Absentee Voting

Cordora v. COMELECG.R. No. 176947, February 19, 2009

FactsA complaint for disqualification was filed by Gaudencio Cordora

alleging that Gustavo Tambunting made false assertions in his certificate for candidacy for the 2004 elections. Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the required citizenship and residency requirements since the latter was a naturalized American citizen. However Tambunting contended that he was born to a Filipino mother and an American father making him a dual citizen which is not an impediment to his running for the elections.

IssueCordora’s petition is not an action to disqualify Tambunting

because of Tambunting’s failure to meet citizenship and residency requirements. Neither is the present petition an action to declare Tambunting a non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting for knowingly making untruthful statements in his certificates of candidacy.

Held

Petition dismissed. Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his father’s citizenship. Tambunting claims that because of his parents’ differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen.

The court agrees with Commissioner Sarmiento’s observation that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office.

persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states.

Ugodoracion v COMELECApril 18, 2008

FactsUgodoracion ang Tungol were both candidates for the position

of Mayor in the Municipality of Albuquerque, Province of Bohol in the May 14, 2007 elections. Tungol filed a disqualification complaint against Ugodoracion alleging material representation in the COC of the latter and that he failed to meet the residency requirement. Ugodoracion was said to be a green card holder since 2001.

IssueWhether there is material representation that would justify the cancellation of the COC.

Whether Ugodorocion lost his domicile of origin

HeldSEC. 74. Contents of certificate of candidacy. -- The

certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

x x x x

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election.

We agree with Ugdoracion that residence, in contemplation of election laws, is synonymous to domicile. Domicile is the place where one actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return (animus revertendi) and remain (animus manendi). It consists not only in the intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. Domicile is classified into (1) domicile of origin, which is acquired by every person at birth; (2) domicile of choice, which is acquired upon abandonment of the domicile of origin; and (3) domicile by operation of law, which the law attributes to a person independently of his residence or intention.

Japson v COMELECG.R. No. 180088, Jan. 19, 2009

FactsPetitioner Japson and Respondent Ty were both running for the

position of Mayor in the Municipality of General Macarthur, Eastern Samar, in the local elections held on 14 May 2007. Japson sought to disqualify his opponent. According to Japson, Ty was guilty of misrepresentation in his certificate of candidacy for although the latter was a natural born Filipino he acquired American citizenship and lived in the States for almost 25 years. Hence the latter could not have met the required citizenship and residency requirement. Ty argued that he had reacquired his Philippine citizenship and renounced his American citizenship, and he had been a resident of the Municipality of General Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty sought the dismissal of Japzon’s Petition in SPA No. 07-568.

IssueGiven the aforementioned facts was Ty able to meet the

citizenship and residency requirement.

HeldThe Court finds no merit in the Petition at bar.

There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen again.

It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen.

Residency in the Philippines only becomes relevant when the natural-born Filipino with dual citizenship decides to run for public office.

Certificate of Candidacy

Cipriciano v COMELECG.R. No. 158830, August 10, 2004

Facts Petitioner Elena Cipriano filed her Certificate of Candidacy for

the 2002 SK elections. However she and several others were disqualified because the COMELEC adopted a resolution

recommended by the Commission’s law department to this effect because it is said that she together with several others were not registered voters of the barangay were they intended to run, she even won the elections.

IssueMay the Commission on Elections (COMELEC), on its own, in

the exercise of its power to enforce and administer election laws, look into the qualifications of a candidate and cancel his certificate of candidacy on the ground that he lacks the qualifications prescribed by law?  This is the issue that needs to be resolved in this petition for certiorari filed by Ellan Marie P. Cipriano, the duly elected SK Chairman of Barangay 38, Pasay City, whose certificate of candidacy was cancelled by the COMELEC motu proprio on the ground that she was not a registered voter in the barangay where she intended to run.

HeldThe court disagrees.  The Commission may not, by itself,

without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form.  When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt.  This is provided in Sec. 76 of the Omnibus Election Code, thus:

Sec. 76.  Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.

The Court has ruled that the Commission has no discretion to give or not to give due course to petitioner’s certificate of candidacy. The duty of the COMELEC to give due course to certificates of candidacy filed in due form is ministerial in character.  While the Commission may look into patent defects in the certificates, it may not go into matters not appearing on their face.  The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of said body. Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the COMELEC a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false.  It states:

Sec. 78.  Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false.  The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election.

Loreta-Go v COMELECG.R. No. 147741, May 10, 2001

FactsPetitioner filed with the municipal election officer of the

municipality of Baybay, Leyte, a certificate of candidacy for mayor of Baybay, Leyte on February 27, 2001. However, on February 28, 2001 she filed another certificate of candidacy for the position of Governor, because of this she sought the withdrawal of her COC as mayor. However, the provincial election supervisor of Leyte refused to accept the affidavit of withdrawal and suggested that, pursuant to a COMELEC resolution, she should file it with the municipal election officer of Baybay, Leyte where she filed her certificate of candidacy for mayor. Only a few minutes were left before the deadline so instead of going to Baybay Leyte to personally seek the cancellation she decided to just fax her withdrawal to her father living in Balay. The father was able to send it at 12:28 am, the following day. The respondent Montejo and several other sought the disqualification of petitioner because she filed two COCs. COMELEC gave due course to the petition of Montejo. Hence this petition.

