BarQs Flashcards
Is a law requiring all candidates for national or local
elective offices to be college degree holders constitutional?
The law requiring all candidates for national or local elective offices to be college degree holders should be
considered as unconstitutional with respect to national
elective offices, because it is not one of the qualifications
specifically required for these offices. The qualifications for
these positions under the Constitution are exclusive in character and the Congress would be incompetent to
prescribe this requirement as an additional qualification for candidates for national elective office. This additional
requirement would, however, be valid with respect to
candidates for local elective posts. (Social Justice Society v.
Dangerous Drugs Board, G.R. No. 157870, 03 Nov. 2008)
Congress enacted Republic Act No. 1234 requiring all
candidates for public offices to post an election bond
equivalent to the one (1) year salary for the position for
which they are candidates. The bond shall be forfeited
if the candidates fail to obtain at least 10% of the votes
cast. Is Republic Act No. 1234 valid?
It is invalid as the requirement effectively
imposes a property qualification to run for
public office.
In the May 8, 1995 elections for local officials whose
terms were to commence on June 30, 1995, Ricky filed
on March 20, 1995 his certificate of candidacy for the
Office of Governor of Laguna. He won, but his qualifications as an elected official was questioned. It is
admitted that he is a repatriated Filipino citizen and a
resident of the Province of Laguna. To be qualified for
the office to which a local official has been elected,
when at the latest should he be: (2005 BAR)
(a) A Filipino Citizen? Explain.
To be qualified for the office to which a local official has
been elected, it is sufficient that he is a Filipino citizen at the
time of his proclamation and at the start of his term.
Philippine citizenship is required for holding an elective
public office to ensure that no person owing allegiance to
another country shall govern our people and a unit of the
Philippine territory. An official begins to discharge his
functions only upon his proclamation and on the day his
term of office begins. (Frivaldo v. Commission on Elections,
GR No. 120295, 28 June 1996)
In the May 8, 1995 elections for local officials whose
terms were to commence on June 30, 1995, Ricky filed
on March 20, 1995 his certificate of candidacy for the
Office of Governor of Laguna. He won, but his qualifications as an elected official was questioned. It is
admitted that he is a repatriated Filipino citizen and a
resident of the Province of Laguna. To be qualified for
the office to which a local official has been elected,
when at the latest should he be: (2005 BAR)
(b) A resident of the locality? Explain.
To be qualified for the office to which a local official has been elected, he must be a resident of the locality for at least one year immediately before the election. (Sec. 39(a), Local Government Code)
Under the Local Government Code, name four
persons who are disqualified from running for any
elective position.
Under Section 40 of the Local Government Code, the
following are disqualified from running for any local
elective position:
1. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
2. Those removed from office as a result of an administrative case;
3. Those convicted by final judgment for violating the oath
of allegiance to the Republic of the Philippines;
4. Those with dual citizenship;
5. Fugitives from justice in criminal or nonpolitical cases
here or abroad;
6. Permanent residents in a foreign country or those who
have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of the Local
Government Code; and
7. The insane or feeble-minded. (UPLC Suggested Answers)
W, the incumbent Congressman of the Province of Albay, decided to run for Governor. He filed his
certificate of candidacy (CoC) for Governor without
resigning from his post and continued exercising his
duties as Congressman, such as attending plenary
sessions and committee hearings in the House of
Representatives.
One of W’s fiercest critics, X, claimed that W should not
be dispensing the functions of a Congressman since he is deemed ipso facto resigned as such upon his filing of
a CoC for Governor of Albay. (2019 BAR)
(a) Is X’s argument correct? Explain.
The argument of X is not correct. Sec. 14 of RA 9006 (Fair
Elections Act) reads: “Sec. 14. Repealing Clause. – Secs. 67
and 85 of the Omnibus Election Code (Batas Pambansa Blg.
881) and Secs. 10 and 11 of Republic Act No. 6646 are hereby
repealed.” Sec. 47 of BP 881, which deemed elective officials
ipso facto resigned when they file their Certificate of
Candidacy, is inoperative, and therefore W may still
continue office.
