the transfer of his voter’s registration record from Barangay Payan to
Barangay Indatuan. Moreover, the one year residency requirement under
the law is not applicable to candidates for elective office in a newly created
municipality, because the length of residency of all its inhabitants is
reckoned from the effective date of its creation
ISSUE: Is the petitioner a resident of the locality?
RULING: YES. The COMELEC to have gravely abused its discretion when it
precipitately declared that Fermin was not a resident of Northern Kabuntalan
for at least one year prior to the said elections.
The COMELEC relied on a single piece of evidence to support its finding that
petitioner was not a resident of Barangay Indatuan, Northern Kabuntalan,
i.e., the oath of office subscribed and sworn to before Governor Datu Andal
Ampatuan, in which petitioner indicated that he was a resident of Barangay
Payan, Kabuntalan as of April 27, 2006. However, this single piece of
evidence does not necessarily support a finding that petitioner was not a
resident of Northern Kabuntalan as of May 14, 2006, or one year prior to
the May 14, 2007 elections. Petitioner merely admitted that he was a
resident of another locality as of April 27, 2006, which was more than a year
before the elections. It is not inconsistent with his subsequent claim that he
complied with the residency requirement for the elective office, as petitioner
could have transferred to Barangay Indatuan after April 27, 2006, on or
before May 14, 2006.
Neither does this evidence support the allegation that petitioner failed to
comply with the residency requirement for the transfer of his voting record
from Barangay Payan to Barangay Indatuan. Given that a voter is required
to reside in the place wherein he proposes to vote only for six months
immediately preceding the election, petitioners application for transfer on
December 13, 2006 does not contradict his earlier admission that he was a
resident of Barangay Payan as of April 27, 2006. Be that as it may, the issue
involved in the Dilangalen petition is whether or not petitioner made a
material representation that is false in his CoC, and not in his application for
the transfer of his registration and voting record.
The foregoing considered, the Court finds that the Dilangalen petition does
not make out a prima facie case. Its dismissal is therefore warranted. We
emphasize that the mere filing of a petition and the convenient allegation
therein that a candidate does not reside in the locality where he seeks to be
elected is insufficient to effect the cancellation of his CoC. Convincing
evidence must substantiate every allegation. A litigating party is said to have
a prima facie case when the evidence in his favor is sufficiently strong for
his opponent to be called on to answer it. A prima facie case, then, is one
which is established by sufficient evidence and can be overthrown only by
rebutting evidence adduced on the other side.
Petition for disqualification vs Petition to deny due course to or
cancel CoC
Petition for disqualification - grounds
SEC. 68. 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, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph
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
a permanent resident or immigrant of a foreign country in accordance with
the residence requirement provided for in the election laws.
Sections 12 of the OEC
SEC. 12. Disqualifications.Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion, or for any offense for which
he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and
to hold any office, unless he has been given plenary pardon or granted
amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service or sentence, unless within the same period he again
becomes disqualified.
Section 40 of the Local Government Code (LGC)
SECTION 40. DisqualificationsThe following persons are disqualified from
running for any elective local position:
(a) Those sentence 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) Fugitive from justice in criminal or nonpolitical 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.
Petition to deny due course to or cancel CoC
Lest it be misunderstood, the denial of due course to or the cancellation of
the CoC is not based on the lack of qualifications but on a finding that the
candidate made a material representation that is false, which may
relate to the qualifications required of the public office he/she is
running for. It is noted that the candidate states in his/her CoC that he/she
is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to
be read in relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate subsequently
states a material representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or cancel such
certificate. Indeed, the Court has already likened a proceeding under Section
78 to a quo warranto proceeding under Section 253 of the OEC since they
both deal with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a Section 78 petition is filed before
proclamation, while a petition for quo warranto is filed after proclamation of
the wining candidate.
At this point, we must stress that a Section 78 petition ought not to be
interchanged or confused with a Section 68 petition. They are different
remedies, based on different grounds, and resulting in different
eventualities. Private respondents insistence, therefore, that the petition it
filed before the COMELEC in SPA No. 07-372 is in the nature of a
disqualification case under Section 68, as it is in fact captioned a Petition for
Disqualification, does not persuade the Court.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked
one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e.,
he had not established residence in the said locality for at least one year
immediately preceding the election. Failure to meet the one-year residency
requirement for the public office is not a ground for the disqualification of a
candidate under Section 68.
To emphasize, a petition for disqualification, on the one hand, can be
premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the
other hand, a petition to deny due course to or cancel a CoC can only be
grounded on a statement of a material representation in the said certificate
that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a
candidate, the person whose certificate is cancelled or denied due course
under Section 78 is not treated as a candidate at all, as if he/she never filed
a CoC. Thus, in Miranda v. Abaya, this Court made the distinction that a
candidate who is disqualified under Section 68 can validly be substituted
under Section 77 of the OEC because he/she remains a candidate until
disqualified; but a person whose CoC has been denied due course or
cancelled under Section 78 cannot be substituted because he/she is never
considered a candidate