Election Law Integrated Lecture PDF
Election Law Integrated Lecture PDF
Election Law Integrated Lecture PDF
ELECTION LAWS
1. 1987 Constitution 9. Voters Registration Act of 1996 (RA 8189)
2. Omnibus Election Code (BP 881) 10. Overseas Absentee Voting (RA 10590
3. Automated Election Law (RA 9369 amending RA 9189)
amending RA 8436) 11. Biometrics (RA 10367)
4. Synchronized Elections Act (RA 7166) 12. Lone Candidate in Special Elections (RA
5. 1991 Local Government Code (RA 7160) 8295)
6. Initiative and Referendum (RA 6735) 13. Official Sample Ballots (RA 7004)
7. Party-List System Act (RA 7941) 14. Citizenship Retention and Re-acquisition
8. Fair Election Act (RA 9006) Act (RA 9225)
When you talk about election law, its not just about Batas Pambansa 881, which is the Omnibus
Election Code. Right now, unlike the LGC 1991, we have no single law that will cover all aspects of
Election Law. Dean Andy Bau said, hopefully, in the near future, we will have one major Election
Law. For example, when we look at #3, that refers to automated election law. Clearly, a lot of the
provisions of the Omnibus Election Code are no longer relevant. When we talk about campaign, this
is covered by The Fair Election Act (RA9006). When we talk about registration, it is covered by
another law. When we talk about Overseas Absentee Voting, thats covered by another law.
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SLIDE 5: PHILIPPINE ELECTIONS (May 2016)
Figures Elective Offices
Registered Voters: 54,363,844 President: 1
Established Precincts: 369,133 Vice-President: 1
Clustered Precincts: 92,509 (not more than 7 Senators: 12 (of 24)
precincts and 800 voters) District Representatives: 235
Vote-Counting Machines (VCMs): 97,517 (Phl Party-List Representatives: 58 (59)
92,509; Overseas 120, Contingency 4,888) Autonomous Region: 1
Major Political Parties: 14 (2 dominant Provinces: 81
parties; 10 major national and 2 major local) Cities: 144
Municipalities: 1,490
So far as COMELEC is concerned for party list the computation is 58 but I believe it should be 59 because 58 is
actually less than 20%.
3 types of possible disputes when we talk about the decisions made by the COMELEC.
If we talk about Administrative, then we file it with the COMELEC En Banc. Then file a MR before
the COMELEC En Banc before elevating the matter to the Supreme Court.
If it is a judicial matter, then you file it with the Division then MR before the COMELEC En Banc,
then elevate before the SC.
Dotted line, in certain instances, even for administrative cases, there is no need for filing a MR before
COMELEC En Banc. If you are able to name and SC obviously subscribes to your position that you
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can dispense with the rule on exhaustion of administrative remedies. There are 19 or so exceptions
to the rule on exhaustion of administrative remedies.
However you must be able to distinguish if the matter is not judicial in nature, in so far as resolving
controversies, if it is rule-making, then you can elevate the matter directly to the Supreme Court. One
rule on rule-making, relative to admin law, when you talk about exhaustion of administrative
remedies, you only talk about dispute resolution. When you talk about rule-making, you do not need
to exhaust, you can seek immediate remedy before the Regular Courts. In this case, for COMELEC,
you go directly to the SC.
What are the public offices that can resolve controversies pertaining to election?
We have regular courts, that would include the ff:
MTC, RTC: when we talk about inclusion, exclusion cases.
CA: if there is a mixed question of fact or law, or when we talk about right to suffrage.
SC: suffrage and decisions made by COMELEC and the electoral tribunals
PET, SET, HRET : 2 cases you can bring to these electoral tribunals
1) Election protest
2) Quo Warranto Case
COMELEC:
serves as the national Board of Canvassers for
Senators
Party-list representatives
Regional officials
COMELEC En Banc
COMELEC Divisions ( 3-3)
Board of Canvassers - under control and supervision
Board of Election Inspectors
Law Department
Authority to file, investigate and prosecute election offenses
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Under the current laws, the prosecutors/fiscals have concurrent jurisdiction to investigate
and hear election offenses
DOJ is also relave because the prosecutorial system is under the DOJ and they can
prosecute election offenses
For disqualification cases, prior to proclamation, for all positions, they are cognizable by the
COMELEC Division at the first instance
Example, you want to question the qualification of the President, prior to proclamation, then you file
it with the COMELEC Division, not with the PET
The jurisdiction of the electoral tribunals are only reckoned after the proclamation.
But for a quo warranto case, for lack of eligibility, which effectively questions the qualification of a
candidate, but in this case, they are now proclaimed candidates, you apply the various jurisdictions
depending on the positions.
