Public Officers Flashcards
Public Office (Mechem)
The right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public.
Essential elements of a public office
- Created by the Constitution, law, or by authority of law.
- A delegation of some portion of the sovereign power.
- Powers and functions are defined by the Constitution, law, or legislative authority.
- Duties pertaining thereto are performed independently, without control of a superior power.
- Continuing and permanent in nature. [DE LEON]
vs. Public employment
- Originates from contract
- Obligations are imposed only on the person entering the contract
- Limited duration and specific in its object
- Duties are very specific
Modes of creation
- Constitution
- Statute
- Tribunal/body to which the power to create the office has been deegated
Public officer (RA 3019)
Elective and appointive officials and employees, permanent or temporary, classified or unclassified or exempt, receiving compensation (even if nominal) from the government.
Public officer (RPC)
Any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.
Modes of acquiring title
- Election
- Appointment
- Succession by operation of law
- Direct provision of law
Appointment as an executive function
EXCs:
- Congress appoints its own staff
- Consti vests power of appointment in another branch (Judiciary, Consti Commissions)
To whom can Congress vest appointment powers to?
Heads of depts, agencies, commissions, or boards (Sec. 16, Art. 7)
Congress limitation over President
- When concurring as the COA
- When exercising limited legislative power to prescribe qualifications to a given appointive office
Congress power over local chief execs
Congress may “provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units” (Sec. 3, Art. 10)
Designation vs. appointment
- Addtl duties upon an existing office; Already a set certain public office
- Limited powers; Comprehensive
- No security of tenure;
- When assuming this office, there is no abandonment of “prior” office
Permanent vs. temporary
- Includes regular and ad interim appointments; acting appointments
- Eligibility reqs: Must be eligible and qualified; In the absence of appropriate eligibles, an ineligible person may nonetheless be appointed
- Confirmation is required by CA; Not required
- Security of tenure; no such thing
- Lasts until lawful termination; Lasts until a permanent appointment issued to another, or the appointee is removed (EXC: Fixed-period appointments which may be revoked only for valid cause)
Temporary appointment
One made in an acting capacity; temporary in character and its terminability is at the pleasure of the appointing power
When are temporary appointments NOT allowed?
Members or Chairs of CSC, COMELEC or COA cannot be appointed in a temporary capacity ( Sec. 1(2), Art. IX-B, IX-C and IX-D)
Presidential appointments
1) His appointment with consent of CA:
(a) Heads of the executive departments;
(b) Ambassadors;
(c)Other public ministers and consuls;
(d) Officers of the armed forces from the rank of colonel or nava captain;
(e) Other officers whose appointments are vested in him by the Constitution;
2) All other gov’t officers whose appointments are not otherwise provided by law
3) Those the Pres. may be authorized by law to appoint
4) Those vested by Congress unto the PH – other officers lower in rank than the Pres
Presidential appointments that don’t need CA confirmation
- VP as a member of Cabinet (Sec. 3, Art. 7)
- SC and judges of lower court (Sec. 9, Art. 8)
- Ombudsman and deputies (Sec. 9, Art. 11)
What other appointments are vested in the PH by the Constitution?
- Chairmen and members of the Constitutional Commissions
- Regular members of JBC
Regular vs. Ad interim
- Congress is in session; Congress is in recess whether voluntary or compulsory
- Permanent nature
- Nomination –> Confirmation –> Commission issuance –> Acceptance; Nomination –> Commission issuance –> Acceptance –> Confirmation
- Takes oath upon confirmation of CA: Takes oath after appointment (subject to CA disapproval or “bypass”)
Are ad interim appointments to Consti Comms permanent and irrevocable?
YES. This doesn’t violate the prohibition against acting appointments
When does ad interim appointment end?
- Disapproval by CA
- Bypass AKA CA doesn’t act on it prior to the next adjournemtn of CA
- Revocation by President (unless prohibited by Consti like in members of Consti Comms)
Prohibition on midnight appointments (Sec. 15, Art. 7)
2 months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.
De Castro v. JBC
The midnight appointments ban does not apply to the Judiciary
Kida v. Senate
President may appoint OICs in ARMM pursuant to the authority granted in RA 10153
Valid, effective and complete appointment
(1) Authority to appoint and evidence of the exercise of the authority;
(2) Transmittal of the appointment paper and evidence of the transmittal;
(3) A vacant position at the time of appointment; and
(4) Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications.
