Election Law Review 05.06.15-2

Reviewer on Elec-on Law

Alberto C. Agra Ateneo Law School

May 1, 2015

Election Laws, Alberto C. Agra 1

2013 January 2015 Cases

Elec-on Laws

1. 1987 Cons5tu5on 2. Omnibus Elec5on Code (B.P. Blg. 881) 3. Automated Elec5on Law (R.A. No. 9369 amending

R.A. No. 8436) 4. Synchronized Elec5ons Act (R.A. No. 7166) 5. 1991 Local Government Code (R.A. No. 7160) 6. Fair Elec5on Act (R.A. No. 9006) 7. Voters Registra5on Act of 1996 (R.A. No. 8189)


Topics for Discussion

1) Commission on Elec5ons

2) Voters and Voter Registra5on

3) Elec5ve Ocials and Candidates

4) Campaign 5) Contribu5ons and

Expenditures

6) Postponement and Failure of Elec5ons

7) Automated Elec5ons 8) Pre-Proclama5on

Cases 9) Post-Proclama5on

Cases


1) Commission on Elec-ons Independent 7-Person Cons-tu-onal Body (administra5ve agency, public oce)

En Banc Quorum: always 4 members

A special division allowed if members occupy posi5on in temporary capacity or via subs5tu5on

Plenary authority to decide all ques5ons aec5ng elec5ons except the ques5on as to the right to vote

Enjoys scal autonomy; mandate to fund elec5ons includes regular and special elec5ons; can augment GAA items from savings; Shoulder all recall-related expenses

Wide discre5on in adop5ng means to carry out its mandate of ensuring HOPE (not be straitjacketed by procedural rules)

Sebng date of plebiscite

But cannot regulate speech (content) of non-candidates/ non-members of poli5cal par5es


1) Commission on Elec-ons Enforcement Power: All elec5on laws (persons and policies)

Judicial Power: Qualica5ons and Elec5on Contests (excludes Surage)

Jurisdic-on: Original (Regional, Provincial and City); and Appellate (Municipal, Barangay and Sangguniang Kabataan)

Loses jurisdic5on to HRET when [valid] proclama5on, oath and assump5on of oce

Remedies: En Banc (MR, administra5ve) and Division (1st instance, judicial); SC only nal decisions, not interlocutory


1) Commission on Elec-ons Process: Division - MR to En Banc (not SC since there is plain, adequate and speed remedy) - Cer5orari to SC

Party which is s5ll in process of incorpora5on is not a juridical person and thus no locus standi to ques5on a Comelec Resolu5on; Broadcast companies have standing in assailing Comelec Resolu5on on air5me

Judicial: Disqualica5on, Elec5on Protest, Quo Warranto, Pre-Proclama5on, Annulment of Proclama5on, Intra- and inter-party; cancella5on of a cer5cate of candidacy; leadership (not expulsion of member)

Administra-ve: Failure of Elec5ons, Postponement of Elec5ons, Elec5on Oense, Annulment of Book of Voters; cancella5on of cer5cate of candidacy based on nal judgment on convic5on with ancillary penalty of DQ

Contempt: Judicial (not Administra5ve)


2) Voters: Concepts

What? Surage is a Right (not an obliga5on) Who? Qualica5ons dened in Cons5tu5on; Disqualica5ons dened in Statute; Allow Absentee Vo5ng, Dual Ci5zens, Disabled and Illiterates to Vote

How? Procedural Requirements allowed to be imposed, Substan5ve not allowed


2) Voters: Qualica-ons Filipino Ci-zen At least 18 years of age on elec5on day Resident in Philippines for at least 1 year prior to elec5on day (domicile; permanent residency)

Resided in place wherein propose to vote for at least 6 months prior to elec5on day (permanent or temporary)

Free from Disqualica5ons In order to vote, must be a registered voter


2) Voters: Disqualica-ons

Sentenced by nal judgment imprisonment of 1 year or more

Sentenced to suer accessory penalty poli5cal rights

Adjudged by nal judgment crime involving disloyalty

Court-declared insane and incompetent persons


2) Voters: Registra-on

Nature: Con5nuing Lis-ng: Computerized List at all Levels Number: 200 Voter-Precinct (unless clustered) Changes: Permanent but subject to changes (+ or -): New Voters; Transfer; Deac5va5on and Ac5va5on; Cancella5on; Inclusion and Exclusion; and Annulment of Book of Voters


2) Voters: Deac-va-on

Disqualied to Vote Failed to Vote in 2 preceding elec5ons Registra5on Excluded by the Court Lose Filipino Ci5zenship