Proclamation for; done by
Pres, VP - COMELEC
Senators, Party-list Representatives, Regional Officials - COMELEC En Banc
Provincial Officials - Provincial Board
City Officials - City Board
Municipal Officials - Municipal Board
Postponement and Failure under RA 7166, they are now considered as administrative cases and
cognizable by COMELEC En Banc at the first instance
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Suffrage is now considered as a right, and no longer an obligation. Voters who do not vote, or do not
register, cannot be penalized for not exercising this right.
Qualifications are defined in the Constitution. Congress cannot impose additional substantive
requirements. Congress can only impose procedural requirements, such as continuing system of
registration.
The right to vote is different from the right to register. Right to vote is reckoned on election day. But
the the right to register can be prior to election day, for as long as you are qualified on election day
(youre not yet 18, but you will be on election day), you have the right to register.
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In one case, you were not able to file your registration because you were late for your flight, that is
not a ground for inclusion.
Again, important would be jurisdiction, MTC then RTC then SC for a pure question of law. Never
elevate it to COMELEC because again under the Constitution, COMELEC has no right / authority to
resolve matters pertaining to suffrage (ie qualification and disqualification of voters).
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SLIDE 26: CANDIDATE: EVOLUTION OF DEFINITION
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Even if you garnered the plurality of votes, all those votes will be considered void, and effectively the
2nd place is the 1st placer.
Can COMELEC not accept a CoC? No. The acceptance is ministerial. However, COMELEC, in the
exercise of its discretionary powers may disqualify a candidate depending on the ground.
SLIDE 28: INCUMBENTS: ADVANTAGES
1. Elective officials not considered resigned regardless of elective position sought (appointive officials
considered ipso facto resigned upon filing of certificate of candidacy)
2. Electioneering does not extend to acts of governance, provided no intention to campaign for or against a
candidate (not all acts of beneficence is considered campaigning)
3. News about incumbents not considered campaigning, thus, not covered in caps on campaign media
exposure
4. Governance collaterals and announcements may not be required to be removed since not considered
campaigning without intent to campaign
5. Rules of Appreciations favor incumbents (no longer applicable in an automated election where names
are printed on ballots)
Once upon a time, all elective officials who will file for a CoC for an elective position, except for
President and Vice President, are considered resigned upon the filing. For appointive officials, upon
filing a CoC, you are considered ipso facto resigned.
Under the Fair Election Act (FEA), we have different rules. Depending whether youre appointive or
elective.
For appointive the rule is the same. Considered ipso facto resigned upon filing CoC. (not at the
start of campaign period)
For elective whether higher, lower or same office, you are not considered resigned. Because that
provision in the OEC, which considered these people resigned, has been expressly repealed by the
FEA.
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If you do not possess the qualifications, what prevails? The fact that you are qualified or the entries
in your CoC? What is important is that you are actually qualified. Even if you make wrong entries
that will show otherwise in your CoC. If you do not possess any of the qualifications, then you file a
Petition to Disqualify before the COMELEC Division because this is judicial. You can file it any time
before proclamation and it is summary in nature.
Assuming you were unable to find any case prior to proclamation, you still have a remedy. But this
time, youre now proclaimed a voter can file a Quo Warranto case.
There are two subsets of election offenses, and not all of these offenses can be a ground for a petition
to disqualify a candidate, cognizable by the Comelec Division:
a. All election offenses a hundred or more election offenses enumerated in the Omnibus Election
Code and other statutes. An election offense case may be filed either before the (a) law
department of Comelec, or (b) before the prosecutors office.
b. Election offenses enumerated under Sec. 68 of the OEC the petitioner has two options:
1. To file a disqualification case before the Comelec Division, which shall be summary in
nature; or
2. To file an election offense case, either before the (a) law department of Comelec, or (b) before
the prosecutors office, which shall involve a full-blown trial before the Regional Trial Court.
Examples:
1. Vote buying. What are the options?
Either file a petition to disqualify before the Comelec Division, and/or file an election offense case
before the fiscals office or Comelec law department
2. A candidate, who is the incumbent city mayor, uses the city vehicle for campaign. What are the
options?
It is an election offense, but not one enumerated under Sec 68 of the OEC. Theres only one remedy-
file an election offense case.
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For the Commission on Election offenses, it can be filed anytime before proclamation. But for an
election offense case, the prescriptive period is 5 years.
A nuisance candidate is any person who has no bona-fide intention to run for office. However there
are nuisance candidates who win. The prescriptive period to file a case against a nuisance candidate
is just 5 days from the last day of the filing of the COC.
Elements of misrepresentation:
a. Material
b. Deliberate or wilful; and
c. The person is not actually qualified.
So even if the misrepresentation was material and deliberate, but the candidate is actually qualified,
the case should be dismissed. Material pertains to the qualifications, i.e. age, residency, literacy,
citizenship. Even if you misrepresent by using a surname of a different person, different profession,
declaring you are a member of a political party, when youre actually not misrepresentations which
may make one liable for falsification, these would not be material for a candidate to be disqualified.