Velicaria-Garafil v. Office of the President
An appointment letter was was transmitted to the MRO after the cut-off date, the appointment is unconstitutional.
Rule on acceptance
GEN: Can’t be compelled
EXC: When citizens are required, under conditions provided by law, to render personal military or civil service (Sec. 4, Art. 2)
Removal
Only (1) for cause and (2) with due process
EXC: Absolute nullity, fraud
Eligibility vs. qualification
- Quality of being legally fitted to be chosen
- Endowment/act which a person must do before occupying office
“Reasonable relation” rule
Congress can only prescribe qualifications germane to the position
Examples of prohibited qualifications
- A proviso which limits the choices of the appointing authority to only one eligible
- Designating an unqualified person
- Automatic transfer to a new office
- Requiring inclusion in a list
Time of possession of qualifications?
If time is unspecified:
- “holding of office”: Qualified at the time of commencement of term or induction into office
President and VP Qualifications (Sec. 2-3, Art. 7)
(1) Natural-born citizen
(2) Registered voter
(3) Able to read and write
(4) 40 years old on day of election
(5) Resident of the Philippines for at least 10 years immediately preceding election day
Senator (Sec. 3, Art. 6)
(1) Natural-born citizen
(2) 35 years old on election day
(3) Able to read and write
(4) Registered voter
(5) Resident of the Philippines for at least 2 years immediately preceding election day
HoR Rep (Sec. 6, Art. 7)
(1) Natural-born citizen
(2) 25 years old on election day
(3) Able to read and write
(4) Registered voter in district in which he shall be elected
(5) Resident thereof for not less than one year immediately preceding election day
SC and collegiate courts (Sec. 7(1), Art. 8)
(1) Natural born citizen
(2) At least 40
(3) 15 years or more as a judge or engaged in law practice
(4) Of proven Competence, Integrity, Probity and Independence
CSC (Art. 9-B)
(1) Natural-born
(2) 35 years at time of appointment
(3) Not a candidate in the election preceding
(4) With proven capacity for public administration
COMELEC (9-C)
(1) Natural-born
(2) 35 years at time of appointment
(3) College-degree
(4) Chairman + majority should be lawyers engaged in practice at least 10 years
CoA (Art. 9-D)
(1) Natural-born
(2) 35 years at time of appointment
(3) CPA with at least 10 years expi; OR Lawyer engaged in practice for at least 10 years
(4) Members cannot all belong to the same profession
(5) Was not a canddiate for any position in the preceding elections
When should one be a citizen?
Liberal: Upon proclamation and on start of term
EXC: Constitutional offices
Residency (Aquino v. COMELEC)
Domicile– place where a party actually or constructively has his permanent home
Domicile (Romualdez-Marcos v. COMELEC)
- Actual habitual residence
- Animus manendi (intent to permanently remain)
Political qualifications (EXCs)
- Electoral tribunals in HoR or Senate require proportational representation (Sec. 17, Art. 6)
- Party-list
- CoApp – proportional representation (Sec. 18, Art. 7)
- Vacancies in local Sanggunians require that the appointee come from the same political party as that of the vacated sanggu member
Effect of pardon upon disqualification to hold public office
GEN: Won’t restore
EXC: When the pardon expressly restores it
Constitutional disqualifications
- Losing candidates can’t be appointed to any gov’t office within 1 year after the election (Art. 9-B, Sec. 6)
- Elective officials can’t be appointed in any capacity to any public office/position unless they forfeit their seat (Art. 9-B, Sec. 7(1))
- Appointive officials can’t hold any other governmental position (EXC: Allowed by law or his position’s primary functions)
- Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines.