2) Voters: Opposi-on

What? Applica5ons not yet resolved Where Oppose? Elec5on Registra5on Board Who may Oppose? Voter, Candidate or Poli5cal Party

When? Specied Period How Oppose? File Wripen Opposi5on/ Challenge Why Oppose? Not Qualied, Fic55ous Appearance? Mandatory if applica5on opposed


2) Voters: Inclusion/ Exclusion

What? Applica5ons already acted upon Where File? MTC (not Comelec), then RTC (not Comelec), then SC (ques5on of law)

Grounds? Disapproval or Name Stricken Out (Inclusion); Not Qualied or Voter Not Real (Exclusion)

When? Specied Period


2) Voters: Annulment of Book of Voters

Annul What? Book of Voters per precinct Where File? Comelec When Filed? Normally, aqer period to le inclusion/ exclusion lapses

Who Files? Any Voter, EO or Party What Grounds? (1) Book Prepared Improperly, Prepara5on Apended with Vice or Fraud, and (2) Book contains Sta5s5cally Improbable Data (not qualica5on of voters)


2) Voters: Elec-on Day

Illegal Voter

Not registered; Use another name; Disqualied; Mul5ple Registrant (allowed to vote if properly iden:ed)

Illegal Act

Vote-Buying; Vote-Selling; Vote-Bebng: Promise to induce or withhold vote (allowed to vote if take oath)


3) Ocials: Elec-ve

Na-onal Oce

President; Vice-President; Senators (24; 1/2); Representa5ves (District and Party-List)

Local Oce

LCE: Regional Governor, Provincial Governor, City or Municipal Mayor and Punong Barangay; VLCE: Vice-Governor and Vice-Mayor; Sanggunian Members


3) Ocials: Party-List Mul5-Par5sm/ Party Loyalty/ Social Jus5ce

3 types of groups: na5onal, regional (need not be sectoral) or sectoral (principal advocacy; not exclusive list, includes LGBT; no need to show track record) par5es or organiza5ons; poli5cal par5es can provided not eld candidates for district representa5ves or through sectoral wing in a coali5on

Exclusive to Marginalized/ Nominees Organic or Synthe5c and members of party

Qualica5ons possessed 5me of appointment and tenure

Only in House (20% of Total): # of LD/ 0.8 x 0.2

2% Threshold (and un5l lled up; even if not obtain 2%); 3-Seat Maximum

Process: Registra5on and Accredita5on; Delis5ng/ Cancella5on: imputable to party (e.g. not submit 5 nominees); party-list group dis5nct from nominees


3) Ocials: Candidate Deni-on: Seeks public oce and les cer5cate of candidacy and campaign period has started (but cannot campaign before campaign period)

Nicknames must dieren5ate one candidate from another person

Ministerial Duty: If led in due form, ministerial duty to receive COC; Comelec may look into patent defects (appearing on the face) of CoCs

Eect of Non-Filing: Not a candidate (not liable for unlawful acts and omissions before becoming a candidate; before start of campaign period)

Eect of Filing: On Tenure of Incumbents (elec5ve remain in oce; appoin5ve ipso facto resigned)


3) Ocials: Subs-tu-on Grounds: (1) Death, (2) Withdrawal, and (3) Disqualica5on (not allowed if violate term limit; not meet residency requirement; CoC denied due course or cancelled nuisance and material misrepresenta5on); if invalid subs5tu5on not considered a candidate

Who? Subs5tute must be Qualied When? Up to mid-day of elec5on day Subs-tute? Qualied and Same Party Limita-ons: Subs5tuted can no longer run for any other posi5on; Withdrawal not aect liabili5es


3) Ocials: Qualica-ons Lis-ng: Set by the Cons5tu5on (na5onal) and statutes (local)

Ci5zenship DQ: aqer renuncia5on, used foreign passport 4x

Age Residency Registered Voter Literacy Free from Disqualica5ons [Undertake Drug Test under CDDA OF 2002, uncons5tu5onal]

Procedure: Electoral aspect of DQ (administra5ve proceeding): summary


3) Ocials: Disqualica-ons Lack qualica5ons/ possess some disqualica5ons

Violate Term Rule (1-2-3 terms) Violated when provincial board member elected to 4th term for renamed district; not violated when assume aqer winning elec5on protest

Commission of an elec5on oense

Nuisance Candidate Sentenced by Final Judgment (accessory penalty)

Restora5on of civil and poli5cal in the disposi5ve por5on of the presiden5al pardon amounts to express restora5on of right to hold public oce