IssueIs petitioner disqualified to be candidate for governor of Leyte and mayor of Baybay, Leyte because she filed certificates of candidacy for both positions?

Was there a valid withdrawal of the certificate of candidacy for municipal mayor of Baybay, Leyte?

(a)  Must the affidavit of withdrawal be filed with the election officer of the place where the certificate of candidacy was filed?

(b)  May the affidavit of withdrawal be validly filed by fax?

HeldPetition was granted, annulling the COMELEC resolution

declaring petitioner disqualified for both positions of governor of Leyte and mayor of the municipality of Baybay, Leyte.  The filing of the affidavit of withdrawal with the election officer of Baybay, Leyte, at 12:28 a.m., 1 March 2001 was a substantial compliance with the requirement of the law.

The court holds that petitioner's withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was effective for all legal

purposes, and left in full force her certificate of candidacy for governor.

Section 73, Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, provides that:

"SEC. 73. Certificate of candidacy.- No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

"A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

"No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices."

There is nothing in this Section which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the main office of the COMELEC, the office of the regional election director concerned, the office of the provincial election supervisor of the province to which the municipality involved belongs, or the office of the municipal election officer of the said municipality.

Salcedo II v COMELEC312 SCRA 447, 1999

FactsVictorino Salcedo II and Eremelita Salcedo both ran for the

position of Mayor in the Municipality of Sara, Iolilo. Victorino filed a disqualification complaint against Ermelita since she was using the surename Salcedo when in fact her marriage to a certain Neptali Salcedo was void. In her defense, Ermelita claimed that she did not know that Neptali was already married.

IssueDid private respondent commit any material representation by

stating that her surename was Salcedo when in fact her marriage was void.

Held

Private respondent did not commit any material

misrepresentation

A false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible."

It must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision. There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled

into voting for someone else by the use of such name.

The Court AFFIRMS the en banc Resolution of the Commission on Elections denying the petition to cancel private respondent's certificate of candidacy.

Luna v COMELEC

G.R. No. 165983, April 24, 2007

Facts

Joy Chrisma Luna filed her certificate of Candidacy as a substitute candidate for Hans Roger for the 2004 elections a vice mayor of Lagayan Abra. However, Tomas Layao together with several others filed a disqualification petition against her since she was a registered voter of Bangued and not Lagayan Abra. Furthermore there can be no valid substitution since Hans Roger the candidate sought to be substituted was only 20 years old on the day of the election. COMELEC ruled in favor of the disqualification case. Hence this petition.

Issue

Whether the COMELEC committed grave abuse of discretion when it ruled that there was no valid substitution by Luna for Hans Roger.

Held

There was a valid substitution . The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. In Sanchez v. Del Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC.

Jamela Salic Maruhom v COMELECG.R. No. 179430, July 27, 2009

FactsSalic Maruhom and Abinal were bothe candidates for Mayor in

the municipality of Marantao Lanao del Sur. Abinal filed a disqualification case against Salic Maruhom due to the fact that the latter was a registered voter in two precincts, in Marantao and Marawi. Furthermore Abinal alleges that there were material representations in the COC of Maruhom regarding her name and residence in Marawi and Marantao. Maruhom filed before the COMELEC an Answer with Motion to Dismiss SPA No. 07-093 contending that she was qualified to run as municipal mayor of Marantao, as she had all the qualifications and none of the disqualifications provided by law.  A candidate could only be disqualified for a ground provided by law, and there was no law declaring double registration as a ground for disqualification.  Maruhom also insisted that she did not make false material

representations in her COC. Comelec granted the disqualification complaint

IssueWhether the COMELEC erred in declaring petitioner as a

double registrant. And disqualifying him for false representation

HeldUnder Section 78 of the OEC, a false representation of material

fact in the COC is a ground for the denial or cancellation of the COC.  The false representation must pertain to a material fact that affects the right of the candidate to run for the election for which he filed his COC.  Such material fact refers to a candidate’s eligibility or qualification for elective office like citizenship, residence or status as a registered voter. Aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible.  In other words, it must be made with the intention to deceive the electorate as to the would-be candidate’s qualifications for public office.

Given Maruhom’s double registration in Marawi and Marantao, then COMELEC should determine which registration was valid and which one was null.  COMELEC could not consider both registrations valid because it would then give rise to the anomalous situation where Maruhom could vote in two precincts at the same time.  This would be a dangerous precedent that would open the floodgates to massive election cheating and fraud.  This was precisely the situation that the COMELEC intended to address when it issued its Minute Resolution No. 00-1513 on 25 July 2000, seven years prior to the 14 May 2007 elections in which Maruhom intended to run.  To foster honesty and credibility in the registration of voters, so as to avoid the padding of vote registration, COMELEC laid down the rule in Minute Resolution No. 00-1513 that while the first registration of any voter subsists, any subsequent registration thereto is void ab initio. 