Civil Liberties Union v. Exec Sec
The prohibition in Sec. 13, Art. 7 does not apply to ALL officers of cabinet rank
EXC:
- Provided by consti (SoJ as ex officio member of jBC)
- Other ex officio positions
Sec. 13, Art. 7
The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
DQs on Legislative
- Can’t hold any other office in government, inc GOCCs or their subsidiaries
- Can’t be appointed to any office when such was created/its emoluments were increased during his term
DQs on Judiciary
- Shall not be designated to any agency performing quasi-judicial or administrative functions (Art. 8, Sec. 12)
DQs on Consti Comms
- Can’t hold any other office/employment during tenure (Sec. 2)
- Was not a candidate for the previous election
DQs on Ombudsman and Deputies
- Same as Consti Comms
- Disqualified to run for office in the succeeding election from their cessation from office
President’s spouse + relatives by C/A within the 4th civil degree
Cannot be appointed during President’s tenure as:
- Consti Comm members
- Ombudsman
- Secs, Undersec, Chairmen or heads of bureaus or offices, including GOCCs
Valid ex-officio holding
- The holding of the office is provided by law
- The holding is required by the primary functions of their position
- Held without additional compensation
Consecutive term limits
VP: 2
Senator: 2
HoR: 3
Elective local officials: 3
Private Practice
GEN: Prohibited during incumbency
EXC: (1) It’s authorized by Consti/law, and (2) the practice won’t conflict/tend to conflict with official functions
Nepotism
GEN: Civil Service Law prohibits those made in favor of the relative of:
- appointing authority
- recommending authority
- chief of bureau/office; or
- person exercising immediate supervision
*Doesn’t matter who is the appointing/recommending authority
EXC:
- employed in a confidential capacity
- teachers
- physicians
- AFP
Relative
Within the 3rd degree of C or A
Disqualified in Local Gov’t
- Final judgment (moral turpitude) or offense with 1 year or more imprisonment (MAX 2 years after serving)
- Removal due to admin case
- Final judgment for violation of oath of allegiance to PH
- Dual citizenship (AKA dual allegiance)
- Fugitive in criminal or non-poli cases here or abroad
- Permanent foreign residence or those who acquired the right to reside abroad
- Insane or feeble-minded
Dual citizenship vs. Dual allegiance
- Concurrent application of laws of 2 or more states –> a national of both
- A person simultaneously owes, by some positive act, loyalty to 2 or more states.
Ministerial
- Involves merely execution of a specific duty that arises from fixed and designated facts
- May be delegated (EXC: Prohibited by law, or law requires it be performed by the officer in person)
Discretionary
Acts that require the exercise of reason in the adaptation of means to an end + discretion in determining how or whether the act shall be done or the course pursued
- When the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature
- GEN: No delegation
- EXC: Substitution allowed by law
Mandatory
- Powers conferred are generally mandatory even if the language is permissive when they are for the benefit of the public or individuals
Permissive
- Those designed merely to secure order, uniformity, system, and dispatch in public business
Power of control
Power to manage, direct or govern, alter or modify or set aside what has been done and to substitute his judgment for the latter
Power of supervision
Mere oversight over an inferior body; does not include restraining authority
Scope of authority
- Those expressly conferred by law;
- Those incidental to powers granted; and
- Those necessarily implied
Doctrine of necessary implication
All powers necessary for the effective exercise of the express powers are deemed impliedly granted
Standard of diligence?
Reasonable skill and diligence
Duty to make public disclosure of SALN (Sec. 17, Art. 11)
Must accomplish and submit declarations under oath of their ALNs and financial and business interests inc those of their spouse and unmarried children under 18 in their household
Rights
- Incident to public office
- ## To exercise the powers and responsibilities of public office
Term vs. Tenure
- Period during which officer may claim to hold the office
- period which the officer actually holds office
Salary
May not be seized before being paid to him
Freedom of members of Congress from arrest and from being questioned
Senators or Members of House (in offenses punishable by not more than 6 years imprisonment) are privileged from arrest while Congress is in session
- Cannot be questioned or held liable in any other place for any speech or debate in the Congress or in any committee (Sec. 11, Art. 6)
Temporary employee
- NO security of tenure
Next-in-rank rule
One who is “next-in-rank” to a vacancy is given preferential consideration for promotion to a vacant position, but it does not necessarily follow that he alone and no one else can be appointed.
When is an employee entitled to indemnity?
- He was expressly/impliedly required to perform upon the public account
- Not manifestly illegal
- He does not know to be wrong
Rule on liability
GEN: Not liable for injuries sustained by another as a consequence of official done within the scope of his authority
GEN: Not civilly liable for acts done in the performance of official duties
EXC: Clear showing of bad faith, malice or negligence
Rule on liability for subordinates
GEN: Not civilly liable for acts done by him in good faith in the performance of his duties
EXC: Liable for wilful or negligent acts done by him which are contrary to law, morals, public policy, and good customs even if he acted under orders or instructions of his superiors.