Revised Penal Code more specic than 1991 LGC

Cancella5on of cer5cate of candidacy based on nal judgment on convic5on with ancillary penalty of DQ (administra5ve)

Willfully Commits Material Misrepresenta5on

No valid, 5mely and properly led cer5cate of candidacy

Grounds under the 1991 LGC, for local elec5ve ocials 21

3) Ocials: Disqualica-ons Lack of Qualica-ons

Grounds? Cons5tu5on or Statutes not meet residency requirement and disqualied never a candidate, de facto ocer, highest placer (2nd placer) assumes, succession does not operate

Where File? Comelec Division When File? Before Proclama5on Process? Summary, Due Process, requires a complaint/ pe55on; not motu propio unless there is nal judgment

If Not File? Quo Warranto


3) Ocials: Disqualica-ons

Commission of Elec-on Oense

What Oenses? Vote-Buying, Terrorism, Unlawful Expenditures, Unlawful Campaign, Coercion of Subordinates, Threats, Prohibi5on against Release of Public Funds (other elec5on oenses le EO case RTC hears)

If penalized in laws other than OEC, Sec5on 68 not proper

Where File? Comelec Division When File? Before Proclama5on If Not File? Elec5on Protest; Elec5on Oense


3) Ocials: Disqualica-ons

Nuisance Candidate

Who Is? Campaign Capability, Inten5on, Performance, Exposure, Plauorm, Party Alia5on, Organiza5on, Profession, Income, Health, Educa5on, Name

Where File? Comelec Division When File? Within 5 days from Last Day Filing of Cer5cate of Candidacy

If Not File? No remedy Election Laws, Alberto C. Agra 24

3) Ocials: Disqualica-ons Misrepresenta-on

What? Misrepresenta5on must be Material (pertains to Qualica5ons and Disqualica5ons; not surname, profession, poli5cal party) and Willful/ Deliberate; Even if there is misrepresenta5on, if actually qualied, not disqualied

Ground: non-residency

Not ground: Use of nicknames; profession (accountant)

Where File? Comelec Division When File? 25 days from Filing of CoC If Not File? No remedy


4) Campaign: Concept

Deni-on: Act designed to promote the elec5on or defeat of a candidate

Opera-ve Act: Intent/ Design material (not all acts of benecence are considered campaigning) and Period (start of campaign)

Applica-on: All Candidates for All Elec5ve Oces Framework: Regulated but Liberalized


4) Campaign: Allowable Forms

Forming Organiza5ons Holding Rallies Making Speeches Distribu5ng Campaign Materials Solici5ng Votes Publishing Adver5sements


4) Campaign: Propaganda

Paid Poli5cal Adver5sements Free Space and Air5me Use of Gadgets and Billboards Private Poster Areas Pos5ng in Private Places


4) Campaign: Forms

Printed Materials (8.5W x 14L) Lepers Posters (2x 3) in Poster Areas (12x 16) Rally Streamers (3x 8)


4) Campaign: Paid Ads Print: 1/4th page in broadsheet; in tabloid 3x a week Television: 120 minutes (for na5onal); 60 minutes (for local)

Radio: 180 minutes (for na5onal); 90 minutes (for local) Per sta5on, not overall

COMELEC may properly take and act on the adver5sing contracts without further proof

Repor5ng requirement for broadcast companies does not cons5tute prior restraint


4) Campaign: Unlawful Acts

Foreign Interven5on Removal or Destruc5on of Lawful Propaganda Materials not Disclose Payor Exceed Limits (Time and Space) Transporta5on, Foods and Drinks During Rallies Movie or Video on or by Candidate


5) Prohibited Contribu-ons Financing Ins5tu5ons Public U5lity Operator Natural Resources Explorer Government Contractors Franchise Holders Donee Ins5tu5on from Government

Educa5onal Ins5tu5ons Foreigners/ Foreign Corpora5ons


5) Other Prohibited Acts

Not reveal true name of contributor Not report all contribu5ons Exceed Limits (P10, P5, P3)

Includes donated and contributed funds

Not le Statement Expenditures made by non-authorized persons


5) Lawful Expenditures Use of Facili5es Travel Compensa5on Communica5ons Wripen Materials Pollwatchers

Oce/ HQ

Adver5sements Mee5ngs/ Rallies Counsel* Copying of List of Voters*

Sample Ballots* Volunteers*

(* - not included in cap) Election Laws, Alberto C. Agra 34

6) Postponement of Elec-ons

Grounds: (1) Force majeure, (2) Violence, (3) Terrorism, (4) Loss or Destruc5on of Elec5on Paraphernalia, and (5) Analogous Causes