Assuming that W is instead, an incumbent
Undersecretary of the Department of National Defense, what is the effect of the filing of his CoC for the position of Governor of Albay to said post?
Explain.
W would be considered ipso facto resigned. Under Sec.
66 of the Omnibus Election Code (BP 881), “any person
holding a public appointive office or position, including
active members of the Armed Forces of the Philippines, and
officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.” W,
as Undersecretary of the Department of National Defense, is
an appointive official, and therefore falls under this
provision
In 1990, Agripina migrated to Canada and acquired
Canadian citizenship. In 2008, Agripina retired and
returned to the Philippines to permanently reside in
her hometown of Angeles, Pampanga. A month after
returning to the Philippines, Agripina took her oath of
allegiance and executed a sworn renunciation of her
Canadian citizenship in accordance with R.A. No. 9225.
In 2009, Agripina filed her certificate of candidacy for
Congress for the 2010 elections. Agripina’s political rivals lost no time in causing the filing of various
actions to question her candidacy. They questioned her
eligibility to run as member of Congress. Since Agripina
had to take an oath under R.A. No. 9225, it meant that
she needed to perform an act to perfect her Philippine
citizenship.
Hence, they claimed that Agripina could not be considered a natural-born citizen. Agripina raised the defense that, having complied with the requirements of R.A. No. 9225, she had reacquired, and was deemed never to have lost, her Philippine citizenship.
Is Agripina disqualified to run for Congress for failing
to meet the citizenship requirement? (2018 BAR)
Agripina is eligible to run as member of Congress.
Repatriation results in the recovery of a person’s original
nationality. This means that a naturalized Filipino who lost
his citizenship will be restored to his prior status as a Filipino citizen. If she were originally a natural-born citizen before she lost her Philippine citizenship, she would be restored to her former status as a natural-born Filipino.
(Bengson III vs. HRET, G.R. No. 142840, 7 May 2001)
RA 9225 makes a distinction between those natural-born
Filipinos who became foreign citizens before and after the effectivity of RA No. 9225. For those who were naturalized in a foreign country, they shall be deemed to have
reacquired their Philippine citizenship which was lost pursuant to CA 63. In the case of those who became foreign citizens after RA 9225 took effect, they shall retain Philippine citizenship despite having acquired foreign citizenship, provided they take the oath of allegiance under the new law.
Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of RA 9225, she belongs to the first category of natural-born Filipinos who lost their Philippine citizenship by naturalization in a foreign country, under the first paragraph of Section 3. As the new
law allows dual citizenship, she was able to reacquire her
Philippine citizenship by taking the required oath of allegiance (See Bengson v. HRET and as affirmed by Poe-
Llamanzares v. COMELEC, G.R. No. 221697, 8 Mar. 2016).
President Alfredo died during his third year in office.
In accordance with the Constitution, Vice President Anastasia succeeded him. President Anastasia then nominated the late President Alfredo’s Executive
Secretary, Anna Maria, as her replacement as Vice
President. The nomination was confirmed by a majority of all the Members of the House of Representatives and
the Senate, voting separately.
Can Anastasia run as President in the next election?
(2018 BAR)
YES, Anastacia can still run as President in the next election since she has served for less than four years. Sec. 4,
Art. VII of the 1987 Constitution provides that no person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same
office at any time. (UPLC Suggested Answers)
During his third term, “A”, a Member of the House of Representatives, was suspended from office for a period of 60 days by his colleagues upon a vote of two thirds
of all the Members of the House. In the next
succeeding election, he filed his certificate of candidacy for the same position. “B”, the opposing candidate, filed
an action for disqualification of “A” on the ground that
the latter’s, candidacy violated Sec. 7, Art. VI of the Constitution which provides that no Member of the
House of Representatives shall serve for more than
three consecutive terms. “A” answered that he was not
barred from running again for that position because his service was interrupted by his 60-day suspension
which was involuntary. Can ‘A’, legally continue with his candidacy or is he already barred? Why?