Rule on local officials
Not exempt from liability for death or injury to persons or damage to property
Sec. 27, NCC
Right of any person to file an action for damages for material or moral loss he suffered because a public servant or employee refuses or neglects to perform his official duty without just cause.
This is without prejudice to any disciplinary administrative action that may be taken against the public official.
Art. 32, NCC
Damages when any public officer or employee, or any private individual, directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs:
Consti rights
No need for malice or bad faith
Criminal liability
The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability.
Art. 34, NCC
A member of a city or municipal police force refuses or fails to render aid or protection in case of danger to life or property:
Primary Liability for damages: Peace officer
Subsidiary Liabqility: The city or municipality
Liability on contracts
- Personally liable on contracts entered into if he acted without or exceeded his authority
Liability on Tort
Personally liable if he goes beyond the scope of his authority, or exceeds the powers conferred upon him by law
Three-fold Responsibility of Public Officers for violation of duty or for wrongful act or omission
Civil
Criminal
Administrative
Liability of Ministerial Officers
- Nonfeasance
- Misfeasance
- Malfeasance
Nonfeasance
Neglect or refusal to perform an act which is the officer’s legal obligation to perform
Misfeasance
Failure to use that degree of care, skill, and diligence required in the performance of official duty
Malfeasance
The doing, through ignorance, inattention or malice, of an act which he had no legal right to perform
Command Responsibility (Admin Code)
A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence or misfeasance of his subordinates
EXC: (1) Actually authorized by written order the act/misconduct complained of
EXC: President as commander-in-chief over AFP makes him a superior
There must be evidence of the superior’s own negligence
Preventive suspension
Disciplinary measure which is intended to enable the disciplinary authority to investigate charges against the respondent by preventing the latter from using his position or office to influence witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the case against him.
Kinds of Preventive Suspension
(1) Pending investigation; Charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal; NO COMPENSATION even if innocent unless suspension was unjustified
(2) Pending appeal; Penalty imposed is suspension or dismissal and, after review, the respondent is exonerated
How long is the admin investigation?
Single admin: 60 days
Several:90 days; otherwise, respondent is automatically reinstated; UNLESS there was delay caused by the respondent
Discipline over presidential appointee
Due notice and hearing by President
Discipline over elective officials
- President > Province, HUC, ICC
- Governor > CC, Municipality
- Mayor > Barangay
When can you impose preventive suspension?
- After joining of issues
- Evidence of guilt is strong
- Great probability that continuance in office would: influence the witnesses OR pose a threat to the safety and integrity of the records and evidence
Liability for backwages
- If unlawfully removed, he may recover
- “No work, no pay” does not apply if official was wrongfully prevented from entering office
- If dismissal was made in bad faith, superior office will be personally liable
- Max 5 years
Immunity of public officers
Applies to complaints filed against public officials for acts done in the performance of their duties.
EXCs:
- Acts that are unlawful and injurious to the rights of others
- Official is being sued in his personal capacity
- Suit to compel performance or restrain performance
State immunity
“King can do no wrong”
Presidential immunity from suit
General Rule: The President shall be immune from suit during his tenure. Exception: Impeachment complaint
De facto doctrine
A person admitted and sworn into office is deemed to be rightfully in such office UNLESS:
- Ousted by judicial declaration; or
- Admission is declared void
De facto officer
(1) Valid existing public office
(2) Acted as an officer for a length of time (actual physical possession)
(3) Under color of title and circumstances of reputation or acquiescence by public and public authorities
EFFECT
- Enough to afford a presumption of election or appointment; and
- Induce people (without inquiry) on the basis of the fact that he is the assumed officer, to submit or invoke his action
De facto officer’s color of title
Duties are exercised under any of the ff. circumstances:
(a) No known appointment or election but people are induced to suppose that he is the officer he assumes to be (Reputation or acquiescence)
(b) Possesses public office under color of a known and valid appointment or election, but he failed to conform to some precedent requirement or condition
(c) Possesses public office under color of a known and valid appointment or election BUT it is void bec:
(1) he is ineligible;
(2) electing/appointing body is not empowered to do such;
(3) his exercise was defective or irregular originating from his a or E; or
(4) public does not know of such ineligibility
(d) Possessed public office under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.
