Sunday, October 23, 2011

ELECTION LAW PROBLEMS AND ANSWERS

1. Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner’s 9,792 votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court found private respondent liable not only for Malaluan’s protest expenses but also for moral and exemplary damages and attorney’s fees. The Omnibus Election Code provides that “actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law.” COMELEC Rules of Procedure provide that “in all election contests the Court may adjudicate damages and attorney’s fees as it may deem just and as established by the evidence if the aggrieved party has included such claims in his pleadings.”
QUESTION: Is the award for damages proper? Explain your answer.

ANSWER:No. To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and compensatory damages in accordance with law. The victorious party in an election case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by private respondent due to the execution ofjudgment pending appeal, that damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law provides no remedy.(LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents. [G.R. No. 120193. March 6, 1996])

2. Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995 elections.In the same elections, private respondent was proclaimed Vice-Mayor of the same municipality.On May 19, 1995, petitioner’s rival candidate, the late Nicolas M. Jamilla, filed an election protest before the Regional Trial Court of Pinamalayan, Oriental Mindoro.During the pendency of said contest, Jamilla died. Four days after such death or on December 19, 1995, the trial court dismissed the election protest ruling as it did that “[a]s this case is personal, the death of the protestant extinguishes the case itself. The issue or issues brought out in this protest have become moot and academic.”QUESTION: (A) Is said contest a personal action extinguished upon the death of the real party in interest? (B) If not, what is the mandatory period within which to effectuate the substitution of parties?
ANSWER: (A)NOT PROPER. JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON ELECTIONS and AMANDO A. MEDRANO, respondents. [G.R. No. 125249. February 7, 1997] An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. As we have held in the case of Vda. de De Mesa v. Mencias:
“x x x. It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him of the character of an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206).(B) WITHIN 30 DAYS.” To finally dispose of this case, we rule that the filing by private respondent of his Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995 when Jamilla’s counsel informed the trial court of Jamilla’s death, was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to election cases, may however be applied by analogy or in a suppletory character, private respondent was correct to rely thereon.”


3. Luisa Cargada ran for president and lost in favor of Jose Decanto. She filed an election protest and while the revision of the ballots was still pending, she ran for a senatorial position in the coming elections. She won and was proclaimed as a senator. President Jose Decanto then filed a motion to dismiss the election protest on the ground that it has become moot and academic. QUESTION: Is his contention correct? Will the election protest be dismissed? ON what grounds?

ANSWER: On the technical ground of abandonment, the election protest must be dismissed. In assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the language of Moraleja, abandoned her “determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate.” Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all-to crucial political stability of the nation during this period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public interest implications thereof, on the following grounds: (1) The petition is insufficient in form and substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P 100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible. Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In sum, if an election be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. MIRIAM DEFENSOR-SANTIAGO, protestant, vs. FIDEL VALDEZ RAMOS, protestee. [P.E.T. Case No. 001. February 13, 1996]

4. . For a natural born Filipino, who reacquired his Philippine citizenship under RA 9225, in order for him to run for public office, what requirements must be complied by him?

ANSWER:For a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath. (Japson v. COMELEC G.R. No. 180088, Jan 19, 2009)

5. In Papandayan, Jr. v. Commission on Elections, the Supreme Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. State these principles.

ANSWER: In Papandayan, Jr. v. Commission on Elections, the Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an “intention to return” to the place where he seeks to be elected. Corollary to this is a determination whether there has been an “abandonment” of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondent’s immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under §68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or “intent to return,” stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a person’s legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that “domicile” and “residence” are synonymous. The term “residence,” as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. “Domicile” denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980’s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA People’s Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.