“A” cannot legally continue with his candidacy. He was
elected as Member of the House of Representatives for a
third term. This term should be included in the computation
of the term limits, even if “A” did not serve for a full term.
(Record of the Constitutional Commission, Vol. n, p. 592) He
remained a Member of the House of Representatives even if
he was suspended.
In 1989, Zeny Reyes married Ben Tulog, a national of the State of Kongo. Under the laws of Kongo, an alien woman marrying a Kongo national automatically
acquires Kongo citizenship. After her marriage, Zeny resided in Kongo and acquired a Kongo passport. In 1991, Zeny returned to the Philippines to run for
Governor of Sorsogon. (1994 BAR)
(a) Was Zeny qualified to run for Governor?
Zeny retained her Filipino citizenship. Since she also
became a citizen of Kongo, she possesses dual citizenship.
Pursuant to Sec. 40 (d) of the Local Government Code, she is
disqualified to run for governor. In addition, if Zeny
returned to the Philippines, less than a year immediately
before the day of the election, Zeny is not qualified to run
for Governor of Sorsogon. A candidate for governor must be
a resident in the province where he intends to run at least
one (1) year immediately preceding the day of the election.
(Sec. 39(a) of the Local Government Code) By residing in
Kongo upon her marriage in 1989, Zeny abandoned her
residence in the Philippines. (Caasi v. Court of Appeals, G.R.
No. 88831, 08 Nov. 1990)
H, a naturalized American citizen who later became a dual citizen under Republic Act No. 9225 (the
Citizenship Retention and Re-acquisition Act), decided to run for Congress and thus, filed a certificate of candidacy (CoC). A citizen argued that H is ineligible for the position because of his status as a dual citizen.
H responded that his act of filing a CoC amounted to his
renunciation of foreign citizenship, rendering him
eligible for the position.
Was H’s filing of a CoC sufficient to renounce
foreign citizenship? Explain.
NO, H’s filing of a CoC is not sufficient to renounce
foreign citizenship. Section 5(3) of RA 9225 requires that
“Those appointed to any public office shall subscribe and
swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that
oath”.
Pedro Reyes is an incumbent Vice-Mayor of Quezon
City. He intends to run in the regular elections for the
position of City Mayor of Quezon City whose incumbent
mayor would have fully served three consecutive terms
by 2004. (2003 BAR)
1. Would Pedro Reyes have to give up his position as
Vice-Mayor:
The correct answer is (e). Section 14 of the Fair Election
Act repealed Section 67 of the Omnibus Election Code,
which provided that any elected official, whether national
or local, who runs for any office other than the one he is
holding in a permanent capacity, except for President and
Vice President, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.
Section 14 of the Fair Election Act likewise rendered
ineffective the first proviso in the third paragraph of Section
11 of Republic Act No. 8436.
Consequently, Pedro Reyes can run for Mayor without
giving up his position as Vice-Mayor. He will have to give up
his position as Vice-Mayor upon expiration of his term as
Vice-Mayor on June 30, 2004. (UPLC Suggested Answers)
Assuming that H is a dual citizen because his parents are Filipino citizens and he was born in California, USA, was filing of a CoC sufficient to renounce his foreign citizenship? Explain.
NO, the filing of his CoC was not sufficient to renounce his
foreign citizenship. R.A. No. 9225 categorically demands
natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an
authorized public officer prior to or simultaneous to the
filing of their certificates of candidacy, to qualify as
candidates in Philippine elections. The rule applies to all
those who have re-acquired their Filipino citizenship,
without regard as to whether they are still dual citizens or
not. (Sobejana-Condon v. Commission on Elections, G.R. No.
198742, 10 Aug. 10, 2012)
If Pedro Reyes were, instead, an incumbent
Congressman of Quezon City, who intends to seek
the mayoralty post in Quezon City, would your
choice of answer in no. (1) above be the same? If
not, which would be your choice
The answer is the same if Pedro Reyes is a Congressman
of Quezon City, because the repeal of Section 67 of the
Omnibus Election Code covers both elective national and
local officials. (ibid.)