De jure v. De facto (Reqs)
- Office exists
- Legally qualified; Has color of right or general acquiescence
- Lawfully chosen
- Performs duties of such office according to law; Actually and physically possesses it in good faith
De jure v. De facto (Basis)
- He has lawful right/title
- Color of right, but he is not technically qualified to act in all points of law
De jure v. De facto (Ousting)
Cannot be ousted; Quo warranto
De jure v. De facto (Validity)
- Valid
- Valid until title is adjudged insufficient
De jure v. De facto (Compensation)
- Rightfully entitled;
- Conditionally entitled until de jure officer is declared
De facto vs. Intruder
- Becomes an officer under the aforementioned circumstances; Has no actual or apparent authority
Basis
- Color of right/title
- has none
Validity
- Valid until title is adjudged insufficient
- Void; acts may be impeached any time in any proceeding (EXC: Acts for so long creating a presumption of his right to act)
Compensation
- Conditionally entitled until de jure officer is declared
- Not entitled at all
Quo warranto
- Filed by the person claiming entitlement to the office or The Republic
- FIled within 1 year after cause of ouster
Possible penalties for de facto officer
- Usurping or unlawfully holding office
- Exercising the functions of public office without lawful right
- Ineligibility for the public office as required by law
Right to compensation for de facto officer
GEN: Cannot sue for ecovery of salary because his acts are void
EXC:
- When there is no de jure officer and he acted in good faith and had possession of the office and discharged duties thereto
Expiration of term/tenure
GEN: Upon expiry, rights and duties stop
EXC: Authorized by law to hold over
Compulsory Retirement
- Judiciary: 70
- Other gov’t officers and employees: 65
Resignation
(1) intention to relinquish a part of the term
(2) Act of relinquishment
(3) Acceptance by proper authority (either E/I)
Form of resignation when none prescribed
- Need not be in writing unless so required
- A written resignation is prima facie (but not conclusive) evidence of the intention to relinquish the office
When resignaton effective?
- As per the date specified in the tender
- If no date, then when the officer RECEIVES notice of acceptance of resignation
Revocation of resignation
- Can be validly withdrawn before the public official is notified of its acceptance
- Art. 238, RPC: Officer, before acceptance of his resignation, abandons his office to the detriment of public service is CRIMINALLY LIABLE
Who accepts resignation?
- Appointing authority
- Congress > Pres & VP
- House > Congress mems
- Pres > Gov., Vice Gov., Mayor, Vice-Mayor of HUC & ICC
- Governor > City Mayor, Vice-Mayor of CC, Municipal Mayor, Municipal Vice-Mayor
- Sanggu concerned > Sanggunian Members
- Municipal/City Mayors > Elective brgy. officials
Acceptance of an incompatible office
GEN: One who, while occupying one office, accepts another office incompatible with the first ipso facto vacates the first office.
EXC: (1) Ex officio, (2) If the public officer accepts a forbidden office, the holding of the second office is absolutely void
Forbidden office
When is an office incompatible?
- Conflict in such duties and functions, so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both.
- One is subordinate to another and is subject in some degree to its supervisory power
- Consti or law declares the incompatibility even if there is no inconsistency
Abandonment
Voluntary relinquishment of an office by the holder of all right, title, or claim thereto with the intention of not reclaiming it or terminating his possession and control thereof.