Quinto v COMELECG.R. No. 189698 February 22, 2010

FactsPetitioners sought that the provision of the Omnibus Election

code regarding the differential treatment between appointive and

elective officials be declared unconstitutional mainly because it violates the equal protection clause and was suffering from overbreadth as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants’ activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and. Appointive officials are said to be resigned from their positions once they filed their COCs. At first the complaint was granted but upon motion for reconsideration by respondent COMELEC the decision was reversed.

Issue Is the assailed provision unconstitutional for violating the equal

protection clause

HeldNo it does not violate the equal protection clause. The equal

protection clause does not demand absolute equality; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The test used is reasonableness which requires that:1. The classification rests on substantial distinctions;2. It is germane to the purposes of the law;3. It is not limited to existing conditions only; and4. It applies equally to all members of the same class. This is as evidenced by the case of Farinas v Executive Secretary

Pre election Remedies

Ong v Alegre G.R. No. 163295, January 23, 2006

FactsJohn Stanley Alegre and Francis Ong, then incumbent mayor

were both running for the position of Mayor in the May 2004 elections in San Vicente Camarinas Norte. Ong was proclaimed mayor for the 1995, 1998, and 2001 elections. However in 1998 when Ong was proclaimed the winner, an election protest was filed against him by Alegre. However the decision annulling the proclamation of Ong as winner only came out in 2001. By this time Ong had already served his full term. It is because of this event that Alegre sought for the disqualification of Ong. According to him Ong is banned to run for the 2004 elections as Mayor since he has already reached his three term limit. For his defense petitioner cites Lozanida v COMELEC. COMELEC ruled in favor of Alegre. Hence this petition.

Issuewhether or not petitioner Francis’s assumption of office as

Mayor of San Vicente, Camarines Norte for the mayoralty term  1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.

Held Petition dismissed. The assailed COMELEC resolutions are

affirmed. For the three-term limit for elective local government officials to apply, two conditions or requisites  must concur, to wit: (1) that the official concerned has been elected for three (3)  consecutive terms in the same local government post, and  (2) that he has fully served three (3) consecutive terms.

Petitioner cannot rely on the case of Lozanida v COMELEC. In this case,  The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of “failure of election”, and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.

 On the other hand, the failure-of-election factor does not obtain

in the present case. But more importantly, here, there was actually no interruption or break in the continuity of  Francis’ service respecting the 1998-2001 term.  Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties

and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

Miranda v AbayaG.R. No. 136351 July 28, 1999

FactsJose “Pempe” Miranda then incumbent mayor of Santiago City,

Isabela, filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998 elections. Three days after, a complaint to cancel certificate of candidacy was filed against him by Antonio Abaya which was granted. Shortly after the deadline for filing for candidacy, Joel Miranda filed his certificate of candidacy as a substitute for Pempe Miranda. Of course, Abaya filed a disqualification case against Joel Miranda for void substitution. After a motion for reconsideration, COMELEC granted Abaya’s complaint. Hence, this petition.

Issue1.  Whether the annulment of petitioner’s substitution and proclamation was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction; and

2.  Whether the order of the Comelec directing the proclamation of the private respondent was issued with grave abuse of discretion amounting to lack of jurisdiction.

HeldA disqualified candidate may only be substituted if he had a

valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all.  If a person was not a candidate, he cannot be substituted under Section 77 of the Code.  Besides, if we were to allow the so-called “substitute” to file a “new” and “original” certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.

Tajanan v COMELECG.R. No. 104443 April 13, 1992

Facts

In line with the 2004 and 2010 elections COMELEC issued a resolution adopting the recommendation of it’s law department regarding the limiting of the number of candidates to ensure the dignity and manageability of the election for the Offices of the President, Vice-President and Senators. This is in line with the ruling in Tajanan v COMELEC

Held“xxx This does not mean that this Court is declaring national

politics as the sole preserve of the so-called ‘traditional politicians’. However, given the complexity of the present political exercise, which involves the election of government officials from the President down to city and municipal officials. We recognize the need to keep the number of candidates to a manageable level, and this means keeping those who are not serious in running for office out of the race.”

Considering the dignity that must be accorded the Offices of the President, Vice-President and Senators, the magnitude of the responsibility of those officers, the following criteria was observed in the determination of the candidates who have bona fide intention to run for the office for which they seek to be elected:

1. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and legal qualifications of the office to which they aspire to be elected;

2. Candidates who, on the face of said certificate, filed their certificate of candidacy to put the election process in mockery or disrepute;

3. Candidates whose certificate of candidacy would cause confusion among the voters by the similarity of names and surnames with other candidates; and

4. Candidates who have no intention to run for the office for which the certificate of candidacy has been filed as shown by circumstances or acts that clearly demonstrate the lack of such bona fide intention, such as:

a) candidate who cannot wage a nationwide campaign;

b) candidates who do not have a platform of government;

c) candidates who are not nominated by a political party or are not supported by a registered political party with national constituency; and

d) candidates for president or vice-president who do not present running mates for president or vice-president, respectively, nor senatorial candidates.