A, a City Legal Officer, and B, a City Vice- Mayor, filed
certificates of candidacy for the position of City Mayor
in the May 14, 2001 elections. (2002 BAR)
(a) Was A ipso facto considered resigned and, if so,
effective on what date?
A was considered ipso facto resigned upon the filing of
his certificate of candidacy, because being a City Legal
Officer, he is an appointive official. Section 66 of the Omnibus
Election Code provides that any person holding a public
appointive office shall be considered ipso facto resigned
upon the filing of his certificate of candidacy. (UPLC
Suggested Answers)
A, a City Legal Officer, and B, a City Vice- Mayor, filed
certificates of candidacy for the position of City Mayor
in the May 14, 2001 elections.
Was B ipso facto considered resigned and, if so,
effective on what date? In both cases, state the reason or reasons for your answer.
B is not considered ipso facto resigned. Section 67 of the
Omnibus Election Code considers any elective official ipso
facto resigned from office upon his filing of a certificate of
candidacy for any office other than the one he is holding
except for President and Vice-President, was repealed by
the Fair Election Act.
What is a “stray ballot”?
Under Rule No. 19 of the rules for the appreciation of
ballots in Section 211 of the Omnibus Election Code, stray
ballot is one cast in favor of a person who has not filed a
certificate of candidacy or in favor of a candidate for an
office for which he did not present himself. Although the
Code does not provide for stray ballot, it is presumed that
stray ballot refers to stray vote.
Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-Governor of Tawi-Tawi. After being
proclaimed Vice Governor in the 2004 elections, his opponent, Khalil, filed an election protest before the
Commission on Election. Ruling with finality on the
protest, the COMELEC declared Khalil as the duly
elected Vice- Governor though the decision was
promulgated only in 2007, when Abdul had fully served
his 2004-2007 term and was in fact already on his
2007-2010 term as Vice Governor.
Abdul also consults you whether his political party can
validly nominate his wife as substitute candidate for
Vice- Mayor of Tawi-Tawi in May 2010 elections in case
the COMELEC disqualifies him and denies due course to
or cancels his certificate of candidacy in view of a false material representation therein. What will be your advice?
shall advise Abdul that his wife cannot be nominated as
substitute candidate for Vice- Governor of Tawi-Tawi. The
denial of due course and cancellation of a certificate of
candidacy is not one of the cases in which a candidate may
be validly substituted. A cancelled certificate does not give
rise to a valid candidacy. Under Section 77 of the Omnibus
Election Code, a valid candidacy is an indispensable
requisite in case of a substitution of a disqualified
candidate. (Miranda v. Abaya, GR No. 136351, 28 Jul. 1999)
Mayor Pink is eyeing re-election in the next
mayoralty race. It was common knowledge in the town
that Mayor Pink will run for re-election in the coming
elections. The deadline for filing of Certificate of Candidacy (CoC) is on March 23 and the campaign
period commences the following day. One month
before the deadline, Pink has yet to file her CoC, but she
has been going around town giving away sacks of rice
with the words “Mahal Tayo ni Mayor Pink” printed on
them, holding public gatherings and speaking about
how good the town is doing, giving away pink t-shirts
with “Kay Mayor Pink Ako” printed on them. Mr. Green
is the political opponent of Mayor Pink. In April,
noticing that Mayor Pink had gained advantage over
him because of her activities before the campaign
period, he filed a petition to disqualify Mayor Pink for
engaging in an election campaign outside the
designated period Which is the correct body to rule on the matter?
Comelec en banc, or Comelec division? Answer with
reasons.
It is the Commission on Elections en banc which should
decide the petition. Since it involves the exercise of the
administrative powers of the Commission on Election,
Section 3, Article Ix-C of the Constitution is not applicable.
