Online Socratic Method in Election Law (Part 1)

1. What agency of government is tasked to administer the elections?

2. What makes Comelec the most fit for the job? Do you still remember the case of
Brillantes v. Yorac (where the SC declared as unconstitutional for being violative
of Comelec’s independence the designation by President Cory of Comelec
Associate Commissioner Haydee Yorac as Acting Comelec Chair after Davide
was named as chair of that fact-finding committee that investigated the failed
1989 coup)?

3. Can you relate to us briefly the genesis/history of Comelec? (Started as part of

Department of the Interior under the Executive Branch, and then evolved into a
Constitutional Commission. Composed of 7 commissioners [2 divisions], with
majority including the Chairman as lawyers. It is one of the “independent”
constitutional commissions (hence, no acting appointment; appointment for a
term of 7 years without reappointment).

4. What are the powers or functions of Comelec?

5. If Comelec is the one constitutionally mandated to conduct elections, is it correct

to say that the automation of elections is unconstitutional (as it would necessarily
allow another entity to do the automation project)? See Roque v. Comelec.

6. Given the independence of the Comelec, can it - on its own and without need of
any enabling legislation – decide to change the mode of the upcoming elections
– from automated (like in 2010) to hybrid (i.e., combination of manual and
automated system) to something else?

7. Does Comelec have the power to investigate and prosecute election offenses?
To the exclusion of other government agencies? Will it not violate Comelec’s
independence if it will be allowed to share said power with other agencies, like
DOJ? Read Arroyo v. DOJ and Comelec.

8. Does Comelec have the power to judge election contests? Is this power
concurrent with that of the electoral tribunals of the Senate and the House of
Representatives?

9. Which body has jurisdiction over the issue of Marinduque Congresswoman

Reyes’s qualifications (as candidate for Member, HoR given the challenge on her
citizenship)? Per Ongsiako-Reyes v. Comelec, Comelec retains jurisdiction for
the following reasons:
First, the HRET does not acquire jurisdiction over the issue of petitioner's
qualifications, as well as over the assailed COMELEC Resolutions, unless a
petition is duly filed with said tribunal. Petitioner has not averred that she has
filed such action.
 Second, the jurisdiction of the HRET begins only after the candidate is
considered a Member of the House of Representatives.
10. When is a candidate considered a Member of the House of Representatives? To
be considered a Member of the House of Representatives, there must be a
concurrence of the following requisites: (1) a valid proclamation, (2) a proper
oath, and (3) assumption of office.
Ongsingko-Reyes cannot be considered a member of the HoR because she had
an improper oath. She cannot be considered a Member of the House of
Representatives because, primarily, she has not yet assumed office. To repeat
what has earlier been said, the term of office of a Member of the House of
Representatives begins only "at noon on the thirtieth day of June next following
their election." Thus, until such time, the COMELEC retains jurisdiction.

In her attempt to comply with the second requirement, petitioner attached a

purported Oath of Office taken before Hon. Feliciano Belmonte Jr. on 5 June
2013. However, this is not the oath of office which confers membership to the
House of Representatives. Before there is a valid or official taking of the oath it
must be made (1) before the Speaker of the House of Representatives, and (2) in
open session. Here, although she made the oath before Speaker Belmonte,
there is no indication that it was made during plenary or in open session and,
thus, it remains unclear whether the required oath of office was indeed complied
with.

Lastly, the SC noted that with the failure of Reyes to file a petition with the SC
within 5 days from Comelec’s decision declaring her not qualified to run as
congresswoman because of lack of citizenship and residency requirements, the
Comelec decision attained finality.
A
11. As discussed, one of the qualifications for suffrage is residency. May an
absentee (or one who is outside the Philippines or at least outside the place
where he intends to vote) vote? Yes, if he is so covered by the laws on local (EO
No. 157, as amended by RA No. 7166) or overseas absentee voting (RA No.
9189, as amended by RA No. 10590).

12. What are the requirements for a local absentee to be allowed to vote? He should
be (a) an AFP/PNP or government employee; (b) stationed elsewhere on election
day due to performance of election duties; (c) one of those in list submitted by his
agency head to Comelec 30 days before the election.

13. May he be allowed to vote for all positions? No. Only for President, VP and
Senators (excluding HoR members – district and party-list).