But that same person can be disqualified, once convicted for falsification. Conviction for falsification
carries with it the accessory penalty of deprivation of political rights. The prescriptive period is 25
days from the filing of that particular COC.
If you knew that you were convicted of libel, which is a crime involving moral turpitude, you can be
disqualified on the ground of material misrepresentation (2016 case)
Pay particular attention to what is the appropriate caption, what are the grounds, where to file
COMELEC division, when to file is also important, who can file, what if you were not able to file, can
you still file after proclamation, and can you be substituted.
Again, there is only one ground where a candidate who has been disqualified can be substituted that
would be for commission an election offense
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Operative Act: Intent/ Design material (not all acts of beneficence are considered campaigning) and
Period (start of campaign)
Application: All Candidates for All Elective Offices
Framework: Regulated but Liberalized
Critical, essential would be the intention. The intent must be to promote the election or the defeat of
a candidate.
Why is intention relevant? Because if your intention is not for a particular candidate but to advocate
a particular issue even if it involves several candidates, like what happened in the Diocese of Bacolod
Case, that will not be considered campaigning. Therefore the rules on campaigning will not be
applicable.
And intent must also be relevant when you give out things of value, objects of value. Because if your
intention is not to campaign but its part of governance like what happened to the distribution of
basketballs bearing the name of the mayor during summer time which is campaign period, it is not
campaigning.
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SLIDE 52-62: AUTOMATED ELECTIONS
Statutory Bases: RA 9369 amending RA 8436
Automated Election System: voting, counting, consolidating, canvassing, and transmission (not
proclamation)
Automated elections, unfortunately, for barangay, it will be manual. You can automate the whole
process except proclamation. COMELEC can adopt several systems in a given elections.
Paper-Based or Direct Recording Election System: Ballots, Election Returns, Certificate of
Canvass, Statement of Votes
Comelec Discretion: AES or AESs, Paper- Based or Direct Recording
Features: Use of Ballots, Stand-alone machine, with Audit Trails, Minimum Human Intervention and
Security Measures
Right now, there must be paper ballots. Hopefully in the future, no more paper ballots, but that
would need a higher trust level.
Processes:
Casting, Counting and Transmission at Precinct Level
Consolidation and Proclamation at Canvassing Levels
Precinct-Level Result: Printing of Elections Returns (30 copies) then Electronic Transmission to
Board of Canvassers; Results loaded in Data Storage Devices
Again, at the precinct-level, the ballot is the best evidence of the vote of one person. The election
return is the evidence of votes in one precinct. A Certificate of Canvass would be the evidence of votes
at the higher level. The Statement of Votes is the breakdown at that higher level. A certificate of votes
would be either you prepare that form or its a limited number of forms for COMELEC. Right now,
people dont really use the certificate of votes because you can photocopy the printed election returns
or a certificate of canvass.
From the precinct to the next level and to the higher level, the results are transmitted electronically
for our automated election. But for the barangay elections, they will be transmitted physically or
manually.
What would be the basis of the proclamation would be what is electronically transmitted not the
printed copies of the printed returns. If its not a complete transmission and the Board has the option
to lower the threshold to 90%. It can also require the BEI to submit to it the storage device, the SD
card. There are 2 SD cards used in the elections: one, which remains in the machine up to today, and
the other one is the SD card transmitted manually/physically to the next level of the board of
canvassers. By the way, from the city to the provincial board, it is no longer an SD card. Its a CD. So
when it comes to the provincial board, CD reader.
Canvassing at BoC: Consolidation of Results in Data Storage Devices then Electronic Transmission
to Comelec (Senate and Party-List) and Congress (President and Vice-President) and Proclamation
Up to today, only Congress can look into the authenticity and due execution of what was transmitted.
Again, if you compare the canvassing before congress, the members of Congress do not look into
computer screens. They go over printed Certificates of Canvass. Hence, they can go into the due
execution and authenticity of these printed documents. But if you look at the canvassing from the other
levels of canvassing, the board will just look at computer screens. Again, as I have told you in class, its
either red, yellow or green.
Preliminaries: 6:00 to 7:00 a.m.
1) BEI sets up Polling Place
2) Pollwatchers present credentials to BEI
3) BEI posts Precinct Certified Voters List (PCVL)
4) BEI shows sealed Vote Counting Machine (VCM) and empty Ballot Box to public
5) BEI turns on Vote Counting Machine (VCM) and logs in
B.Voting Proper: 7:00 a.m. to 5:00 p.m.