(Baytan V. COMELEC, 396 SCRA 703, 04 Feb. 2003)
In April,
noticing that Mayor Pink had gained advantage over
him because of her activities before the campaign
period, he filed a petition to disqualify Mayor Pink for
engaging in an election campaign outside the
designated period. Rule on the petition.
The petition should be denied. Under Section 80 Of the
Omnibus Election Code, to be liable for premature
campaigning, he must be a candidate and unless he filed his
CoC, he is not a candidate. (Lanot Vs. Commission on
Elections, 507 SCRA 114. 16 Nov. 2006)
Two petitions for the cancellation of Certificate of
Candidacy (CoC)/Denial of Due Course were filed with
the Comelec against two candidates running as
municipal mayors of different towns.
The first petition was against Anselmo. Years ago,
Anselmo was charged and convicted of the crime of
rape by final judgment and was sentenced to suffer the
principal penalty of reclusion perpetua which carried
the accessory penalty of perpetual absolute
disqualification. While Anselmo was in prison, the
President commuted his sentence and he was
discharged from prison.
The second petition was against Ambrosio. Ambrosio’s
residency was questioned because he was allegedly a
“green card holder,” i.e., a permanent resident of the
US, as evidenced by a certification to this effect from the
US Embassy.
Acting on the recommendations of its Law Department,
the Comelec en banc motu proprio issued two
resolutions granting the petitions against Anselmo and
Ambrosio.
Both Anselmo and Ambrosio filed separate petitions
with the Supreme Court assailing the resolutions
cancelling their respective CoCs. Both claimed that the
Comelec en bane acted with grave abuse of discretion
amounting to lack or excess of jurisdiction because the
petitions should have first been heard and resolved by
one of the Comelec’s Divisions.
Are Anselmo and Ambrosio correct?
Anselmo is incorrect. The rule is every quasi-judicial
matter must first be tackled by a division subject to appeal
by way of a Motion for Reconsideration to the COMELEC en
banc. In Jalosjos v. COMELEC (G.R. No. 205033, 18 Jun. 2013),
it was determined that a cancellation on the basis of
perpetual disqualification is a matter that can be takenjudicial notice of. When it cancels A CoC on that ground, it is
acting in performance of an administrative function and,
therefore, the rule in Sec. 3, Art. XI does not apply.
Ambrosio, on the other hand, is correct that the petition for
the cancellation of his CoC should have been first heard and
resolved by the Comelec Division. Cancellation proceedings
involve the COMELEC’s quasi-judicial functions. The
Constitution mandates the COMELEC, in the exercise of its
adjudicatory or quasi-judicial powers, to hear and decide
cases, first by division, and upon motion for
reconsideration, by the COMELEC en banc. (Bautista v.
COMELEC, G.R. Nos. 154796-97, 23 Oct. 2003)
Onofre, a natural born Filipino citizen, arrived in the
United States in 1985. In 1990, he married Salvacion, a
Mexican, and together they applied for and obtained
American citizenship in 2001. In 2015, the couple and
their children, Alfred, 21 years of age, Robert, 16, and
Marie, 14, who were all born in the U.S. returned to the
Philippines on June 1, 2015. On June 15, 2015,
informed that he could reacquire Philippine
citizenship without losing his American citizenship,
Onofre went home to the Philippines and took the oath
of allegiance prescribed under R.A. No. 9225.
Before the May 9, 2016 elections, Profundo’s lawyer
filed a Petition to Deny Due Course or to Cancel the
Certificate of Candidacy against Onofre. What grounds
can he raise in his Petition to support it? Explain your
answer. (2016 BAR)
The lawyer of Congressman Profundo can ask for the cancellation of the certificate of candidacy on the ground
that he did not execute an affidavit renouncing his American citizenship as required by Sec. 5(2) of R.A. No.
