Midterms Reviewer

Admin & Election Law

1. 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 Gabriel’s 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 (10%)

Petition to Deny Due Course or cancel a certificate of candidacy

 Exclusive ground is material representation
 The petition should be filed not later than 25 days from the filing of the COC
 should be decided not later than 15 days before the election
 Jurisdiction lies with the COMELEC in division

False Representation - deliberate intent to mislead, misinform or hide a fact which

would otherwise render a candidate ineligible to run for elective office; intention to
deceive the electorate

Effects of disqualification

 If candidate is disqualified before election, he shall not be voted for and any votes
cast in his favor shall NOT be counted.

 BUT, if a candidate has NOT been declared disqualified by final judgment BEFORE
the election and he is voted for and won, the court or COMELEC shall continue with
the trial and hearing and upon motion of complainant may, during the pendency
thereof order the suspension of proclamation.

 If candidate was disqualified BEFORE the election but was voted for and won, the
votes cast in his favor are stray votes, hence the 2nd placer shall be proclaimed.

 If candidate was disqualified after the election, the 2nd placer will NOT be
proclaimed. Instead, the law on succession to office shall apply.

 A disqualified candidate is NO candidate at all.

 Since a disqualified candidate is NO candidate at all, his having received the highest
number of votes does NOT validate his election.

 Where a petition for disqualification was filed before election but was adversely
resolved against said candidate after the election, his having obtained the highest
number of votes did NOT make his election valid.
 A petition for disqualification filed AFTER election does NOT have the same effect as
the one filed before the election. It is a petition for QW

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 not? (10%)

Rules on Substitution and Withdrawal of Candidacy

A candidate may withdraw his candidacy anytime before Election Day

 Substitution is only allowed in cases of : death, withdrawal or disqualification

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Admin & Election Law

 No substitution is allowed for an independent candidate

 No person who has withdrawn his COC shall be eligible as a substituted

candidate for any position

 The filing of a withdrawal shall not affect the civil, criminal or administrative
liabilities the substituted candidate may have already incurred

 In case of valid substitutions, votes cast for substituted candidates are

considered stray, except if the substitute candidate has the same surname

Substitution: Only a person belonging to and certified by, the same political party may
file a COC to replace a candidate who dies, withdraws, or is disqualified for any cause
after the last day of the filing of the COC.

A registered candidate once he has withdrawn his COC, becomes disqualified. One of
the indispensable “qualifications” for eligibility is the filing of a COC, and a candidate
who has withdrawn his COC is disqualified to be elected for a position for which he has
no COC filed in accordance with law.

The withdrawal of a COC may in turn be withdrawn for the purpose of reviving the
certificate within the period provided by law for the filing of such certificate. A
withdrawal of a withdrawal or a new COC filed after the deadline fixed would be too late
to entitle the one filing them to be considered as a registered candidate who has the
right under the OEC to file an election protest.

C.) If the action/s instituted should be dismissed with finality before the election, and Gabriel
assumes office after being proclaimed the winner in the election, can the issue of his
candidacy and/or citizenship and residence still be questioned? If so, what action or actions
may be filed and where? If not, why not? (10%)

Yes, Jurisdiction of the HRET begins only after the candidate is considered a Member of
the HOR, as stated in Sec. 17, Art. 6 of the Constitution. To be considered a Member of
the HOR, there must be a concurrence of the following requisites:

1) A valid proclamation;
2) A proper oath; and
3) Assumption of office.

A.) Petition for disqualification for:

1. Violation of Section 73 with regard to the certificate of candidacy

 Files a sworn COC within the fixed period.

 More than one office to be filled in the same election which shall not be eligible
for any of them.

2. Violation of Sec. 78 as to material misrepresentations in the certificate of

candidacy
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Admin & Election Law

B.) Petition for Quo Warranto is that which pertain to the eligibility or disloyalty of the
winning candidates.

The filing fee must be paid within the 10-day period. This defect cannot be cured by
subsequent payment1. In the same way, a petition for quo warranto may be
dismissed by the House of Representatives Electoral Tribunal if the required cash
deposit is not paid.