6. Facts: Ciceron P. Altarejos was a candidate for mayor in the Municipality of San Jacinto, Masbate in the 10 May 2004 national and local elections. On 15 January 2004, Jose Almiñe Altiche and Vernon Versoza, registered voters of San Jacinto, Masbate, filed with the COMELEC, a petition to disqualify and to deny due course or cancel the certificate of candidacy of Altajeros on the ground that he is not a Filipino citizen and that he made a false representation in his certificate of candidacy that “[he] was not a permanent resident of or immigrant to a foreign country.” Almiñe, et. al. alleged that based on a letter from the Bureau of Immigration dated 25 June 2001, Altajeros was a holder of a permanent U.S. resident visa, an Alien Certificate of Registration E139507 issued on 3 November 1997, and an Immigration Certificate of Residence 320846 issued on 3 November 1997 by the Bureau of Immigration. On 26 January 2004, Altajeros filed an Answer stating, among others, that he did not commit false representation in his application for candidacy as mayor because as early as 17 December 1997, he was already issued a Certificate of Repatriation by the Special Committee on Naturalization, after he filed a petition for repatriation pursuant to Republic Act 8171. Thus, Altajeros claimed that his Filipino citizenship was already restored, and he was qualified to run as mayor in the 10 May 2004 elections. Altajeros sought the dismissal of the petition. Atty. Zacarias C. Zaragoza, Jr., regional election director for Region V and hearing officer of the case, recommended that Altarejos be disqualified from being a candidate for the position of mayor of San Jacinto, Masbate in the 10 May 2004 national and local elections; on the ground that Altajeros failed to prove that he has fully complied with requirements of Section 2 of Republic Act 8171 to perfect his repatriation and reacquire his Filipino citizenship inasmuch as he has not submitted any document to prove that he has taken his oath of allegiance to the Republic of the Philippines and that he has registered his fact of repatriation in the proper civil registry and in the Bureau of Immigration. In its Resolution promulgated on 22 March 2004, the COMELEC, First Division, adopted the findings and recommendation of Director Zaragoza. On 25 March 2004, Altajeros filed a motion for reconsideration. On 7 May 2004, the COMELEC en banc promulgated a resolution denying the motion for reconsideration for utter lack of merit. On 10 May 2004, the election day itself, Altajeros filed the petition for certiorari with the Supreme Court.
Issue: Whether Altajeros is eligible to run as mayor of San Jacinto, Masbate, in light of his repatriation under RA 8171.

Held: Section 2 of Republic Act 8171 provides that "Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen." The law is clear that repatriation is effected “by taking the oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration.” Hence, in addition to taking the Oath of Allegiance to the Republic of the Philippines, the registration of the Certificate of Repatriation in the proper civil registry and the Bureau of Immigration is a prerequisite in effecting the repatriation of a citizen. Herein, Altajeros took his Oath of Allegiance on 17 December 1997, but his Certificate of Repatriation was registered with the Civil Registry of Makati City only after 6 years or on 18 February 2004, and with the Bureau of Immigration on 1 March 2004. Altajeros, therefore, completed all the requirements of repatriation only after he filed his certificate of candidacy for a mayoralty position, but before the elections. Republic Act 8171 has impliedly repealed Presidential Decree 725. They cover the same subject matter: Providing for the repatriation of Filipino women who have lost their Philippine citizenship by marriage to aliens and of natural-born Filipinos. The Court’s ruling in Frivaldo v. Commission on Elections that repatriation retroacts to the date of filing of one’s application for repatriation subsists. Accordingly, Altajeros’s repatriation retroacted to the date he filed his application in 1997. He was, therefore, qualified to run for a mayoralty position in the government in the 10 May 2004 elections. Apparently, the COMELEC was cognizant of this fact since it did not implement the assailed Resolutions disqualifying Altajeros to run as mayor of San Jacinto, Masbate. However, considering that Altajeros failed to prove before the COMELEC that he had complied with the requirements of repatriation,as he submitted the necessary documents proving compliance with the requirements of repatriation only during his motion for reconsideration, when the COMELEC en banc could no longer consider said evidence. It is, therefore, incumbent upon candidates for an elective office, who are repatriated citizens, to be ready with sufficient evidence of their repatriation in case their Filipino citizenship is questioned to prevent a repetition of the present case. (Altajeros vs. Commission on Elections[GR 163256, 10 November 2004]En Banc, Azcuna (J))