(1) Intention to abandon
(2) Overt act that carries the intention into effect
Abandonment vs. resignation
- Voluntary relinquishment via non-user; formal
Non-user: Neglect to use a privilege or a right or to exercise an easement or an office
AWOL RUles
- failure to return to service after the expiry of 1-year LOA without pay = automatic separation
- AWOL for at least 30 days = dropped after due notice
Removal
Ouster of an incumbent public officer before the expiration of his term
Modes of removal
- Appointment of another with the knowledge of the incumbent
- Transfer of office without consent = illegal removal
- Demotion to a lower position with lower compensation
Limitations on removal
- Security of tenure
- Removal not a bar to a finding of admin liability
- Removal without just cause or non-compliance with procedure = entitles officer to reinstatement with back salaries
President’s Removal Power
- Over non-career officers exercising purely exec functions whose tenure is not fixed by law (Cabinet), President may remove w/ or w/o cause
- Over those exercising quasi-legislative/judicial powers (SEC mems), only on grounds provided bu law
- Over constitutional officers removal by impeachment and judges of lower court, NO REMOVAL POWER
Impeachment
Method of national inquest into the conduct of public men
A criminal proceeding against a public officer before a quasi-judicial political court instituted by written accusation (articles of impeachment)
Max once within a year
Initiated via the act of filing of impeachment and having been referred to the House Committee on Justice (Francisco Jr. v. HOR)
Impeachable Officers
(1) President
(2) Vice-President
(3) Members of the Supreme Court
(4) Members of the Constitutional Commissions (5) Ombudsman
Grounds for impeachment
(1) Culpable violation of the Constitution
(2) Treason
(3) Bribery
(4) Graft and corruption
(5) Other high crimes, or
(6) Betrayal of public trust.
Procedure of impeachment
- Only House can initiate
- Senate sets as a court for trial
Abolition
- Intention to do away with it wholly and permanently
- Congress can abolish even during the term for an incumbent
- Valid abolition IS NOT removal
- No law can be passed reorganizing the Judiciary if it undermines security of tenure of its members
Requisites for Abolition
- Must be done in good faith
- Clear intent to do away with office
- Not for personal/political reasons
- Cannot be implemented contrary to law
Reorganization
Must be pursued in good faith
Abandonment equivalent to abolition
When a public official voluntarily accepts an appointment to an office newly created by law – which new office is incompatible with the former – he will be considered to have abandoned his former office.
EXC: The acceptance was due to the fact that the officer was constrainted because non-acceptance of the new appointment would affect public interest
Failure to assume elective office from proclamation
If fails within 6 months, office is considered vacant
EXC: Cause of the failure is something beyond his control
Recall
Removal prior to expiration on account of loss of confidence exercised directly by registered voters of an LGU
Career service
- Entrance based on merit and fitness determined by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions and security of tenure.
Non-career service
Entrance on bases other than those of the usual tests. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project (elective officials, Cabinet)
Requisites for career service
- Appoint according to merit and fitness, to be determined as far as practicable
- Competitive examination
Exceptions to competitive exam
- Policy determining
- Primarily confidential
- Highly Technical
Ombudsman
Investigate any act or omission of any public official, employee, office or agency which appears to be illegal, unjust, improper, or inefficient. This may be done by the Ombudsman on its own or upon complaint.
Direct any officer/office to perform and expedite any act, or stop, prevent and correct any abuse or impropriety
Direct officer concerned to take appropriate action and recommend their removal, suspension, etc.
Direct the furnishing of documents relating to disbursement of public funds or properties
Request any agency for assistance or information
Ombudsman’s disciplinary power
Over all E and A officials of the gov’t, its subdivisions, instrumentalities and agencies, Cabinet, local gov’t, GOCCs and their subsidiaries
- Shared with other disciplinary authorities
EXCs to Ombudsman’s disciplinary powr
- Those removable only by impeachment*
- Congress
- Judiciary
But can investigate
Ombudsman’s power to preventively suspend
- Charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty
- Charges would warrant removal from service; OR
- Continued stay may prejudice the case filed against him
- No need for prior notice and hearing
Length of Ombudsman preventive suspension
- Until case is terminated byt not more than 6 months
Sandiganbayan original jurisdiction
- Public officials and employees salary grade 27 or higher
- Violations of RA 3019 and 1379, RPC, other crimes
Ill-gotten wealth
The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel (for civil cases)
Penalty for plunder
Life imprisonment with perpetual absolute disqualification
Term limits
- All local elective (except brgy): 3 years
- No serving for more than 3 consecutive terms for the same position
- Voluntary renunciation for any length of time IS NOT an interruption in the continuity of his service for the full term elected
Term limits for brgy and SK
3 years
- Max 3 consecutive terms
Disqualified from voting (OAV)
- Lost Filipino citizenship as per PH law
- Expressly renounced PH citizenship and pledged allegiance to a foreign country
- Convicted of final judgment of an offense punishable by not less than 1 year OR Disloyalty
- Immigrant or permanent resident in the host country (EXC: Executes an affidavit)
- Previously declared insane or incompetent
Registration
Act of accomplishing and filing a sownr application for registration before an election officer where he resides and having the same be noted in the book of registered voters
Periods of no registration
- 120 days before a regular election
- 90 days before a special election
Who may register for physically disabled persons
- Relative within the 4th degree
- EO
- Any member of an accredited citizen’s arm
Disqualification from ERB
- Relation to each other or any incumbent city/municipal elective official within the 4th degree
Who may challenge the right to register?