Requisites for election protest:

1. Filed by any registered voter
2. On grounds of eligibility or disloyalty to the Philippines
3. Must be filed within 10 days from proclamation

2.) Candidate “X” is a natural-born Filipino. When martial law was declared in 1972, he went
to Japan to evade arrest due to a subversion case against him for his activities as a staunch
critic of Marcos. In Japan, he was granted a refugee status and was then allowed to reside
there. After the EDSA revolution in 1985, he returned to the Philippines and filed his
certificate of candidacy for Governor of Sorsogon in the 1988 elections. His opponent filed a
disqualification case against him on the grounds that he is a fugitive from justice and a
permanent resident of another country. Decide. (10%)

“Fugitive from justice” includes not only those who flee after conviction to avoid
punishment but likewise who, being charged, flee to avoid prosecution. Intent to evade
is the compelling factor and there can only be an intent to evade prosecution or
punishment when there is knowledge by the respondent of an already instituted
indictment or of a promulgated judgement of conviction. Intent to evade on the part of
a candidate must therefore be established by proof that there has already been a
conviction or at least, a charge has already been filed, at the time of flight.

In the given facts, the purpose of X to go to Japan is to evade arrest due to a subversion case
instituted against him. Therefore it is clear that there is intent to evade hence, he is considered
fugitive from justice.

On the other hand, Respondent is a natural born citizen of the Philippines and lost of this
citizenship may be done thru the 3 modes specified in the Constitution:

1.) Naturalization in a foreign country;

2.) Express renunciation of citizenship; and
3.) Subscribing to an oath of allegiance to support the Constitution or laws of a foreign country.

However, Filipino citizens who have lost their citizenship may however reacquire the same thru;

(1) by naturalization,
(2) by repatriation, and
(3) by direct act of Congress.

If he was originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino. In order to qualify a candidate for
public office, he is required to take not only the Oath of Allegiance to the Republic of the
Philippines but also to personally renounce foreign citizenship.
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Admin & Election Law

3. Explain fully the distinction between postponement of elections under Sec. 5 and failure of
elections under Sec. 6 of the Omnibus Election Code. How and what body or tribunal decides
on the postponement, failure and calling of special elections? (10%)

Postponement of Election (V-O-T-R- F) Failure of Election (O-F-F T-V)

Postponement or failure of election and calling of special election shall be decided by only
COMELEC en banc.
1. Violence 1. Other analogous cases
2. other analogous causes of such nature 2. force majeure
that the holding of a free, orderly and 3. fraud
honest election should become 4. terrorism
impossible 5. violence
3. terrorism
4. loss or destruction of election
paraphernalia or records
5. force majeure
Based on such grounds, COMELEC may motu These grounds must cause the election to be
proprio or upon petition, after due notice and not held on the date fixed or after voting and
hearing declare or postpone the election to a during the preparation, transmission of the ER
date reasonably close but not later than 30 or after the voting and during the preparation
days after the cessation of the cause of the and the transmission of the ER or in the
postponement (this period is only directory). custody or canvass thereof, such election
results in failure to elect and such failure
would affect the result of the election.

COMELEC shall on the basis of the verified petition, after due notice and hearing call for the
continuation of the election not held, suspended or which resulted in a failure to elect on a
reasonably close date in which case NOT later than 30 days after the cessation of the cause of
such failure.

Pre-condition for declaring failure of election:

1. That no voting has been held in any precinct because of force majeure, violence or
terrorism and

2. That the votes not cast therein are sufficient to affect the results of the election.

NOTE: The two must concur to justify a special election. The grounds may occur before or after
the casting of votes or on the day of the election.

Particulars:

1. There is failure of election when NO actual voting took place, or even if there is, there is
failure to elect, as when the ballot box is snatched, burned or lost.

2. Destruction and loss of copies of ER intended for BOC on account of violence is NOT
failure of election.

3. There is failure of election only when the will of the electorate has been muted and
cannot be ascertained.
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4. General rule is that terrorism may NOT justify declaration of failure of election through
the misdeeds of only a few. However, where terrorism is so prevalent as to warrant a
declaration that no voting actually took place, then there is failure of election.