7. Facts: On 31 December 2003, Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (FPJ), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the 2004 national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, (GR 161824) initiated, on 9 January 2004, a petition (SPA 04-003) before the Commission on Elections (COMELEC) to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, Fornier asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Fornier based the allegation of the illegitimate birth of FPJ on two assertions: (1) Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, (2) even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of FPJ. On 23 January 2004, the COMELEC dismissed SPA 04-003 for lack of merit. 3 days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 6 February 2004 by the COMELEC en banc. On 10 February 2004, Fornier assailed the decision of the COMELEC before the Supreme Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with GR 161824, would include GR 161434 and GR 161634, both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.
Issue: Whether FPJ was a natural born citizen, so as to be allowed to run for the office of the President of the Philippines.
Held: Section 2, Article VII, of the 1987 Constitution expresses that "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." Herein, the date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a “natural-born” citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of FPJ and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that (1) The parents of FPJ were Allan F. Poe and Bessie Kelley; (2) FPJ was born to them on 20 August 1939; (3) Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; (4) The father of Allan F. Poe was Lorenzo Poe; and (5) At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old. The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. But while the totality of the evidence may not establish conclusively that FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Fornier has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, must not only be material, but also deliberate and willful. The petitions were dismissed.( Tecson vs. Commission onElections[GR 151434, 3 March 2004]; also Velez vs. Poe [GR 161823] and Fornier vs.Commission on Elections [GR 151824]En Banc

8.The Board of Canvasser by reason of their negligence proclaimed the wrong candidate despite the oral protest made during the proclamation. They were charged for an election offense and after trial on the merits, the trial court rendered a decision, the dispositive portion of which reads:
"WHEREFORE, in view of all the foregoing considerations:In Criminal Case No. 1886, the Court finds the accused Florezil Agujetas, Salvador Bijis and Benjamin Miano GUILTY beyond reasonable doubt as principals for violation of Section 231, second paragraph, of Batas Pambansa Blg. 881, as amended, otherwise known as the "Omnibus Election Code of the Philippines", and hereby sentences each of them to ONE (1) YEAR IMPRISONMENT which shall not be subject to probation. In addition, they are sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. Said accused are ordered to pay, jointly and severally, Erlinda Irigo the amounts of P50,000.00 as actual damages, P15,000.00 as and for attorney's fees, and P100,000.00 as moral damages, plus the costs of the proceedings.
"Let copies hereof be furnished the Honorable Chairman, Commission on Elections, and the Honorable Secretaries of Justice and Education, Culture and Sports.
QUESTION: Is the judgment correct with respect to the criminal and civil liability of the Board of Canvassers? Explain your answer and if possible cite a case to support your answer.

ANSWER: PROPER. "Sec. 231. - Canvass by the board. - The board of canvassers shall meet not later than six o'clock in the afternoon of election day at the place designated by the Commission to receive the election returns and to immediately canvass those that may have already been received. It shall meet continuously from day to day until the canvass is completed, and may adjourn but only for the purpose of awaiting the other election returns from other polling places within its jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far for each candidate for each office, furnishing the Commission in Manila by the fastest means of communication a certified copy thereof, and making available the data contained therein to the mass media and other interested parties. As soon as the other election returns are delivered, the board shall immediately resume canvassing until all the returns have been canvassed.
"The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes and received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city municipality or barangay. Failure to comply with this requirement shall constitute an election offense. FLOREZIL AGUJETAS and SALVADOR BIJIS, petitioners, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 106560. August 23, 1996]

9. RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a majority of some 24,000 votes 1 Lajara was proclaimed winner by the Municipal Board of Canvassers. On 15 May 1995 Canicosa filed with the Commission on Elections (COMELEC) a Petition to Declare Failure of Election and to Declare Null and Void the Canvass and Proclamation because of alleged widespread frauds and anomalies in casting and counting of votes, preparation of election returns, violence, threats, intimidation, vote buying, unregistered voters voting, and delay in the delivery of election documents and paraphernalia from the precincts to the Office of the Municipal Treasurer. Canicosa particularly averred that: (a) the names of the registered voters did not appear in the list of voters in their precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) control data of the election returns was not filed up in some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns
QUESTION: 1.Based on said grounds, will there be a “failure of election”? How will you resolve the issues from (a) to (e)?
ANSWER: There is no failure of election. Clearly, there are only three (3) instances where a failure of election may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure. violence, terrorism, fraud, or other analogous causes.
None of the grounds invoked by Canicosa falls under any of those enumerated. Canicosa bewails that the names of the registered voters in the various precincts did not appear in their respective lists of voters. But this is not a ground to declare a failure of election. The filing of a petition for declaration of failure of election therefore is not the proper remedy. The day following the last day for registration of voters, the poll clerk delivers a certified list of voters to the election registrar, election supervisor and the COMELEC, copies of which are open to public inspection. On the same day, the poll clerk ports a copy of the list of registered voters in each polling place. Each member of the board of election inspectors retains a copy of the list which may be inspected by the public in their residence or in their office during office hours. 2
Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters was posted in each precinct pursuant to Sec. 148 of R.A. No. 7166. Based on the lists thus posted Canicosa could have filed a petition for inclusion of registered voters with the regular courts. The question of inclusion or exclusion from the list of voters involves the right to vote 3 which is not within the power and authority of COMELEC to rule upon. The determination of whether one has the right to vote is a justiciable issue properly cognizable by our regular courts. Section 138, Art. XII, of the Omnibus Election Code states;
Sec. 138. Jurisdiction in inclusion and exclusion cases. � The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Decisions of the municipal or metropolitan trial courts may be appealed directly by the aggrieved party to the proper regional trial court within five days from receipts of notice thereof, otherwise said decision of the municipal or metropolitan trial court shall decide the appeal within ten days from the time the appeal was received and its decision shall be immediately final and executory. No motion for reconsideration shall be entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a verified complaint seeking the annulment of the book of voters pursuant to Sec. 10, of R.A. No. 7166:
Sec. 10. Annulment of the List of Voters. � Any book of voters the preparation of which has been affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar irregularity or which is statistically improbable may be annulled after due notice and hearing by the Commission motu propio or after the filing of a verified complaint: Provided, that no order, ruling or decision annulling a book of voters shall be executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the 557 precincts as alleged by Canicosa, 4 then it was more expedient on his part to avail of the remedies provided by law in order to maintain the integrity of the election. Since Canicosa failed to resort to any of the above options, the permanent list of voters as finally corrected before the election remains conclusive on the question as to who had the right to vote in that election, although not in subsequent elections. 5
Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were not able to vote, instead, strangers voted in their behalf. Again, this is not a ground which warrants a declaration of failure of election. Canicosa was allowed to appoint a watcher in every precinct. The watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenges of illegal voters. � (a) Any voter, or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or identity of the voter . . .
Sec. 202. Record of challenges and oaths. � The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made . . .
The claim of Canicosa that he was credited with less votes than he actually received and that the control date of the election returns was not filled up should have been raised in the first instance before the board of election inspectors or board of canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for the rights and duties of watchers �
Sec. 179. Rights and duties of watchers. � . . . The watchers . . . shall have the right to witness and inform themselves of the proceedings of the board of election inspectors . . . to file a protest against any irregularity or violation of law which they believe may have been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors
a certificates as to the filing of such protest and/or of the resolution thereon . . . and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors . . .
To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of the Omnibus Election Code states �
Sec. 212. Election returns. � . . . Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code
that �
Sec. 215. Board of election inspectors to issue a certificate of the number of votes polled by the candidates for an office to the watchers. � After the announcement of the results of the election and before leaving the polling place, it shall be the duty of the board of election inspectors to issue a certificate of the number of votes received by a candidate upon request of the watchers. All members of the board of election inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require �
Sec. 16. Certificate of votes. � After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers . . .
Sec. 17. Certificate of Votes as Evidence. � The provisions of Secs. 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or anomaly committed in the election returns concerned . . .
From the foregoing provisions, it is clear that in case of inconsistency as to the number of votes written in the election returns and the certificate of votes, a petition for correction of election returns must immediately be filed with COMELEC by all or a majority of the members of the board of election inspectors or any candidate affected by the error or mistake. In order to make out a case for correction of election returns, there must be an error and at least a majority of the members of the board of election inspectors agrees that such error existed. Canicosa never mentioned that he petitioned for the correction of the election returns before the COMELEC.
Canicosa complains that the election returns were delivered late and the ballot boxes brought to the Office of the Municipal Treasurer unsecured, i.e., without padlocks nor self-locking metal seals. These bare allegations cannot impel us to declare failure of election. Assuming that the election returns were delivered late, we still cannot see why we should declare a failure to elect. The late deliveries did not convert the election held in Calamba into a mockery or farce to make us conclude that there was indeed a failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under any of the instances enumerated in Sec. 6 of the Omnibus Election Code. In Mitmug v. Commission on Elections 6 we ruled that before COMELEC can act on a verified petition seeking to declare a failure of election, at least two (2) conditions must concur: (a) no voting has taken place in the precincts on the date fixed by law, or even if there was voting, the election nevertheless resulted in failure to elect; and, (b) the votes that were not cast would affect the result of the election. From the face of the instant petition, it is readily apparent than an election took place and that it did not result in a failure to elect. 7
Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his petition. He maintains that his petition should have first been heard by a division of COMELEC and later by the COMELEC en banc upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution. 8
But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative functions. To reiterate, the grounds cited by Canicosa in his petition are that: (a) the names of the registered voters did not appear in the list of voters in their respective precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) the control data of the election returns was not filled up in some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative powers to the COMELEC with regard to the enforcement and administration of all laws and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. � In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administrative of all laws relative to the conduct of elections of the purposes of ensuring free, orderly and honest elections . . .
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by Division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional. In the instant case, as aforestated, the issues presented demand only the exercise by the COMELEC of its administrative functions.
The COMELEC exercises direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. Its power of direct supervision and control includes the power to review, modify or set aside any act of such national and local officials. 9 It exercises immediate supervision and control over the members of the boards of election inspectors and canvassers. Its statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be required pursuant to law. 10
Specifically, Canicosa alleged that he was credited with less votes than the actually received. But he did not raise any objection before the Municipal Board of Canvassers; instead, he went directly to the COMELEC. He now claims, after the COMELEC en banc dismissed his petition, that it was error on the part of COMELEC to rule on his petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on Elections 11 thus �
It should be pinpointed out, in this connection, that 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.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any party dissatisfied with the ruling of the board of canvassers shall have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. � (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying or election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed . . . (h) The appeal shall be heard and decided by the Commission en banc.
The Tatlonghari v. Commission on Elections 12 it was made to appear in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates that respondent therein received 4,951 votes or more than what he actually obtained. In resolving the case we ruled that the correction of the manifest mistake in mathematical addition calls for a mere clerical task of the board of canvassers. The remedy invoked was purely administrative. In Feliciano vs. Lugay 13 we categorized the issue concerning registration of voters, which Canicosa cited as a ground in his petition for declaration of failure of election, as an administrative question. Likewise, questions as to whether elections have been held or whether certain returns were falsified or manufactured and therefore should be excluded from the canvass do not involve the right to vote. Such questions are properly within the administrative jurisdiction of COMELEC, 14 hence, may be acted upon directly by the COMELEC en banc without having to pass through any of its divisions.( G.R. No. 120318 December 5, 1997RICARDO "BOY" CANICOSA, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CALAMBA, LAGUNA and SEVERINO LAJARA, respondents.