9225 and he lacked one-year residence in the Philippines
as required in by Sec. 6, Art. VI of the Constitution. (UPLC
Suggested Answers)
Gandang Bai filed her certificate of candidacy (COC)
for municipal mayor stating that she is eligible to run
for the said position. Pasyo Maagap, who also filed his
COC for the same position, filed a petition to deny due
course or cancel Bai’s COC under Section 78 of the Omnibus Election Code for material misrepresentation
as before Bai filed her COC, she had already been convicted of a crime involving moral turpitude. Hence,
she is disqualified perpetually from holding any public
office or from being elected to any public office. Before
the election, the COMELEC cancelled Bai’ s COC but her
motion for reconsideration (MR) remained pending
even after the election. Bai garnered the highest
number of votes followed by Pasyo Maagap, who took
his oath as Acting Mayor. Thereafter, the COMELEC
denied Bai’s MR and declared her disqualified for
running for Mayor. P. Maagap asked the Department of
Interior and Local Government Secretary to be allowed
to take his oath as permanent municipal mayor. This
request was opposed by Vice Mayor Umaasa, invoking
the rule on succession to the permanent vacancy in the Mayor’s office. Who between Pasyo Maagap and Vice
Mayor Umaasa has the right to occupy the position of
Mayor? Explain your answer. (
Pasyo Maagap would be entitled to occupy the position
of Mayor upon disqualification of Gandang Bai on the basis of the petition to deny due course or cancel her certificate
of candidacy under the provisions of Section 78 of the Omnibus Election Code.
The rule is that an ineligible candidate who receives the
highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in
the first place, but by virtue of the lack of material time or
any other intervening circumstances, his ineligibility might
not have been passed upon prior to election date.
Consequently, he may have had the opportunity to hold
himself out to the electorate as a legitimate and duly
qualified candidate. However, notwithstanding the
outcome of the elections, his ineligibility as a candidate
remains unchanged. Ineligibility does not only pertain to his
qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor
cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for
public office. (Maquiling v. COMELEC, GR No. 195649, 16 Apr.
2013)Accordingly, Gandang Bai being a non- candidate, the votes
cast in his favor should not have been counted. This leaves
Pasyo Maagap as the qualified candidate who obtained the
highest number of votes. Therefore, the rule on succession
under the Local Government Code will not apply
Despite lingering questions about his Filipino
citizenship and his one-year residence in the district,
Gabriel filed his certificate of candidacy for
congressman before the deadline set by law. His
opponent, Vito, hires you as lawyer to contest Gabriel’s
candidacy. (2010 BAR)
(a) Before election day, what action or actions will you
institute against Gabriel, and before which court,
commission or tribunal will you file such action/s?
Reasons.
will file a petition to cancel the certificate of candidacy
of Gabriel in the Commission on Elections because of the
false material representation that he is qualified to run for
congressman (Section 78 of the Omnibus Election Code;574
SCRA 787 [2008]). The question of the disqualification of
Gabriel cannot be raised before the House of
Representatives Electoral Tribunal because he is not yet a
member of the House of Representatives. (Aquino v.
COMELEC, GR No. 120265, 08 Sept. 1995)
If, during the pendency of such action / s but before
election day, Gabriel withdraws his certificate of
candidacy, can he be substituted as candidate? If so,
by whom and why? If not, why not?
If Gabriel withdraws, he may be substituted by a candidate nominated by his political party. Sec. 77 of the Omnibus Election Code states: “If after the last day for the
filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of
candidacy to replace the candidate who died, withdrew or
was disqualified.”
If the action/s instituted should be dismissed with
finality before the election, and Gabriel assumes
office after being proclaimed the winner in the
election, can the issue of his candidacy and/or
citizenship and residence still be questioned? If so,
what action or actions may be filed and where? If
not, why not?
The question of the citizenship and residence of Gabriel
can be questioned in the House of Representatives Electoral
Tribunal by filing a quo warranto case. Since it is within its
jurisdiction to decide the question of the qualification of
Gabriel, the decision of the Commission on Elections does
not constitute res judicata (Jalandoni v. Crespo, HRET Case
No. 01- 020, 06 Mar. 2003). Once a candidate for member of
the House of Representatives has been proclaimed, the
House of Representatives Electoral Tribunal acquires
jurisdiction over election contests relating to his
qualifications. (Guerrero v COMELEC, G.R. No. 137004, 26 July
2000)
How do you differentiate the petition filed under
Section 68 from the petition filed under Section 78,
both of the Omnibus Election Code?