Garvida v SalesG.R. No.122872, September 10, 1997

FactsLynette Garvida filed a petition for her inclusion as a member

and voter of the Katipunan ng Kabataan in Brgy. San Lorenzo, Bangui Ilocos Norte. The Board of election Tellers denied her application since she is said to be over the age limit which is 21. She was 21 and 10 mos. Old. However, the MTCT ruled that she was qualified. Having been declared qualified, she filed a certificate of candidacy for the SK chairman position. Her opponent, Sales sought her disqualification filing with the COMELEC en banc a “Petition of Denial and/or Cancellation of Certificate of Candidacy” against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The petition was sent by facsimile and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila. The COMELEC en banc sent a resolution ordering the suspension of proclamation of Garvida in the event that she wins.

Issues

1) WON the COMELEC en banc has jurisdiction to act on the petition to deny or cancel her certificate of candidacy. (not pubcor)2) WON cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK is valid

HeldLynette G. Garvida is declared ineligible for being over the age

qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. However Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy.In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself and that the jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. It is therefore the COMELEC sitting in Divisions that can hear and decide election cases.In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996.

Election Propaganda

Chavez v COMELECG.R. No. 162777, August 31, 2004

Facts

Frank Chavez filed a petition for prohibition with a writ of preliminary injunction against a resolution made by the COMELEC regarding premature campaigning. It is because of this resolution that he was ordered by COMELEC to remove the billboards containing his product endorsements along the Balintawak North Expressway months before the election. According to him, the contracts he entered into to endorse the products were made by him as a private individual.

IssueWhether the assailed provision is unconstitutional as the same is

allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth.

HeldPetition denied, the assailed resolutions are a valid exercise of

police power. A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v. COMELEC, wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or donation of print space and air time “for campaigning or other political purposes,” except to the COMELEC.  The obvious intention of this provision is to equalize, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign “war chests.” This Court ruled therein that this objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with so many of our population falling below the poverty line.

Moreover, petitioner cannot claim that the subject billboards are purely product endorsements and do not announce nor solicit any support for his candidacy. Under the Omnibus Election Code, “election campaign” or “partisan political activity” is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities included under this definition are:

(1)     Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate

(2)     Holding political caucuses, conferences, meetings, rallies,

parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3)     Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4)     Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5)     Directly or indirectly soliciting votes, pledges or support for or against a candidate

National Press Club v COMELEC 207 SCRA 1

FactsIn this case the representatives of the mass media filed a

petition in order to declare Section 11 (b) of Republic Act No. 66461 as unconstitutional. The assailed provision prevents the media industry to sell or donate space for political advertisements. Alongside the media representatives, two national candidates and one local candidate further allege that such provision is a curtailment of the right to be informed.

IssueWhether Section 11 (b) of Republic Act No. 66461 invades and

violates the constitutional guarantees comprising freedom of expression.

HeldThe Court considers that Section 11 (b) has not gone outside the

permissible bounds of supervision or regulation of media operations during election periods.Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for

by candidates for political office. Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

Philippne Press Institute v COMELEC

244 SCRA 272

FactsThis case is a petition for certiorari and prohibition with prayer

for the issuance of a temporary restraining order against a resolution made by the COMELEC. The assailed resolution was asking publishers for a free “COMELEC space” wherein they are required to provide free space in their newspapers to be used by the COMELEC for election regulation purposes. In addition to this they are asked to process raw data to make it camera- ready. They contend that this was tantamount to involuntary servitude and was not a valid exercise of police power. They move that such resolution be stricken down as unconstitutional.

In behalf of the COMELEC, the Office of the Solicitor General contended that such was not unconstitutional for it merely provided for guidelines to be followed for the procurement of COMELEC space. Furthermore there were no administrative or criminal sanctions for non- compliance. The Solicitor General is also of the view that, even if the assailed provision is mandatory, COMELEC is still mandated to regulate and supervise the information operations of the media industry in order to ensure the impartiality of the elections.

Issue

Whether Resolution No. 2772 issued by respondent Commission

on Elections is valid.

HeldAccording to the court, Section 2 of Resolution No. 2772, in its

present form and as interpreted by Comelec in its 22 March 1995 letter directives, purports to require print media enterprises to "donate" free print space to Comelec. As such, Section 2 suffers from a fatal constitutional vice and must be set aside and nullified.

As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if read as compelling publishers to "donate" "Comelec space, " may be sustained as a valid exercise of the police power of the state. This argument was, however, made too casually to require prolonged consideration on our part. Firstly, there was no effort (and apparently no inclination on the part of Comelec) to show that the police power — essentially a power of legislation — has been constitutionally delegated to respondent Commission. Secondly, while private property may indeed be validly taken in the legitimate exercise of the police power of the state, there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power.

Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of existence of a national emergency or other imperious public necessity, indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in differing parts of the country, to take private property of newspaper or magazine publishers. No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to such necessity available to the Comelec. Section 2 does not constitute a valid exercise of the police power of the State.

