11

PRELIMINARIES

ELECTION is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the act of casting and receiving the ballots, counting them, and making the return. (Hontiveros v. Altavas, G.R. No. L-13959, 05 December 1918)

An election involves every element necessary to the complete ascertainment of the expression of the popular will, embracing the entire range, from the deposit of the ballot by the elector up to the fi nal ascertainment and certifi cation of the result. An election by the people means and includes the perfect ascertainment of such result. (Moreno, F., Philippine Law Dictionary, 1972 ed.)

SUFFRAGE is the right to vote in election of offi cers chosen by people and in the determination of questions submitted to people. (Nachura, A., Outline Reviewer in Political Law, 2009 ed.) Suffrage, or sometimes called political franchise, is the civil right to vote, or the exercise of that right. Suffrage may apply to elections, but also extends to initiatives and referenda. Suffrage is used to describe not only the legal right to vote, but also to the practical question of the opportunity to vote, which is sometimes denied those who have a legal right.

In the Philippines, suffrage may be exercised by the follow-ing:

Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualifi ed by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Article V, 1987 Constitution)

AN OVERVIEW OF THE PHILIPPINE ELECTORAL SYSTEM2

Kinds of Election:1. Regular election refers to an election participated in

by those who possess the right of suffrage and not disqualifi ed by law and who are registered voters.

2. Special election when there is a failure of election on the scheduled date of regular election in a particular place or which is conducted to fi ll up certain vacancies, as provided by law.

a. Plebiscite electoral process by which an initiative on the Constitution is approved or rejected by the people.

b. Initiative power of the people to propose amendments to the Constitution or to propose and enact legislations through election called for the purpose. (Sec. 2 [a], R.A. 6735)

Classes of Initiative:

1. On the Constitution

2. On Statutes

3. On Local Legislation

c. Referendum power of the electorate to approve or reject a piece of legislation through an election called for the purpose. (Sec. 2 [c], R.A. 6735)

Classes of Referendum:

1. On Statutes

2. On Local Laws

d. Recall the termination of offi cial relationship of a local elective public offi cial for loss of confi dence by the people prior to the end of his term of offi ce. (Sec. 69, R.A. 7160 LGC)

3. Manual Election Manual/mechanical casting/vot-ing, counting, and canvassing stages which involves the follow-ing:

a. Use of paper write-in ballots during casting stage;

b. The direct reading and manual tallying of votes in multiple copies of election returns (ER); and

3PRELIMINARIES

c. The direct reading of election returns and writing of results in multiple copies of Statement of Votes (SOV); and

d. The manual addition of results in SOVs and the Certifi cates of Canvass (COCs).

4. Automated Election System (AES) a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process. (Sec. 2, R.A. 9369)

ELECTION and CAMPAIGN PERIODUnder the 1987 Constitution:

Section 9. Unless otherwise fi xed by the Com-mission in special cases, the election period shall commence ninety (90) days before the day of election and shall end thirty (30) days thereafter. (Article IX-C, 1987 Constitution)

Under R.A. 7166:

Section 5. Election and Campaign Period. Unless otherwise fi xed by the Commission, the election period for the xxx regular elections shall commence ninety (90) days before the day of the election and shall end thirty (30) days thereafter.

The campaign periods are hereby fi xed as follows:

(a) For President, Vice-President and Senators, ninety (90) days before the day of the election; and

(b) For Members of the House of Representatives and elective provincial, city and municipal offi cials, forty-fi ve (45) days before the day of the election.

However, in the preparation of the election calendar, the Commission may exclude the day before the day of the election itself, Maundy Thursday and Good Friday.

Any election campaign or partisan political activity for or against any candidate outside of the campaign period herein provided is prohibited and shall be considered as an election offense punishable under Section 263 and 264 of the Omnibus Election Code. (R.A. 7166)

i856 Nicanor Reyes, Sr. St.Tel. Nos. 736-05-67 735-13-64

1977 C.M. Recto AvenueTel. Nos. 735-55-27 735-55-34

Manila, Philippineswww.rexpublishing.com.ph

Published & Distributed by

AN OVERVIEW OF THE PHILIPPINEELECTORAL SYSTEM

by

ATTY. RYAN REY SEVERINO QUILALA

ii

Philippine Copyright 2011

by

RYAN REY SEVERINO QUILALA

ISBN 978-971-23-6012-1

No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the authorized representative of the publisher except brief passages in books, articles, reviews, legal papers, and judicial or other of cial proceedings with proper citation.