5. Mere fact that the transfer of polling place was NOT made in accordance with law does
NOT justify failure of election UNLESS the number of uncast votes will affect the results
of the election

Requisites for holding special election:

1. there is a failure of election and

2. that such failure would affect the results of the election

To annul an election, two conditions must be present:

 the illegality must affect more than 50% of the votes cast, and
 the good votes can be distinguished from the bad votes.

1. If there is failure of elections, no winner can be declaredi. If the alleged fraud and
irregularities did not prevent or suspend the holding of the elections, there is no
failure of electionsii. There can be failure of election in a political unit only if the will
of the majority has been defiled and cannot be ascertained.

2. Simply deducting the election results of certain municipalities subject of a petition

for failure of elections does not necessarily establish the theory that the over-all
election will not change. The possibility that the results of the special elections may
still change the standing of the candidates cannot be discountediii.

3. To warrant a declaration of failure of elections, the commission of fraud must be

such that it prevented or suspended the holding of an election, or the preparation
and transmission, custody and canvass of the election returns. These essential facts
must be establishediv. In such case, the winner cannot be determined or that nobody
emerged as winner. The proper remedy in assailing that election returns were
manufactured as they were allegedly prepared by one person is to seek a recount
which is a proper subject of an election protest.v

4. There is failure of elections when the venue for counting was transferred without
notice to or conformity of the candidates and watchers and where canvassing was
done without their presence. While casting took place, the irregularities that
marred the counting and canvassing must result in failure to electvi.

5. There is no failure of elections when after the firing of guns, voting resumed vii. There
is also no failure on the grounds that there were ballot box snatching, ballots were
filled up with the name of respondent, ballots were not signed at the back by
members of the board of election inspectorsviii, and massive substitution of votersix.

6. Manual Counting of votes when automated machines failed to read the ballots is not
a ground for failure since voters were able to cast their votes freely and votes were
counted correctly.x

7. The fact that a candidate for provincial office has been proclaimed and has assumed
office does not deprive the Comelec of its authority to annul any canvass and illegal
proclamationxi.
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8. Only the Comelec en banc has the authority to declare a failure of electionsxii.

9. The Comelec can set a date after the 30-day period from the cessation of the cause
of the failure of election when the dates for the special election were the nearest
dates available from the time the failure was determined.

10. A special election may also be ordered by the Comelec when the transfer of the
polling place was made in blatant disregard of Comelec Resolution No. 4360
specifying the polling places and also Sections 153 and 154 of the Omnibus Election
Code. Changes may be initiated by written petition of the majority of the voters of
the polling place or agreement of all the political parties or by resolution of the
Comelec after notice and hearingxiii.

11. An action for declaration of failure of elections is different from a pre-proclamation

controversy. The former case involves an examination of election fraud, technical
examination of election documents, and comparison of signatures which is not the
case in pre-proclamation cases.xiv

4. What are the rights of a watcher? (10%)

Rights and Duties of Watchers:

1. Stay in the place reserved for them inside the polling place

2. Witness and inform themselves of the proceedings of the BEI

3. take notes and photographs of the proceedings

4. file protests against any irregularity or violation of the law

5. To obtain from the BEI a certificate as to the filing of such protest and/or of the
resolution thereof

6. Read the ballots after they have been read by the chairman, as well as the ERs after
they shall have been completed and signed by the members of the BEI without
touching them

7. be furnished with a certificate of the number of votes cast for each candidate duly
signed and thumbmarked by the members of the BEI.

5. What are the functions and powers of the Board of Election Inspectors? (10%)

Powers of BEI

a. Conduct the voting and counting of votes in their respective polling places;

b. Act as deputies of the Commission in the supervision and control of the election in
the polling places wherein they are assigned, to assure the holding of the same in a free,
orderly and honest manner; and

c. Perform such other functions prescribed by this Code or by the rules and regulations
promulgated by the Commission.
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 Members of the BEI shall not be relived or substituted unless for a cause and
after due hearing.