Osmena v COMELEC 288 SCRA 447, 1998

Facts

The petitioners Emilio Osmena and Pablo P Garcia seek for the nullification of the decision made by the supreme court in NPC v COMELEC wherein it ruled for the validity of the Electoral Reform Laws of 1987. Said law prohibits the selling and donating of space for campaign and any political purposes except for COMELEC. According to them the court erred in ruling in the NPC case that the freedom of

speech was not violated for such was a valid regulation for election purposes. According to them the ban to political advertising creates a disadvantage to the poor candidates for they are deprived of a medium which they can afford to pay unlike the more affluent candidates who can provide for other means than dissemination of information through media. Instead of leveling the playing field it worsens it.

Issue

Whether the assailed decision is unconstitutional

Held

The petition is DISMISSED. A number of decisions are cited by the court but it all came down to the fact the State can prohibit campaigning outside a certain period as well as campaigning within a certain place.  For unlimited expenditure for political advertising in the mass media skews the political process and subverts democratic self-government.   What is bad is if the law prohibits campaigning by certain candidates because of the views expressed in the ad.  Content regulation cannot be done in the absence of any compelling reason.

TELEBAP v COMELEC289 SCRA 337, 1998

Facts

TELEBAP is an organization of lawyers of radio and television broadcasting companies. GMA is a network station granted a franchise by Congress. Both contends the validity of the provision

regarding the so- called COMELEC space of Sec. 2 of the Omnibus Election Code. They argue that such is unconstitutional for it is tantamount to the taking of property without due process of law and that such was enacted in excess of the power granted to COMELEC to supervise and regulate the elections.

Issue

Whether the questioned provision is tantamount to the taking of property without due process of law and whether such is enacted in excess of the power granted to COMELEC to supervise and regulate the elections.

Held

Petition DISMISSED. The court said in its decision that with the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means through which candidates can advertise their qualifications and programs of government. More than merely depriving their qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of broadcast stations to provide air time unless paid by the government would clearly deprive the people of their right to know. Art III, §7 of the Constitution provides that "the right of the people to information on matters of public concern shall be recognized," while Art. XII, §6 states that "the use of property bears a social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty of the State to promote distributive justice and to intervene when the common good so demands."

Furthermore, it said that to affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to it that the variety and vigor of public debate on issues in an election is maintained. For while broadcast media are not mere common carriers but entities with free speech rights, they are also public trustees charged with the duty of ensuring that the people have access to the diversity of views on political issues. This right of the people is paramount to the autonomy of broadcast media. To affirm the validity of §92, therefore, is likewise to uphold the people's right to information on matters of public concern. The use of property bears a social function and is subject to the state's duty to intervene for the common good. Broadcast media can find their just and highest reward in the fact that whatever altruistic service they may render in connection with the holding of elections is for that common good.

SWS v COMELEC357 SCRA 496, 2001

Facts

SWS is a research institution that conducts surveys while KPC publishes the Manila Standard, a newspaper of general circulation here in the Philippines. Both wanted to conduct an election survey during the 2001 national and local elections. However a resolution was issued by COMELEC stating that “Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election”. SWS and KPC argue that such resolution is a prior restraint on the exercise of freedom of speech. COMELEc on their part avers that such is a valid regulation in order not to manipulate the election results.

Issue

Whether Sec. 5.4 is a prior restraint on the exercise of freedom of speech.

Held

The petition is GRANTED. The court rules that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression.

The court has two points

First.  Sec. 5.4 fails to meet criterion [3] of the O’Brien test because the causal connection of expression to the asserted governmental interest makes such interest “not unrelated to the suppression of free expression.” By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers.  In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that “the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Thus, contrary

to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial.  It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days  immediately before a local election.

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v. COMELEC and Osmeña v. COMELEC. For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision, but it also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour.

Second.  Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O’Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest.  As already stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, “junking” of weak or “losing” candidates, and resort to the form of election cheating called “dagdag-bawas.”  Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils.

Penera v COMELECG.R. No. 181613, November 25, 2009

Facts

Penera and Andanar are mayoralty candidates for the May 2007 elections in Sta. Monica Surigao del Norte . Andanar filed a disqualification case against Penera and the other maembers of her political party for there were witnesses that allege that Penera engaged in premature campaigning. She was seen in a motorcade prior to the official campaign period in certain baranggays of Sta. Monica. She admitted that she was in the motorcade but she should not be disqualified because she and her party did not make any speech and that they only played a marching background music and waved to the crowd. So technically according to her, they did not ask the people to vote for them. COMELEC ruled in favor of the disqualification case. Hence, this petition

Issue

Whether Penera should be disqualified for rengaging in premature campaigning

Held

Petition DISMISSED.   The court said that a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity.  However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature

campaigning under Section 80 of the Omnibus Election Code.   Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning.  Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit.  Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy. 

Appreciation of Ballots

Bautista v Castro206 SCRA 305

FactsBautista and Castro were candidates for the position of Brgy.