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iii

PREFACE

The study of Election Laws is very complicated because, aside from the fact that the Omnibus Election Code has undergone several amendments and revisions since 1985, the sequence of provisions is not in accordance with the ow of election system in our country. Several provisions are somehow misplaced. Provisions on Postponement and Failure of elections are found in Sections 5 and 6 when they should be in the chapter on casting stage. Disquali cations can be found in Section 12 and then again in Section 68. Chapter IX thereof discussed rules on candidacy while the de nition of a candidate can only be found in the next chapter. The Code, likewise, discussed the rules on campaign before rules on registration of voters when it should be the other way around. Thus, studying election laws via the codal provisions alone can be a disaster.

My election law life started in 1992 when I wrote the names of Jovito Salonga and Aquilino Pimentel, Jr. in my ballot. The next elections in 1995, I was a watcher and, afterwards, a youth advocate for No to Dagdag-Bawas. In 1998, while being a youth leader for Lakas ng Kabataan kay De Venecia (LAKAD), as a law student, I was asked to draft the petition for the accreditation of the Philippine Peoples Parliament (PPP-Youth) and was eventually chosen as the second nominee thereof in the rst ever party-list election in the country.

In the 2001 elections, I was assigned as assisting counsel for Mayor Benhur Abalos by my former employer Lim and Ocampo Law Of ces. In 2002, Dean Abraham Espejo gave me my rst ever teaching load and the subject given to me was, surprisingly, election laws. It was dif cult to teach the said subject rst because most books at that time were not updated. Thus, I attended several seminars on election laws to keep me abreast in the said eld. From the lectures, I made my own notes for the bene t of my students and bar examinees.

By 2004, I have already nished an outline reviewer in election laws based on the sequence of events in our electoral

iv

system including provision of the 1987 Constitution, the Local Government Code, and other special election laws. I also made my own owchart (attached as Annex A hereof) of the whole system in order to show my students an overview of the subject. In 2005, Jurists Bar Review accorded me with the opportunity to lecture election laws in the regular review. Conversely, when R.A. 9369 was enacted in 2007, I never had the chance to update my outline reviewer because I got married on the same year and had enjoyed fatherhood in the succeeding years. I had no worries in putting the updates in abeyance because the poll automation provisions of R.A. 9369 were not implemented in the 2007 elections.

Seeing that the Automated Election System (AES) will be fully implemented in the 2010 Elections, Ive nally made the updated version of my outline by including the AES provisions of R.A. 9369, several COMELEC Resolutions in connection with the poll automation, and the latest jurisprudence on election laws. Thereafter, I was invited to be a lecturer on the nuances of R.A. 9369 by the University of Batangas and University of the East Law Center, Inc. (UELCI) in their Mandatory Continuing Legal Education (MCLE) seminars respectively. I also became one of the retained counsel of the Partido Demokratiko Pilipino Laban ng Bayan (PDP Laban) for the 2010 National Elections.

With these humble achievements, I thought my election law life was already complete I was a registered voter; I studied the law; I became a watcher; I have already led my own certi cate of candidacy; I taught the law; I lectured the law to bar reviewees and lawyers; I have appeared in local and national canvassing boards; I have experienced rst-hand the dagdag-bawas orchestrated in Maguindanao in 2007; I am a member of a national political party; and I have my outline notes. The only thing left to do is to author a book on election laws.

It was, however, only during the wake of the late Atty. Francisco J. Sababan in February 2011 when a former student of mine nally made me realize the importance of having my work published.

Many ersatz election lawyers claim that the passage of R.A. 9369 would make the manual elections a thing of the past. As they obviously have not read or understood the full text of the law, R.A. 9369 itself acknowledges the possible switch from automated elections to manual polls by amending provisions on

vmanual counting (Sections 31 and 35), manual preparation and transmission of election returns (Sections 32 and 33), manual canvassing thereof (Section37 and 39) and manual preparation and distribution of the certi cate of canvass (Section 40). In fact, unknown to many, R.A. 9369 has already been used in the 2007 National and Local manual Elections. Thus, even with the full implementation of poll automation under R.A. 9369 in the 10 May 2010 National Elections, we reverted to manual election in the 25 October 2010 Barangay Elections under the same law (R.A. 9369).

This book is presented in such a way that law students, bar reviewees, members of the bench and the bar would no longer have to cross-refer the law to the implementing rules to the applicable jurisprudence and to how a certain topic was asked in the bar examinations. No need to look at the footnotes, endnotes, bibliography or even annexes on whether the provision is applicable to manual or automated or both kinds of elections. This is an all-in easy reference book in election laws.