 Every vacancy in the BEI shall be filled for the remaining period.

 The meeting of the BEI shall be public and shall be held only in the polling place
authorized by the Commission.

 No members of the BEI shall engage in any partisan political activity or take part
in the election except to discharge his duties as such and to vote.

 If at the time the BEI must meet, all the position in the BEI are vacant, the
watchers present may designate voters of the polling place to act in the place of
said members until the absentees shall appear or the vacancies are filled.

 Member or substitute of BEI members who absented himself with the intention
of obstructing the performance of the duties of the board may be arrested
through the order of the member or members of the BEI present.

6. Pedro Reyes is an incumbent Vice-Mayor of Quezon City. He intends to run in the coming
elections for the position of City Mayor of Quezon City whose incumbent mayor would have
fully served three consecutive terms by 2010. Would Pedro Reyes have to give up his position
as Vice-Mayor - - (10%)

a. Once he files his certificate of candidacy; or

b. When the campaign period starts; or
c. Once and if he is proclaimed winner in the election; or
d. Upon his assumption to the office; or
e. None of the above.

Sec. 67 of Omnibus Election Code states that “Candidates holding elective office” - Any
elective official, whether national or local shall be considered ipso facto resigned upon the
filing of his COC. However, RA 9006, otherwise known as the Fair Election Act repealed Sec.
67 of the OEC. Now, elective officers are not considered resigned upon filing of the COC.
This provision prevents the candidate to use the funds of the town he is previously
governing while running to another position. Therefore, Pedro Reyes will not have to give
up his position as Vice-Mayor.

7. If Pedro Reyes were, instead, an incumbent Congressman of Quezon City, who intends to
seek the mayoralty post in Quezon City, would your answer be the same? IF not, which would
be your choice? (10%)

Yes, since Sec. 67 of the OEC was repealed by RA 9006, Fair Election Act, elective
officers are not considered resigned upon filing of the CEC however, in the event that
Pedro Reyes won as Congressmen, there must be a concurrence of the following
requisites requisite before he can be considered a Member of the HOR,:

1) A valid proclamation;
2) A proper oath; and
3) Assumption of office.

Therefore, he should give up his position as Vice-Mayor upon his assumption to the
office of Congressmen.
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8. In the coming elections, explain how the AES and PCOS work? (10%)

SEC. 5 Authority to Use an Automated Election System. - To carry out the above-stated
policy, the Commission on Elections, herein referred to as the Commission, is hereby
authorized to use an automated election system or systems in the same election in
different provinces, whether paper-based or a direct recording electronic election
system as it may deem appropriate and practical for the process of voting, counting of
votes and canvassing/consolidation and transmittal of results of electoral exercises:
Provided, that for the regular national and local election, which shall be held
immediately after effectivity of this Act, the AES shall be used in at least two highly
urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen
by the Commission: Provided, further, That local government units whose officials have
been the subject of administrative charges within sixteen (16) month prior to the May
14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen
without the consent of the Sanggunian of the local government unit concerned. The
term local government unit as used in this provision shall refer to a highly urbanized city
or province. In succeeding regular national or local elections, the AES shall be
implemented nationwide."

SEC.6. Minimum System Capabilities. - "The automated election system must at least
have the following functional capabilities:
(a) Adequate security against unauthorized access:
(b) Accuracy in recording and reading of votes as well as in the tabulation,
consolidation/canvassing, electronic transmission, and storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of the vote
recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the
correctness of reported election results;
(g) An election management system for preparing ballots and programs for use in the
casting and counting of votes and to consolidate, report and display election result in
the shortest time possible;
(h) Accessibility to illiterates and disable voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper resource used
in the election process;
(m) Utilize or generate official ballots as herein defined;
(n) Provide the voter a system of verification to find out whether or not the machine has
registered his choice; and
(o) Configure access control for sensitive system data and function.

"In the procurement of this system, the Commission shall develop and adopt an evaluation
system to ascertain that the above minimum system capabilities are met. This evaluation
system shall be developed with the assistance of an advisory council."
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