Capt. In Teacher's Village Quezon City. The Barangay Board of Canvassers proclaimed Bautista as the winner by 2 votes.  Castro filed a protest. The trial court rendered a decision that Castro garnered the same number of votes as Bautista and declared Miguel as the duly elected Brgy. Capt. Petitioner Sergio Bautista filed the instant petition for review by certiorari

IssueWhether or not a ballot which does not contain the signature of the poll chairman be considered a valid ballot.

 Whether or not respondent Judge acted correctly in its appreciation of the contested ballots

Held

Dojillo v COMELEC G.R. No. 166542, July 25, 2006

Facts

Petitioner Dojillo and respondent Vidal were candidates for the 2002 barangay and SK elections running for the position of Punong Barangay of Barangay Nibaliw Vidal, San Fabian, Pangasinan. Vidal was able to obtaine 374 votes while Dojillo received 371 votes. Of course, the BET declared Vidal as the winner. Dojillo filed a

disqualification case against Vidal for misappreciation of ballots and incorrect tallying of votes. The trial court ruled in favor of Dojillo and proclaimed him as winner. However, the COMELEC in its resolutions reversed the decision. Hence this petition

Issue

Whether respondent is the duly elected Punong Barangay of Barangay Nibaliw Vidal, San Fabian, Pangasinan. A discussion on the issues of appreciation of ballots

Held

Petition is PARTIALLY GRANTED and Vidal is declared the winner. As to the appreciation of ballots the court was guided by the pieces of evidence presented by the lower court and COMELEC. A ballot indicates the voter's will. There is no requirement that the entries in the ballot be written nicely or that the name of the candidate be spelled accurately. In the reading and appreciation of ballots, every ballot is presumed valid unless there is a clear reason to justify its rejection. The object in the appreciation of ballots is to ascertain and carry into effect the intention of the voter, if it can be determined with reasonable certainty. The ballots in question had indications with reasonable certainty

Canvassing

Castromayor v COMELEC205 SCRA 298

Facts

Castromayor was a candidate for a seat in the eight-member Sangguniang Bayan of the municipality of Calinog, Iloilo in the elections held on May 8, 1995. After the elections were held the Board of Canvassers began tallying the votes. On the basis of the canvass the winners were declared. Among which was Castromayor. However Garin the chairman of the Board of Canvassers rechecked the tally and she found out that some votes were overlooked. According to her Dorito another candidate garnered 51 more votes than Castromayor. This led Garin to report such incident to the COMELEC so that the board can be given the authority to reconvene in order to re tally the votes. A fax letter was sent to the COMELEC in order for the latter to suspend the proclamation in favor of Castromayor. COMELEC resolved to act on the suspension of the proclamation. Upon hearing this Castromayor filed a petiotion for certiorari, prohibition, and mandamus for the remedy of the losing party must be an election protest.

Issue

Whether COMELEC holds the right to suspend the proclamation of Castromayor

Held

The Petition is DISMISSED. Indeed, since the Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation, any error in the statement ultimately affects the validity of the proclamation. It begs the question, therefore, to say that this is not a preproclamation controversy and the procedure for preproclamation controversies cannot be applied to the correction in the computation of the totals in the Statement of Votes.

According to the court what is involved here is a simple problem of arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by the candidates as reflected in the election returns. In making the correction in computation, the MBC will be acting in an administrative capacity, under the control and supervision of the COMELEC. Hence any question pertaining to the proceedings of the MBC may be raised directly to the COMELEC en banc in the exercise of its constitutional function to decide questions affecting elections. What has just been said also disposes of petitioner's other contention that because his proclamation has already been made, any remedy of the losing party is an election protest.

Mastura v COMELEC 285 SCRA 493

Facts

Mastura and Dilangalen were congressional candidates for the first district of Maguindanao for the May 1995 elections. When the votes were being canvassed Dilangalen objected to the inclusion of the ballots from the Municipality of Matonog, contending that the same were tampered. Hence, COMELEC ordered for the examination of these ballots and formed a new set of Board of Canvassers. They found out that the ballots were indeed tampered with. COMELEC ordered a recount while. Of course, Mastura was not in favor of the actions of COMELEC. From the recount Dilangalen was found to have garnered the highest votes.

Issue

Whether there was a grave abuse of discretion on the part of COMELEC

Held

It is settled jurisprudence that COMELEC can suspend the canvass of votes pending its inquiry whether there exists a discrepancy between the various copies of election returns from the disputed voting centers. Corollarily, once the election returns were found to be falsified or tampered with, the COMELEC can annul the illegal canvass and order the Board of Canvassers to reconvene and proclaim the winners on the basis of the genuine returns or, if it should refuse, replace the members of the board or proclaim the winners itself.