ATTY. RYAN REY S. QUILALA2011 Edition

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vii

ACKNOWLEDGMENT

There are three things a man must do before he dies: plant a tree, father a child, and write a book. In this picture, Jordan, you have done all three. It is your seed, your child, your story. (The Gift: An except from Rick Skwiots Mexican Novel Sleeping with Pancho Villa)

In my life I have planted so many trees. I have already fathered not only a child but two gorgeous daughters (Ryanne and Raya). And now Ive written a book for them to always remember their father by.

I dedicate this work to my wife Ria, my father Judge Reinato G. Quilala, my mother Lirio De Vera Severino, and to all my siblings: Sunny, Mae, Rainier and Roemil, and their respective families, my in-laws, and to my Lola Rosing who died while I was reviewing for the bar exams.

Special thanks to COMELEC Chairman Sixto Brillantes who was my professor in Election Laws; the late Assemblyman Antonio Tupas and Prof. Edwin Rey Sandoval for being my mentors in Political Laws; to Dean Abraham Espejo for giving me the break to teach election laws in the College of Law despite not being a topnotcher nor an honor graduate; Dean Williard Riano for the trust and con dence; DOJ Sec. Leila De Lima for the casting and canvassing training; Prof. Manuel Riguera of Jurists Bar Review for entrusting the regular bar review lectures on election laws since 2005; Legal Advantage through Atty. Reynold Munsayac; Luminous Bar Review and University of Batangas through Atty. Erickson Balmes; University of the East Law Center, Inc. (UELCI) for allowing me to conduct lectures in election laws, among others, in their Mandatory Continuing Legal Education (MCLE) seminars; my kumpares Attys. Erickson Alcovendaz, Ferdinand Tan, Gemylito Festin and Larry Ignacio for their sincere motivations to write this book; the late Atty. Francis Sababan, without whom the consummation of this book would not be possible; Loise Mae for assisting in the proofreading; Rainier Paul

viii

for the cover design; Christian Robert for the manual research; Evarra; and the PDP Laban through Atty. Koko Pimentel and Joey De Venecia. I am especially indebted to Atty. Maria Theresa Cabayan, one of my brightest students in Election Laws. The publishing of this book was made possible by her assistance.

Dont Stop Believing!Live Jesus in our HeartsForever!

ix

FOREWORD

It gives me a great feeling of pride and satisfaction to have been asked by my inaanak Atty. Ryan Rey S. Quilala to write the foreword to his rst ever book on election law.

Atty. Quilala has been my lawyer in many electoral battles. He has helped me too in many of my fathers senatorial canvassing.

In short, Atty. Quilala knows the subject that he has written about.

The promises of automated elections have not all been achieved. Our people must be informed about these shortcomings and the reasons why reality has been much separated from what is written in the law. Electoral fraud can again rear its ugly head anytime, even under computerized elections. So, the actual lesson we all need to learn from our electoral experiences is that, if we value our democracy, then we all should be vigilant against the various forms and manifestations of electoral fraud. And, I should add, if we have identi ed the cheaters, then we must teach them a lesson in subsequent elections by outrightly rejecting them.

Atty. Quilala has presented the relatively complicated subject of election law in a much simpli ed and organized way. This manner of presentation will surely help law students and election law practitioners understand and practice election law better and more pro ciently.

Better understanding of the law which leads to better practice of election law will lead to better decisions in election cases and ultimately (or hopefully) to better leaders elected through the ballot box.

Partido Demokratiko Pilipino

Lakas ng Bayan(PDP LABAN)

x I hope that the success of this book will inspire Atty. Ryan Quilala to write more books on election law and even on other topics.

Congratulations Ryan. Good work.

Atty. Aquilino L. Pimentel, IIIPresident

Partido Demokratiko Pilipino Laban ng Bayan (PDP Laban)

xi

ABOUT THE AUTHOR

ATTY. RYAN REY SEVERINO QUILALA is the youngest child of Judge Reinato G. Quilala of San Juan, Ilocos Sur, and Lirio De Vera Severino of Urbiztondo, Pangasinan and Silay, Negros Occidental. He obtained his Bachelor of Arts degree from De La Salle University as a Deans Lister and his Bachelor of Laws degree from the San Sebastian College-Recoletos de Manila (SSC-R). He was admitted to the Philippine Bar in 2001.