10. Petitioner and private respondent were the candidates for vice-mayor of the City of Parañaque in the May 11, 1998 election. On May 19, 1998, the city board of canvassers proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for having garnered a total of Seventy One Thousand Nine Hundred Seventy Seven (71,977) votes of the total votes cast for the vice-mayoralty position. On the other hand, petitioner, Tomas T. Banaga, Jr., received the second highest number of votes for the said position, with Sixty Eight Thousand Nine Hundred Seventy (68,970) of the total votes cast. Thus, the difference between the votes received by the private respondent and the petitioner is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action denominated as “Petition to Declare Failure of Elections and/or For Annulment of Elections”, alleging that:
“3. xxx the local elections for the office of Vice-Mayor in the City of Parañaque, Metro Manila, held on 11 May 1998, amounts to a denigration of the expression of the true will of the people, as it was tainted with widespread election anomalies which constitutes election fraud. The local elections for the position of Vice-Mayor in the City of Parañaque, Metro Manila, was replete with election offenses, specifically vote buying and flying voters being allowed to vote. Moreover, during the canvassing of votes before the Board of Canvasser, numerous Election Returns were discovered to contain glaring discrepancies and are replete with blatant omissions, not to mention the fact that numerous election returns appeared to be tampered with. All told, it is readily apparent that the portion of the Election Returns pertaining to the position of Vice-Mayor in the City of Parañaque, appear to be altered, falsified or fabricated.
QUESTIONS: (A) Is the petition tenable?
(B) What are the three instances where a failure of election may be declared?
© What are the two conditions which must concur before the COMELEC can act on a verified petition seeking to declare a failure of election?