A certificate of candidacy which is denied or cancelled
under Section 78 of the Omnibus Election Code would make
said certificate of candidacy void ab initio (which would
preclude the application of the rules on succession for purposes of replacing him upon his disqualification
because, up to that point of his disqualification, he shall be
considered merely as a de facto officer), unlike in the case
of disqualification under Section 68 of Omnibus Election
Code, which would give rise to the de jure officership of the
disqualified candidate up to the point of disqualification.
The other basic distinctions between petitions for
disqualification of candidates and petitions to reject or
cancel certificates of candidacy are follows- Under Section
68 of OEC, a candidate may be disqualified if he commits any
of the election offenses or “prohibited acts” specified
therein, of if he is permanent resident of or an immigrant to
a foreign country. On the other hand, under Section 78 of
the same law, a certificate of candidacy may be denied due
course or cancelled if found to be containing material
representations which are false and deliberately made.
These would include misrepresentations as to age,
residence, citizenship or non-possession of natural-born
status, registration as a votes, and eligibility, as when one,
although precluded from running for a fourth term because
of the three-term limit rule, claims to be nonetheless
qualified, or when one claims to be eligible despite his
disqualification on the bases of an accessory penalty
imposed upon him in connection with his conviction in a
criminal case.
A petition for disqualification under Section 68 may be filed
at any time after the last day for filing of the certificate of
candidacy but not later that the candidate’s proclamation
should he win in the elections, while a petition to deny due
course to or cancel a certificate of candidacy under Section
78 must be filed within 5 days prior to the last day for filing
of certificates of candidacy, but not later than 25 days from
the time of the filing of the certificate of candidacy.
While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, the person
whose certificate is cancelled or denied due course under
Section 78 is not treated as candidate at all. Thus, a
candidate disqualified under Section 68 may be validly
substituted but only by an official candidate of his
registered or accredited party.
Manuel was elected Mayor of the Municipality of
Tuba in the elections of 1992, 1995 and 1998. He fully
served his first two terms, and during his third term,
the municipality was converted into the component
City of Tuba. The said charter provided for a holdover
and so without interregnum Manuel went on to serve as
the Mayor of the City of Tuba.
In the 2001 elections, Manuel filed his certificate of
candidacy for City Mayor. He disclosed, though, that he
had already served for three consecutive terms as
elected Mayor when Tuba was still a municipality. He
also stated in his certificate of candidacy that he is
running for the position of Mayor for the first time now
that Tuba is a city. Reyes, an adversary, ran against
Manuel and petitioned that he be disqualified because
he had already served for three consecutive terms as Mayor. The petition was not timely acted upon, and
Manuel was proclaimed the winner with 20,000 votes
over the 10,000 votes received by Reyes as the only
other candidate. It was only after Manuel took his oath
and assumed office that the COMELEC ruled that he was
disqualified for having ran and served for three
consecutive terms. (2005 BAR)
(a) As lawyer of Manuel, present the possible
arguments to prevent his disqualification and
removal.
As lawyer of Manuel, I would argue that he should not be
disqualified and removed because he was a three-term
mayor of the municipality of Tuba, and, with its conversion
to a component city, the latter has a totally separate and
different corporate personality from that of the
municipality. Moreover, as a rule, in a representative
democracy, the people should be allowed freely to choose
those who will govern them. Having won the elections, the
choice of the people should be respected.
Assuming that Manuel is not an eligible candidate,
rebut Reyes’ claim that he should be proclaimed as
winner having received the next higher number of
votes.