14. Who else are given the privilege to be local absentee voters? Members
of media, media practitioners, including the technical and support staff, who are
duly registered voters and who, on election day, may not be able to vote due to
the performance of their functions in covering and reporting on the
 elections: Provided, That they shall be allowed to vote only for the positions of
President, Vice President, Senators and Party-List Representative.||| (An Act
Providing for Local Absentee Voting for Media, REPUBLIC ACT NO. 10380,
[2013]).

15. May Ted Failon be allowed to vote as a local absentee voter if he is in another
place to cover the concert of Madonna? No, for his absence is not election-
related.

16. How about overseas absentee, can they participate in Philippine elections? Yes.
Under RA 9189 or the Overseas Absentee Voting Act of 2003, an immigrant or a
permanent resident upon registration must execute an affidavit prepared by the
Commission on Elections (COMELEC) declaring that he or she "shall resume
actual physical permanent residence" in the Philippines not later than three years
from approval of his or her registration. They may vote for president, vice-
president, senators and party-list representatives.

However, with the passage of Republic Act 10590 amending Republic Act 9189,
Filipino immigrants abroad will no longer need to execute an affidavit stating that
they will return to the Philippines within three years before they are allowed to
vote in absentia. Hence, there is no more need for them to execute an affidavit
binding them to return to the Philippines in 3 years.

17. I thought the Constitution explicitly requires Philippine residency for voters. If that
is the case, is the overseas absentee voting law unconstitutional? No. In
Macalintal v. Comelec (2003), the Supreme Court upheld the constitutionality of
Section 5(d) of R.A. No. 9189. According to the Court, Section 2 of Article V of
the Constitution is an exception to the residency requirement found in Section 1
of the same Article. Ordinarily, an absentee is not a resident and vice versa; a
person cannot be at the same time, both a resident and an absentee. However,
under existing election laws and the countless pronouncements of the Court
pertaining to elections, an absentee remains attached to his residence in the
Philippines as residence is considered synonymous with domicile. Aware of the
domiciliary legal tie that links an overseas Filipino to his residence in this country,
the framers of the Constitution considered the circumstances that impelled them
to require Congress to establish a system for overseas absentee voting. Thus,
Section 2, Article V of the Constitution came into being to remove any doubt as to
the inapplicability of the residency requirement in Section 1. It is precisely to
avoid any problems that could impede the implementation of its pursuit to
enfranchise the largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission explicitly mandated Congress to
provide a system for overseas absentee voting.

18. What again are the qualifications of voters? Disqualifications?

19. Is registration an element of the right to vote? No. Per Yra v. Abano, "(t)he act of
registering is only one step towards voting, and it is not one of the elements that
 makes the citizen a qualified voter. . . . One may be a qualified voter without exercising
the right to vote. Registering does not confer the right; it is but a condition precedent to
the exercise of the right."

In Akbayan v. Comelec, the act of registration is an indispensable precondition to the

right of suffrage.

20. How about the need to have biometrics before voting? It is but a “procedural
requirement”, of the same nature of registration.

21. Do we have continuing or periodic registration? Continuing.

22. Under the law, “(n)o registration shall, however, be conducted during the period
starting one hundred twenty (120) days before a regular election and ninety (90)
days before a special election." Can the Comelec extend the registration period
to cover also 120/90 day-prohibitive period (even for purposes of allowing more
young voters to register)? No. Per Akbayan v. Comelec, if a special voter's
registration is conducted, then the prohibitive period for filing petitions for
exclusion must likewise be adjusted to a later date. If we do not, then no one can
challenge the Voter's list since we would already be well into the 100-day
prohibitive period. Aside from being a flagrant breach of the principles of due
process, this would open the registration process to abuse and seriously
compromise the integrity of the voter's list, and consequently, that of the entire
election.

23. Explain deactivation and reactivation of registration. Give instances when there is
deactivation (failure to vote in 2 regular elections; and failure to do biometrics).

24. Does Comelec have the authority to decide the right to vote? None, per Constitution. It is
within the inclusion/exclusion proceedings within the jurisdiction of the courts (original
jurisdiction MTCs; RTCs appellate; and SC appellate jurisdiction on question of law)

25.