Extent: Serious and Impossible to have free and orderly elec5ons

Condi-ons: Grounds must exist before vo5ng Authority: Comelec en banc (pe55on or motu propio); not BEI or elec5on ocers

Result: Special Elec5ons Election Laws, Alberto C. Agra 35

6) Failure of Elec-ons Grounds: (1) Force majeure, (2) Violence, (3) Terrorism, (4) Fraud, and (5) Analogous Causes

Extent: Failure to elect and aect results of elec5ons Examples: Failure - transfer of venue of coun5ng without no5ce, ballots replaced/ burned; No Failure vo5ng resumes aqer sporadic violence/ gun re, fake ballots, landslide results, vote-buying, destruc5on of copies of ERs

Condi-ons: Elec5on not held or suspended, Aqer vo5ng, During prepara5ons or transmission of elec5on returns, Canvassing

Authority: Comelec en banc (pe55on) Result: Special Elec5ons


7) Automated Elec-ons

Statutory Bases: RA 9369 amending RA 8436

Automated Elec-on System: vo5ng, coun5ng, consolida5ng, canvassing, and transmission (not proclama5on)

Paper-Based or Direct Recording Elec-on System: Ballots, Elec5on Returns, Cer5cate of Canvass, Statement of Votes

Comelec Discre-on: AES or AESs, Paper-Based or Direct Recording


7) Automated Elec-ons

Features: Use of Ballots, Stand-alone machine, with Audit Trails, Minimum Human Interven5on and Security Measures

Picture images of ballots func5onal equivalent of ballots

Vo-ng Procedure (before Board of Elec5ons Inspectors): 1.Voter gets ballots from BEI 2.Voter lls up ballot in vo5ng booth (spoil only 1x) 3.Voter axes thumbmark on vo5ng record 4.BEI applies indelible ink 5.Voter drops ballot in ballot box


7) Precinct-Count Op-cal Scan


7) Automated Elec-ons Processes: Cas5ng, Coun5ng and

Transmission at Precinct Level Precinct-Level Result: Prin5ng of Elec5ons

Returns (30 copies) then Electronic Transmission to Board of Canvassers; Results loaded in Data Storage Devices

Canvassing at BoC: Consolida5on of Results in Data Storage Devices then Electronic Transmission to Comelec (Senate and Party-List) and Congress (President and Vice-President) and Proclama5on


Municipal/City Board of

Canvassers

Provincial Board of Canvassers

National Board of Canvassers

Congress COMELEC

Precinct

Election Returns

Mun./City Canvass Report

Prov. Canvass Report

COMELEC CENTRAL SERVER

Election Watch

Groups

INTERNET

Transmission and Canvass

8) Pre-Proclama-on Cases

Aspects: BoC-related and Results-related Allowed: Objec5ons pertaining to Proceedings and Composi5on of BoC; Pollwatchers-related; Data-Storage Delayed, Destroyed, Falsied (before canvass)

Not Allowed: 1. Material Defects, Manifest Errors, Omission,

Discrepancy

2. Rules of Apprecia5on; Violence; Vo5ng Procedure; Eligibility of Voters (whether manual or AES)


9) Post-Proclama-on: Elec-on Protests

Grounds: Fraud and Irregulari5es in Cas5ng, Coun5ng and Canvassing

Documents in Ques-on/ Evidence: Ballots, ERs, CoCs and Data-Storage Devices

Venue: P/VP (PET); Senators (SET); Representa5ves (HRET); Regional; Province; City (Comelec Division); Municipality (RTC); Barangay (MTC)

Requirements: Filed by candidate; Within period; Protestee proclaimed; Payment of ling fee; Allega5ons of fraud; Iden5fy precincts; Veried; Cer5cate of non-forum shopping

Procedure: Revision; Trial; Technical examina5on op5onal even if not in rules; picture images of ballots used for revision

If prosper: protestee removed, true winner proclaimed Election Laws, Alberto C. Agra 43

9) Post-Proclama-on: Quo Warranto

Grounds: Disloyalty to Republic; Ineligibility Venue: Same as Elec5on Protest If prosper: Respondent ousted; special elec5ons or succession


9) Post-Proclama-on: Annulment of Proclama-on

Grounds: Proclama5on based on irregular and illegal canvass

Period to File: 10 days from proclama5on Venue: Comelec Division Eect: Proclama5on annulled


THANK YOU. GOOD LUCK.


Election Law Review 05.06.15-2

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Transcript of Election Law Review 05.06.15-2