ANSWERS: (A) Not tenable.
(b) There are three instances where a failure of election may be declared, namely, (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a resulting failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, where the preparation and the transmission of the election returns give rise to the consequence of failure to elect must as aforesaid, is interpreted to mean that nobody emerged as a winner.
© Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. [G.R. No. 134696. July 31, 200]TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS and FLORENCIO M. BERNABE, JR., respondents


PART II. BASIC QUESTIONS

1. Which body has jurisdiction over the following:
(a) investigation of election offenses
(b) trying election offenses
(c) petition to cancel certificate of candidacy
(d) Barangay election protest
(e) Pre-proclamation controversy

2. Will the determination of the MTC in the exclusion proceeding preclude the COMELEC from determining the candidate’s residency qualification requirement? (see p.279).
3. State some of the grounds for the suspension of the canvass of election returns. (see. p. 406)
4. The general rule is that the COMELEC has no power over pre-proclamation cases in election contest for President, Vice-President and Members of Congress. State at least two exceptions. (see. p. 427)
5. What is the remedy in case there has been a manifest error in the computation of votes,which would affect the result of the election and there has been a proclamation of the candidate who was favored by the error? (see p. 447)
6. The general rule is that a pre-proclamation controversy must be filed with the COMELEC before a proclamation of the winning candidate is made. What is the exception to this rule? (see p. 478, 515)
7. Concerning the quo warranto petition concerning a provincial elective position pursuant to Sec. 21 of the rules, state the following: (a) who files it? (b) on what grounds? (c) where to file it specifically on what department of the COMELEC? (E) within what period? (see p. 532)
8. State whether the following mark shall invalidate the ballot or not: (a) forget me not (p. 346) (b) That’s all (c) wala na (p. 347) (d) placing an “x” mark to the left of a name of a candidate and another “x” after said name, in a ballot which is otherwise neat and filled with only a few names (p. 348) (e) writing the notation “marked ballot” on the ballot (p. 349)
9. If all the copies of the returns are falsified and the identity and integrity of the ballot boxes involved are open to doubt, what should be the remedy of the candidate affected? (see p. 409 , the certificate of votes may be used)
10. State at least three instances when a proclamation made by the board of canvassers is null and void. (see p. 416).

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