Download - Agra+Preweek+2012

Election Law Review – Justice AGRA (2012 Preweek Lecture)

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Flow 1. Commission on Elections 2. Voters and Voter Registration 3. Elective Officials and Candidates 4. Campaign 5. Contributions and Expenditures 6. Elections: postponement and Failure 7. Automated System 8. Pre-Proclamation Cases 9. Post-Proclamation 10. Election Offenses

1. COMMISSION ON ELECTIONS

Enforcement: All election laws (persons and policies)

Judicial Power: Qualifications, Election Contests, Not suffrage

Jurisdiction: Original - Regional, Provincial and City;

Appellate - Municipal, Barangay and Sangguniang Kabataan

Recourse: En Banc (MR, administrative) and Division (1st instance, judicial)

Process: Division - MR to En Banc - Certiorari to SC

Judicial: Disqualification, Election Protest, Quo Warranto, “Pre-Proclamation,” Annulment of Proclamation

Administrative: Failure of Elections, Postponement of Elections, Election Offense, Annulment of Book of Voters

Contempt: Judicial (not Administrative)

2. VOTERS AND VOTERS QUALIFICATIONS

Concepts

Suffrage is a Right, Not an Obligation

Qualifications defined in Constitution

Procedural Requirements allowed, Substantive not allowed

Disqualifications defined in Statute

Must allow: Absentee Voting, Dual Citizens, Disabled and Illiterates to Vote

Qualifications

Filipino Citizen

At least 18 years of age on election day

Resident in Philippines for at least 1 year prior to election day

Resided in place wherein propose to vote for at least 6 months prior to election day

Free from Disqualifications

In order to vote, must be a registered voter Disqualifications

Sentenced by final judgment –imprisonment of 1 year or more

Sentenced to suffer accessory penalty – political rights

Adjudged by final judgment – crime involving disloyalty

Court-declared insane and incompetent persons

Deactivation

When Disqualified to Vote

Failed to Vote in 2 preceding elections

When Registration Excluded by the Court

When Lose Filipino Citizenship Opposition

What? Applications not yet acted upon

Where Oppose? Election Registration Board

Who may Oppose? Voter, Candidate or Political Party

When? Specified Period

How Oppose? File Written Opposition/ Challenge

Why Oppose? Not Qualified, Fictitious

Appearance? Mandatory if application opposed

Inclusion/Exclusion

What? Applications already acted upon

Where File? MTC (not Comelec), then RTC, then SC (question of law)

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

When? Specified Period

File Petition (refer to 1 precinct; ERB members as Respondents)

Service of Notice (4 modes)


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Any Voter, Candidate or Political Party may Intervene

Summary Proceedings (not conference inside Chambers)

Presentation of Evidence (No Stipulation of Facts; If voter not appear and fictitious voter is ground)

Decision within 10 days (Exclusion) or 15 days (Inclusion) from Filing

Appeal with RTC (5 days) Annulment of Book of voters

Annul What? Book of Voters per precinct

Where File? COMELEC

When Filed? Normally, after period to file inclusion/exclusion lapses

Who Files? Any Voter, EO or Party

What Grounds? Book Prepared Improperly, Preparation Attended with Vice or Fraud, Book contains Statistically Improbable Data (not qualification of voters)

Election Day Illegal Voter - Not registered; Use another name; Disqualified; Multiple Registrant (allowed to vote if properly identified) Illegal Act - Vote-Buying; Vote-Selling; Vote-Betting: Promise to induce or withhold vote (allowed to vote if take oath)

3. ELECTIVE OFFICIALS AND CANDIDATES

Elective National Office

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

Local Office

LCE: Governor, Mayor and Punong Barangay; VLCE: Vice-Governor and Vice-Mayor; Sanggunian Members; Sangguniang Kabataan

Party-List

Multi-Partism/ Party Loyalty/ Social Justice

Exclusive to Marginalized/ Nominees Organic

Only in House (20% of Total)

2% Threshold (and until filled up)

3-Seat Maximum Candidate

Definition: Seeks public office and files certificate of candidacy and campaign period has started

Effect of Non-Filing: Not a candidate (not liable for unlawful acts and omissions before becoming a candidate)

Effect of Filing: On Tenure of Incumbents (elective – remain in office; appointive – ipso facto resigned)

Substitution

2 Grounds – Death, Withdrawal and Disqualification (not allowed if violate term limit; CoC denied due course or cancelled – nuisance and material misrepresentation)

Both Substituted and Substitute must be Qualified

When? Up to mid-day of election day

Substitute? Qualified and Same Party

Substituted can no longer run for any other position/ Withdrawal not affect liabilities

Qualifications Set by the Constitution (for national) and statutes (for local)

Citizenship

Age

Residency

Registered Voter

Literacy

Free from Disqualifications

Undergo Drug Test under CDDA of 2002 (unconstitutional)

Disqualifications

Lack qualifications/ possess some disqualifications

Violate Term Rule (1-2-3 terms)

Commission of an election offense

Nuisance Candidate


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Sentenced by Final Judgment – accessory penalty

Willfully Commits Material Misrepresentation

No valid, timely and properly filed certificate of Candidacy

Lack of Qualifications

Where File: Comelec Division

When File: Before Proclamation

If Not File: Quo Warranto Commission of Election Offense

What Offenses? Vote-Buying, Terrorism, Unlawful Expenditures, Unlawful Campaign, Coercion of Subordinates, Threats, Prohibition against Release of Public Funds (other election offenses – file EO case – RTC hears)