He has been a member of the law faculty of SSC-R since 2002. He mainly teaches Election Laws and has handled Constitutional Law I, Local Government, Administrative Laws, Sales and Special Contracts, Legal Forms and Writing, Practice Court, among others. In 2003, he was appointed as the College Secretary and eventually as the Associate Dean for Student Affairs in the same College in 2005. He was the founding Bar Review Director of the Recoletos Review Center-Manila in 2004 and a Special Lecturer in Election Laws thereat and organized the Centralized Bar Operations (Bar Ops) of the SSC-R. He is also a regular Bar Review Lecturer in Election Laws, Local Government, Administrative Laws, and International Laws for Jurists Bar Review and Luminous Bar Review, and as Pre-Week Lecturer in Election Laws for Legal Advantage in 2008.

He is, in addition, a Mandatory Continuing Legal Education (MCLE) Lecturer in Election Laws, Updates in Political Laws and Alternative Dispute Resolution (ADR) for the University of Batangas and the University of the East Law Center, Inc. (UELCI).

His election experience started as a youth advocate of No to Dagdag Bawas for Senator Aquilino Nene Pimentel, Jr. in 1995 and as a youth leader for Lakas ng Kabataan para kay De Venecia (LAKAD) in the 1998 Presidential Elections. From then on, he has been a casting/canvassing counsel for several local and national candidates. In 2007, he was one of the counsel for Atty. Aquilino Koko Pimentel IIIs senatorial bid. In the 2010

xii

National Elections, he became the retained counsel of Partido Demokratiko Pilipinas Laban ng Bayan (PDP LABAN) for now Vice President Jejomar C. Binay and Atty. Gwendolyn Pimentel (for Senator). He is currently the National Vice-Chairperson of the Committee on Legal Affairs and Arbitration of the PDP Laban and manages his own law rm in Makati City.

xiii

CONTENTS

Preliminaries ................................................................... 1Kinds of Election .............................................................. 2Election and Campaign Period ......................................... 3

Chapter I

The Commission on Elections (COMELEC)

Composition, Quali cation, Appointment and Terms of Of ce of the Commission on Elections .................. 4En Banc and Division Cases of the COMELEC ................. 5Powers and Functions of the COMELEC ........................... 7Important Powers and Functions of the COMELEC .......... 15Bar Questions .................................................................. 22

Chapter II

Registration of Voters

Ban ................................................................................ 25Quali cations of Voters .................................................... 26Disquali cations of Voters ................................................ 27Double Registrants .......................................................... 28Illiterate and Disabled Voters ........................................... 29Election Registration Board ............................................. 30Deactivation, Reactivation and Cancellation of Registration .......................................................... 31Inclusion and Exclusion Proceedings ............................... 34Common Rules Governing Judicial Proceedings in the Matter of Inclusion, Exclusion, and Correction of Names of Voters ................................... 36Annulment of book of voters ............................................ 37Changes in the list/book of voters .................................... 38Who may vote in an election ............................................ 39

Chapter III

Absentee Voting

Local Absentee Voting ...................................................... 40

xiv

Disapproval of the application for local absentee voting ....................................................................... 41Overseas Absentee Voting (OAV) ....................................... 41Detainee Voting ................................................................ 44Bar Questions .................................................................. 44

Chapter IV

Political Parties

The Party-List System Act ................................................ 47Refusal and/or Cancellation of Registration of Political Parties under the Party-list System .......................... 48The eight point guidelines for screening Party-list participants according to the Ang Bagong Bayani OFW case ..................................................... 49Window-dressing of Party-list participant ...................... 51New Formula in the Allocation of Seats for Party-list Representatives .................................... 51

Chapter V

Rules on Candidacy

Deadline for ling Certi cate of Candidacy (COC) ............. 54Contents of Certi cate of Candidacy ................................ 56Prohibition against multiple candidacies .......................... 59Effect of Filing a Certi cate of Candidacy for Public Of cials .................................................... 60Disquali cation to be a candidate .................................... 62Duty to receive certi cates of candidacy ........................... 66Where to le certi cate of candidacy ................................ 67Quali cations and Terms of Of ce of Candidates ............. 68Disquali cation of Candidates.......................................... 77Falsity of material representation in certi cate of candidacy ............................................................. 80Effects of disquali cation case ......................................... 82Substitution .................................................................... 84Substitution of candidates in the 2010 Barangay elections ................................................................... 86Independent candidate as de ned in the 2010 National and Local elections ..................................... 87Effect of substitution of candidates after of cial ballots have been printed in AES .............................. 87Lone Candidate Law ........................................................ 88Constitutional Prohibitions .............................................. 89

xv

Authorized Expenses of Candidates and Political Parties ........................................................ 90Statement of Contributions and Expenditures: Effect of Failure to File Statement............................. 90Bar Questions .................................................................. 91