Reyes cannot be proclaimed winner for receiving the
second highest number of votes. The Supreme Court has
consistently ruled that the fact that a plurality or a majority
of the votes are cast for an ineligible candidate at a popular
election, or that a candidate is later declared to be
disqualified to hold office, does not entitle the candidate
who garnered the second highest number of votes to be
declared elected. The same merely results in making the
winning candidate’s election a nullity. In the present case,
10,000 votes were cast for private respondent Reyes as
against the 20,000 votes cast for petitioner Manuel. The
second placer is obviously not the choice of the people in
this particular election. The permanent vacancy in the
contested office should be filled by succession. (Labo v.
COMELEC, G.R. No. 105111, 03 July 1992)
In the municipal mayoralty elections in 1980, the
candidate who obtained the highest number of votes
was subsequently declared to be disqualified as a
candidate and so ineligible for the office to which he
was elected. Would this fact entitle a competing
candidate who obtained the second highest number of
votes to ask and be proclaimed the winner of the
elective office? Reasons.
According to Trinidad v. COMELEC, (GR No. 135716, 23
Sept. 1999) if the candidate who obtained the highest
number of votes is disqualified, the candidate who obtained
the second highest number of votes cannot be proclaimed
the winner. Since he was not the choice of the people, he
cannot claim any right to the office.
However, the alleged “second-placer,” should be
proclaimed if the certificate of candidacy was void ab initio.
In short, the winner was never a candidate at all and all
votes were stray votes. Thus, the second-placer is the only
qualified candidate who actually garnered the highest
number of votes. (Tea v. COMELEC, G.R. No. 195229, 09 Oct.
2012)
During his third term, “A”, a Member of the House of
Representatives, was suspended from office for a
period of 60 days by his colleagues upon a vote of twothirds
of all the Members of the House. In the next
succeeding election, he filed his certificate of candidacy
for the same position. “B”, the opposing candidate, filed
an action for disqualification of “A” on the ground that
the latter’s, candidacy violated Section 7, Article VI of
the Constitution which provides that no Member of the
House of Representatives shall serve for more than
three consecutive terms. “A” answered that he was not
barred from running again for that position because his
service was interrupted by his 60-day suspension
which was involuntary. Can ‘A’, legally continue with his
candidacy or is he already barred? Why?
A cannot legally continue with his candidacy. He was
elected as Member of the House of Representatives for a
third term. This term should be included in the computation
of the term limits, even if “A” did not serve for a full term.
(Record of the Constitutional Commission, Vol. n, p. 592.) He
remained a Member of the House of Representatives even if
he was suspended.
In the May 1992 elections, Manuel Manalo and
Segundo Parate were elected as Mayor and Vice Mayor,
respectively. Upon the death of Manalo as incumbent
municipal mayor, Vice Mayor Segundo Parate
succeeded as mayor and served for the remaining
portion of the term of office. In the May 1995 election,
Segundo Parate ran for and won as mayor and then
served for the full term. In the May 1998 elections,
Parate ran for reelection as Mayor and won again. In the
May 2001 election, Segundo Parate filed his certificate
of candidacy for the same position of mayor, but his
rival mayoralty candidate sought his disqualification
alleging violation of the three-term limit for local
elective officials provided for in the Constitution and in
the Local Government Code. Decide whether the
disqualification case will prosper or not.
The disqualification case should be dismissed. As held in
Borja v. COMELEC (G.R. No. 133495, 03 Sept. 1998) in
computing the three-term limitation imposed upon elective
local officials, only the term for which he was elected to
should be considered. The term which he served as a result of succession should not be included. It is not enough that
the official has served three consecutive terms. He must
have been elected to the same position three consecutive
times.
Give three issues that can be properly raised and brought in a pre-proclamation contest.
According to Sec. 243 of the Omnibus Election Code, the
following issues can be properly raised:
a. The composition or proceedings of the board of
canvassers are illegal;
b. The canvassed election returns are incomplete,
contain material defects, approved to be tampered
with, or contain discrepancy in the same returns or
in other authenticated copies;
c. The election returns were prepared under duress,
threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and
d. Substitute or fraudulent returns in controverter
polling places were canvassed, the results of which
materially affected the standing of the aggrieved
candidate or candidates.