Cawasa v COMELECG.R. No. 150469, May 30, 2009

Facts

Cawasa and Manamparan were the candidates for the position of Mayor in  the  Municipality of Nunungan, Lanao del Norte. There were 40 precincts were the people were said to have cast their votes but only 36 were successfully held the elections. There was a failure of elections in the remaining 4.Hence, a special election was declared by the COMELEC. In the regular elections Cawasa had more votes but in the special election Manamparan took the lead. COMELEC proclaimed Cawasa the winner so Manamparan filed a petition to annul said proclamation. the venue of the special elections was transferred to the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military personnel were appointed as members of the Board of Election Inspectors in the 4 precincts. The Comelec held that “the special elections in the 4 contested precincts were not genuinely held and resulted in failure to elect on account of fraud.

IssueWhether the COMELEC en banc Resolution was issued without

jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction 

Held: Petition DISMISSED, Resolution AFFIRMED. Petitioners fail to

persuade.  Sections 152, 153 and 154 of the Omnibus Election Code shed light on this matter, to wit:

SEC. 152.  Polling Place. – A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes.

SEC. 153.  Designation of polling places. – The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing:  provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used.

SEC. 154.  Requirements for polling places. –Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors.  The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road.  No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing.

The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code.

The pre-conditions for declaring a failure of election are:  (1) that no voting has been held in any precinct or precincts because of force majeure, violence,  terrorism, fraud or other analogous causes and (2) that the votes not cast therein are sufficient to affect the results of the elections. The concurrence of these two circumstances justifies the calling of special elections. Here, the Comelec found that  the special elections were vitiated by fraud due to the illegal transfer of the polling places and the appointment of military personnel as members of the BEI.  Inevitably, the Comelec could not ascertain who voted during the special elections. The circumstances were such that the entire electoral process was not worthy of faith and credit, hence, in practical effect no election was held.

Garay v COMELEC261 SCRA 222, 1996

FactsGaray and Gata jr. were candidates running for the position of

vice-mayor in the Municipality of Matnog, Province of Sorsogon. The tallied votes revealed that Garay was ahead with 20 votes. However,this result did not include the votes in precinct 30-A of Barangay Culasi, Matnog. This is due to the fact that some men forcibly took the balot boxes. Hence,the Board of Canvassers did not declare a winner. BEI issued a certificate of votes wherein Gata jr. garnered an overwhelming lead in the said precint. This was sent by Gata to COMELEC. At first, Gata's tally board was not acknowledged but eventually COMELEC released a resolution certiying thevotes in said precinct by annuling the results of the special elections conducted. Aggrieved, Garay filed this petition.

IssueDid the respondent Commission commit grave abuse of

discretion amounting to lack of jurisdiction in setting aside the results of the special election it called due to a failure of elections and in declaring the winner on the basis of the Tally Board and the Certificate of Votes submitted by the private respondent Gata?

HeldPetition GRANTED, assailed resolution is SET ASIDE. While it is

true that the respondent Commission has the power to annul special elections or declare a failure of special elections where it is shown that no voting had taken place or the election therein resulted in a failure to elect; and the votes not cast would affect the results of the.election nonetheless, in the instant case, the June 17, 1995 electoral exercise was not a failed election, as voting had taken place and the election did not result in a failure to elect.  In other words, the people spoke freely and honestly in a contest voluntarily participated in by both parties herein.  Hence, thepopular will as clearly expressed in the votes cast and counted should prevail over dubious election documents of a previous failed election in the same precinct.  Since the validity and binding force of this special election has not been put at issue and since for all it is worth, such electoral exercise, both in the casting and canvassing of votes, was conducted regularly and peacefully, then this Court's duty is to resolve the issue "in a manner that would give effect to the will of the majority" as expressed in such special election, for it is merely sound public policy to cause elective offices to be filled by

Pre-proclamationControversy

Patoray v COMELEC249 SCRA 440

FactsPatoray and Disomimba are opponents for the mayoralty post in

the municipality of Tamparan, Lanao del Sur. From the tally of the votes, Patoray was ahead by 25 votes. DIsomimba objected to the inclusion of votes from 4 precincts saying it has been tampered with.

In a resolution, COMELEC excluded the  2 precincts resulting in a wipeout of Patoray's lead. Patoray was earlier declared as mayor but because of the turn of events an election protest was filed against him which was acted upon by the COMELEC. Petitioner filed a motion for reconsideration with the COMELEC en banc alleging that the procedurein R.A. 7166 on pre-proclamation cases apply only when there is a valid ground for a pre-proclamation controversy.  Petitioner claimed that since the objections raised by private respondent pertained to the casting and appreciation of ballots, the proper remedy was an election protest.  Hence, private respondents objection was correctly overruled by the MBC.

IssueWhether the COMELEC exercised grave abuse of discretion

HeldResolution annulling petitioner’s proclamation is reversed and

set aside, without prejudice to the final outcome and resolution of the election protest filed by private respondent before the RTC of Marawi City.

The court finds that the MBC did not err in refusing to consider the objections raised by private respondent during the canvass of the returns.  Section 20 of R.A. 7166 applies only where the objection on the return being canvassed refers to issues proper in a pre-proclamation controversy.  Under the Omnibus Election Code, pre-proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not he board of election inspectors), or (2) challenges related toelection returns to which a party must have made specific objections.