1) Voters vote in the order of arrival
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2) Voter approaches BEI
3) BEI verifies Voter identity
4) BEI checks if fingers unstained with Indelible Ink (if stained, cannot vote)
5) BEI announces name of Voter
6) If no challenge or challenged dismissed, Voter signs in Election Day Computerized Voters List
(EDCVL)
7) BEI Chair:
a. Signs Ballot in space provided
b. Gives Ballot inside Secrecy Folder and Marking Pen to voter
8) Voter votes by shading circles
9) Voter inserts Ballot in the VCM
10) Ballot is accepted or rejected (given another Ballot):
a. Misread Ballot (re-fed in 4 different orientations)
b. Previously Read Ballot (diverted to Bin for Rejected Ballot)
c. Invalid Ballot
You can only be given another ballot, just one, on any of these grounds: a) misread b)
previously read c) invalid ballot. Or if its a spoiled ballot, meaning, you accidentally tear
the ballot. If the tearing is intentional, and someone saw it, you cannot be given another
ballot.
11) BEI applies Indelible Ink
Why stain your forefinger? Because that will be an evidence that you already casted you vote.
12) Voter gets voter receipt
After you vote, youre given a receipt, and you deposit your receipt in a box. You dont bring
home the receipt, because normally that receipt will be the evidence that you will use for the
consideration given you if there was vote-buying.
13) Voter returns Secrecy Folder and Marking Pen
14) Voter departs
15) Illiterates and Persons with Disability can be assisted by relative within 4th degree, person of
confidence or BEI
Can there be proxy voters? Yes for illiterate, disabled voters. And that [they require proxy]
must be reflected in the application form of that voter, so that that voter will accompany the
disabled voter.
And who can be the proxy voter? It can either be:
1. a relative, however that relative can only accompany [maximum] 3 disabled voters; or
2. any member of the Board of Election Inspectors, and there is no limit as to the number of
disabled voters the BEI can assist.
16) No premature announcement of status of voting before close of polls
Prior to the close of the polls, there should not be any pre-mature announcement. 12 noon the
board cannot say, Agra has not voted.
C. Closing of Polls: 5:00 p.m. up
1) If there are Voters within 30-meter radius, they will be allowed to vote (must fall in line, fill-up
sheet and called)
Can you still vote after 5:00pm? IT DEPENDS. If you are there at 5:00pm, within a 30meter
radius, and you fall in line and fill up a form, and when you are called you are still there, you
can still vote.
2) BEI prints 8 copies of National Election Returns (NERs) and 8 copies of Local Election Returns
(LERs)
3) VCM transmits results to:
a. Comelec
b. Transparency Server (KBP)
c. City/ Municipal Board of Canvassers (C/ M BoC)
4) VCM prints 22 copies of NERs and 22 copies of LERs
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5) BEI signs all ERs and affixes thumbmarks and places 8 NERs and 8 LERs inside Envelopes
6) Distribute all 30 NERs and 30 LERs (Next/ Higher Level of Canvassing, National and Local
Political Parties, Media, Citizens Arm, Ballot Box, Posted on Wall)
7) BEI shall post 1 copy of ER in a conspicuous place inside polling place
8) VCM prints Statistical and Audit Reports
9) Unused Ballots shall be disposed (torn lengthwise and placed in Envelopes)
10) BEI removes SD card (Slot A) and place inside Envelope (SD is Slot B not removed)
11) VCM shall be turned over to Logistics Provider or Election Officer
12) Deliver Ballot Box to the Local Treasurer
Local treasurers are important during election. If you visit your municipal hall, or city hall,
you will see the ballot boxes at office of treasurer. The treasurers are the custodians of all
ballot boxes.
Are police officers allowed inside the polling place? No, ONLY if:
1. To vote
2. When there is actual violence
a. If there is only a threat of violence, they can be called to station at the door
b. But, if threat they cannot go inside (door lang)
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SLIDE 67-68: ELECTION OFFENSES
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SLIDE 69: CASES PER CATEGORY
I have not done the multiple choice for dispute resolution. If I were to include in the choices, these
would be the choices:
If its ELECTORATE related -
Then you could file an objection (pending approval or rejection).
Once the application for objection has been approved or disapproved, you could file for
inclusion/exclusion.
You can file an annulment of the whole book; or
You can even challenge on election day.
So those are already 4 options.
Pertaining to the CANDIDATE -
BEFORE proclamation, you can have a disqualification case;
AFTER proclamation, a quo warranto.
So you have 6 options.
You question the INTEGRITY:
Postponement; or
Failure.
Then you have 8 options.
PRE-PROCLAMATION CONTROVERSY, you have 2.
But according to COMELEC, only 1.
But for barangay, there will be 2.
So you have 10 options.
POST-PROCLAMATION -
Annulment;
Protest; and
Quo Warranto.
Thats 13 options.
And ELECTION OFFENSES -
Against candidates;
For other persons not candidates.
So, there could be 15 choices in your multiple choice.
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And there could be another set of choices:
What is the caption?
What is the period?
Where do you file it?
So in one number, there could be five answers.
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