Chapter VI

Campaign and Election Propaganda

Nomination of candidates ................................................ 107Campaign period ............................................................. 108Prohibited Campaigning ................................................... 108Prohibited forms of election propaganda in the 2010 Elections ......................................................... 111Election Surveys .............................................................. 120Exit Polls ......................................................................... 121Rallies ......................................................................... 121Prohibited donations ........................................................ 122Prohibited contributions .................................................. 123Foreign Aid ...................................................................... 124Prohibited Fund Raising .................................................. 124Limitation on expenses .................................................... 126Statement of contributions and expenditures ................... 126Filing of Statement of Contributions and Expenditures ............................................................ 127Penalties for failure to le statement ................................ 127Effect of Withdrawal of Candidacy .................................... 127Bar Questions .................................................................. 128

Chapter VII

Board of Election Inspectors

Powers and Functions of the BEI ..................................... 133

Chapter VIII

Of cial Watchers

Number of of cial watchers allowed ................................. 136Other watchers ................................................................ 136Quali cations of watchers ................................................ 136Rights and duties of watchers .......................................... 137Challenge against illegal voters ........................................ 139Challenge based on certain illegal acts ............................. 140

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Chapter IX

Precincts and Polling Places

Precincts ......................................................................... 141Arrangement of election precincts .................................... 142Polling Place .................................................................... 142Designation and requirements of polling places ................ 143Buildings that shall not be used as polling places ............ 143Clustering of Precincts ..................................................... 144

Chapter X

Casting of Votes

History of Republic Act No. 9369 ...................................... 146Salient Features of R.A. 9369 ........................................... 150Voting Hours .................................................................... 158Postponement of Election ................................................. 161Failure of Election ............................................................ 162

Chapter XI

Counting of Votes

Preliminaries to counting of votes .................................... 167Special Problems in MANUAL Elections ............................ 172Rules of appreciation of ballots ........................................ 175Correction of Returns ...................................................... 181Certi cate of Votes (COV) ................................................. 183Election Returns .............................................................. 184Bar Questions .................................................................. 188

Chapter XII

Canvassing and Proclamation

Canvassing Bodies ........................................................... 190Compositions of the BOC in the May 2010 Elections ........ 197Procedures in Manual Canvassing ................................... 199Consolidation and Canvassing System (CCS) Operators ................................................................. 210Powers and functions of the BOC in an AES .................... 211Watchers during Canvassing ............................................ 211Problem Areas in Manual Canvassing .............................. 213Persons not allowed inside the canvassing room .............. 218Reception and Custody Group (RCG) in AES .................... 219Duties and Responsibilities of the RCG ............................ 220

xvii

Issues that may be raised during the consolidation/ canvass .................................................................... 221Rights of candidates ........................................................ 222In case of a Tie................................................................. 223Failure to assume Of ce .................................................. 223Bar Questions .................................................................. 226

Chapter XIII

Pre-Proclamation Controversy

What are issues that may be raised ................................. 228Issues that may be raised in pre-proclamation controversy .............................................................. 229Rule on Statistical Improbability, Lagumbay Doctrine .................................................................. 232Jurisdiction over Pre-Proclamation Controversies ............ 239Procedure in case of Contested Returns ........................... 241Rights of Political Parties and Candidates Before the Board of Canvassers in Pre-Proclamation Cases . 245Bar Questions .................................................................. 245

Chapter XVI

Election Contest

Two Types of Election Contest .......................................... 248Jurisdiction ..................................................................... 249Procedure ........................................................................ 250Contents of the Election Protest or Petition for Quo Warranto .......................................................... 257Prohibited Pleadings ........................................................ 266Bar Questions .................................................................. 267

Chapter XV

Election Offenses

Jurisdiction to Try the Case ............................................. 271Jurisdiction to Prosecute ................................................. 272Prohibited Acts ................................................................ 272Persons Criminally Liable ................................................ 307Prescription of the Offense ............................................... 307Bar Questions .................................................................. 307

Annex A Electoral Process in the Philippines ............... 309Annex B Post-Election Day Remedies .......................... 310

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