In the case at bar, private respondent objected to the two returns on the ground “that the election returns are manufactured, fabricated or not authentic, considering that the election returns includes votes on ballots which are spurious, marked and invalid ballots.” The objection, as worded, did not challenge the returns, but was directed primarily at the ballots reflected in the returns.  The issue of whether or not the ballots were manufactured, fabricated or not authentic involves an appreciation thereof.  It is settled that issues relative to the appreciation of ballots cannot be raised in a pre-proclamation controversy. Appreciation of ballots is the task of the board of election inspectors, not the board of canvassers, and questions related thereto are proper only in election protests.

Sema v COMELEC 347 SCRA 633, 2000

FactsSema and Manara were candidates for city mayor of Cotabato

City during the May 11, 1998Sema together with several others filed for the exclusion of votes from 30 precincts. This was granted by COMELEC and Sema was declared winner. Aggrieved Manara appealed. A resolution was issued by the COMELEC suspending the proclamation of Sema as winner as well as a cease and desist order in assuming the position of Mayor.

Issuewhether or not the order of the CBC  of Cotabato City dated

May 29, 1998 granting Sema’s 28 petitions for exclusion of the 30 contested election returns is null and void for having been issued after its earlier ruling  embodied in its orders of May 22 and 23, 1998 directing the exclusion of the same returns had already become final.

HeldThe COMELEC is ORDERED to direct the City Board of

Canvassers of Cotabato City to reconvene within ten (10) days from receipt of this decision for the purpose of completing the canvass of votes and proclaiming the winner.  The petition for certiorari in G.R. Nos. 134163-64 is deemed CLOSED and TERMINATED.  The status quo order dated July 14, 1998 is hereby ordered LIFTED.

The court rules that Mañara has every right to expect a ruling from the Board on its objection over the latter’s proceedings.  Up to this time, however, the Board has not complied with its statutory responsibility to come up with a ruling thereon.  The failure of the Board to discharge this obligation should not in any way prejudice Mañara’s right to elevate the matter to this Commission on appeal. Otherwise, all that a partial board can do to favor a party is to refuse to make a ruling on the latter’s opponent’s objections effectively preventing its review by this Commission.  (Abella vs. Larrazabal 180 SCRA 509).  It is in this light that the instant appeal must be considered seasonably filed.  This Commission must assume jurisdiction, entertain the allegations raised and resolve the issues involved in SPC No. 98-240.

It is clear that the CBC acted without authority when it issued its May 29, 1998 ruling.  Consequently, the COMELEC acted without or in excess of its jurisdiction and with grave abuse of discretion when it rendered the questioned resolution of October 18, 1999 denying due course to SPC No. 98-240 for allegedly having been filed out of time and affirming the proclamation of Sema as Mayor of Cotabato City; and the resolution of January 2, 2000 denying Mañara’s motion for

reconsideration of the October 18, 1999 resolution.

Accordingly, the proclamation of Sema is null and void as it was based on an incomplete canvass.  An incomplete canvass is illegal and cannot be the basis of a valid proclamation. A proclamation made where the contested returns set aside will affect the result of the election and the board of canvassers proceeded to proclaim without the authority from the COMELEC is null and void

Francis Pangilinan v COMELEC G.R. No. 105278, November 18, 1993

FactsPangilinan and Belmonte were both running for the position of

Congressman in the 4th district of Quezon City. Cadano and Umali as registered voters of the 4th district and as taxpayers filed a disqualification case against Belmonte because the latter was seen to have been inducing the voters of some of the barangays in the 4th

district. He was seen boasting about the things that he gave the people for free. Pangilinan together with the two complainants filed an urgent motion to suspend canvass or proclamation.  in order that the petition for disqualification against private respondent may not become moot and academic, there was need for an immediate order directing the City Board of Canvassers of Quezon City to suspend at once the canvassing of the election returns and the proclamation of the winning candidate for Representative of the fourth district of Quezon City. The COMELEC, however, failed to act on the said motion. Pangilinan further objected to the continuation of the COMELEC. COMELEC contends that under Section 15 of R.A. No. 7166 and Section 23 of COMELEC Resolution No. 2413, entitled "General Instructions for the Provincial/City/District and Municipal Board of Canvassers" pre-proclamation controversies are not allowed in the election of members of the House of Representatives.

Issue  Section 15 of R.A. No. 7166 and Section 23 of COMELEC Resolution No. 2413 disallowing pre-proclamation controversies in the election of members of the House of Representatives are unconstitutional.

HeldPetition DISMISSED

The court ruled that Sec. 15 of R.A. 7166 is not, therefore, unconstitutional. On the contrary, it is in harmony with the 1987 Constitution. As aptly observed by the Solicitor General in hisThe petitioner's arguments are totally misplaced. In fact, Section 15,

R.A. 7166 is consistent with Section 17, Article VI which makes the Electoral Tribunal of the Senate and the House of Representatives the sole judge of all contests relating to the election, returns, and qualifications of their respective members. Petitioner's objection relating to the preparation, transmission and appreciation of the election returns or certificates of canvass falls within the sole jurisdiction of the (House) Electoral