Where File? Comelec Division

When File? Before Proclamation

If Not File? Election Protest and/ or Election Offense

Nuisance Candidate

Who Is? Campaign Capability, Intention, Performance, Exposure, Platform, Party Affiliation, Organization, Profession, Income, Health, Education, Name


When File? Within 5 days from Last Day Filing of Certificate of Candidacy

If Not File: No remedy Misrepresentation

Misrepresentation must be Material (pertains to Qualifications and Disqualifications) and Willful/ Deliberate; Even if there is ‘Misrepresentation’ if actually Qualified – Not Disqualified


When File? 25 days from Filing of CoC

If Not File: No remedy

4. CAMPAIGN:

Concept

Definition: Act designed to promote the election or defeat of a candidate

Determining Factor: Intent/ Design (not all acts of beneficence are considered campaigning) and Period (start of campaign)

Application: All Candidates for All Elective Offices

Current Framework: Regulated but Liberalized

Allowable Forms

Forming Organizations

Holding Rallies

Making Speeches

Distributing Campaign Materials

Soliciting Votes

Publishing Advertisements Propaganda

Paid Political Advertisements

Free Space and Airtime

Use of Gadgets and Billboards

Private Poster Areas

Posting in Private Places

Election Surveys and Exit Polls Written Forms

Printed Materials (8.5”Wx14”L)

Letters

Posters (2’x3’), Poster Areas (12’x16’)

Rally Streamers (3’x8’) Paid Ads

Print: 1/4th page in broadsheet, ½ in tabloid 3x a week

Television: 120 minutes (for national) and 60 minutes (for local)

Radio: 180 minutes (for national) and 90 minutes (for local)

Unlawful Forms/ Acts

Foreign Intervention

Removal or Destruction of Lawful Propaganda

Materials not Disclose Payor

Exceed Limits


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Transportation, Foods and Drinks During Rallies

Movie or Video on or by Candidate

5. CONTRIBUTIONS AND EXPENDITURES

Prohibited Contributions

Financing Institutions

Public Utility Operator

Natural Resources Explorer

Government Contractors

Franchise Holders

Donee Institution from Government

Educational Institutions

Foreigners/ Foreign Corporations Other Prohibited Acts

Not reveal true name of contributor

Not report all contributions

Exceed Limits (P10, P5, P3)

Not file Statement

Expenditures made by non-authorized persons

Lawful Expenditures

Use of Facilities

Travel

Compensation

Communications

Written Materials

Professional Pollwatchers

Office/ HQ

Advertisements

Meetings/ Rallies

Counsel*

Copying of List of Voters*

Sample Ballots*

Volunteers* (*Not Covered in Cap)

6. ELECTIONS

Postponement

Grounds: Force majeure, Violence, Terrorism, Loss or Destruction of Election Paraphernalia, and Analogous Causes

Extent: Serious and Impossible to have free and orderly elections

Conditions: Grounds must exist before voting

Authority: Comelec en banc (petition or motu propio); not BEI or election officers

Failure

Grounds: Force majeure, Violence, Terrorism, Fraud, and Analogous Causes

Extent: Failure to elect and affect results of elections

Failure - transfer of venue of counting without notice; No Failure – voting resumes after sporadic violence, landslide results, not affect outcome

Conditions: Election not held or suspended, After voting, During preparations or transmission of election returns, Canvassing

Authority: Comelec en banc (petition)

7. AUTOMATED ELECTIONS

Statutory Bases: RA 9369 amending RA 8436

Automated Election System: voting, counting, consolidating, canvassing, and transmission

Paper-Based or Direct Recording Election System: Ballots, Election Returns, Certificate of Canvass, Statement of Votes

Comelec Discretion: AES or AESs, Paper-Based or Direct Recording

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

Voting Procedure before Board of Elections Inspectors: 1. Voter gets ballots from BEI 2. Voter fills up ballot in voting booth (spoil only 1x) 3. Voter affixes thumbmark on voting record 4. BEI applies indelible ink 5. Voter drops ballot in ballot box

Counting at Counting Center as ballots arrive (physical transport)

Precinct-Level Result: Printing of Elections Returns (30 copies) then Electronic Transmission to Board of Canvassers; Results loaded in Data Storage Devices


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

8. PRE-PROCLAMATION CASES

During Canvassing:

Allowed: Objections pertaining to Proceedings and Composition of BoC; Pollwatchers-related; Data-Storage Delayed, Destroyed, Falsified

No Material Defects, Manifest Errors under AES

Not Allowed: Rules of Appreciation; Violence, Voting Procedure, Eligibility of Voters

9. POST-PROCLAMATION:

Election Protest

Grounds: Fraud and Irregularities in Casting, Counting and Canvassing

Documents in Question: Ballots, ERs, CoCs and Data-Storage Devices

Venue: P/VP; Senators; Representatives; Regional; Province; City; Municipality; Barangay

Requirements: Filed by candidate; Within period; Protestee proclaimed; Payment of filing fee; Allegations of fraud; Identify precincts; Verified; Certificate of nonforum shopping

Procedure: Revision; Trial

If prosper: protestee removed, true winner proclaimed

Quo Warranto

Grounds: Disloyalty to Republic; Ineligibility

Venue: Same as Election Protest

If prosper: Respondent ousted; special elections or Succession

Annulment OF PROC.

Grounds: Proclamation based on irregular and illegal canvass

Venue: Comelec division

Effect: Proclamation annulled

10. ELECTION OFFENSES

Grounds: Violation of Election Code, Commission of Enumerated Prohibited Acts

Investigation: Law Department or Prosecutors

Filing of Information: Comelec en banc

Venue: Regional Trial Court

Effect: Disqualification, Fine/ Imprisonment