Any
- voter
- candidate
- representative of a registered political party
How to challenge?
State in writing the ground for challenge and submit it under oath not later than the 2nd Monday of the month wherein it is scheduled for hearing.
It will be attached to the challenged application with proof of notice of hearing to both parties
Hearing for challenges to the right to register?
3rd Monday of the month with a decision to be rendered before the end of the month
What is the remedy in case of dis/approval of application for registration?
Petition for exclusion or inclusion with the MTC
Deactivation
Process of deactivating the registration of certain persons, removing their record from the book of voters.
Ground for deactivation
- Final judgment of imprisonment for not less than 1 year (EXC: plenary pardon/amnesty)
- Final judgment of a crime involving disloyalty to the government OR crime against national security
- Insane/incompetent
- Failed to vote in last 2 successive regular election
- Registratin was ordered excluded
- Loss of PH citizenship
Disloyalty to the government
- Rebellion
- Sedition
- Violation of the firearms law
Final judgment of not less than 1 year; reactivation
- Plenary pardon or amnesty
- Automatically upon passing of 5 years after service
Final judgment for crime involving disloyalty/national security; reactivation
- Automatically upon passing of 5 years after service
- Restored to full civil and political rights as per law (for crime involving nat’l security)
How to apply for reactivation
- Sworn application for reactivation via affidavit with the ground
- File anytime but following prohibitory period for reg
- EO will submit it to ERB
- If approved, the record will be included back in the book of voters
Posting of list of voters
- Office of EO
- Bulletin board of each city/municipal hall
When to file petition for Inclusion/Exclusion
- Except 105/75 days before; Except 100/65 days before
- 5 days after receipt of disapproval; Anytime not later than 210 days before election day
Political party
Organized group of persons pursuing the same ideology, political ideas or platforms of government
How to register as a party-list
- FIle with COMELEC not later than 90 days before election
- Provide your CBL, platform, program, officers, any other relevant agreements
- Publishing of the petition in at least 2 national newspapers of general circulation
Those that cannot register (Art. 9-C Sec. 2(5)) + Grounds for refusal
- Religious denoms and sects
- Violent or unlawful means
- Refuse to uphold and adhere to Consti
- Supported by foreign gov’ts/party/foundation/org whether directly/indirectly
- Is a foreign party/org
- Violates election law
- Untruthful statements in petition
-Ceased to exist for at least 1 year - Fails to participate in last 2 preceding elections
- Fails to gain the 2% requirements in the 2 preceding elections
When can a person be nominated as a party-list rep?
- Included in 1 list (only)
- Has given consent in writing
- Not a candidate for any other elective office
- NOt lost his election bid in the immediately preceding election
Is a change of name/alteration of a party-list rep allowed after submission?
GEN: NO.
EXC:
- Nominee dies
- Nominee withdraws
- Becomes incapacities
Lokin v. COMELEC
COMELEC can’t make a resolution that creates a new ground for change of name/alteration.
The withdrawal of the nomination by the political party is NOT A VALID GROUND for being ultra vires.
Parameters in the allocation of party-list seats (Banat v. COMELEC)
1) 20% allocation of all HoR membership goes to party-lists
2) 2% of total votes cast guarantees 1 seat
3) Remaining seats after allocation shall be distributed to all orgs (even those that failed to get 2%)
4) 3-seat cap
Requirement for national/regional parties
- DON’T need to organize along sectoral lines
- DON’T need to represent the marginalized and underrepresented sector
- Nominees must be bonafide members of such parties
- Won’t be disqualified if some of their nominees are disqualified (QLF: They have at least one nominee who does remain qualified)
Rules for political parties
- If they field candidates in legislative districts, they can only participate via their sectoral wing
Requirement for sectoral parties
- May either be “marginalized and underrepresented” or lacking in “well-defined political constituencies”
- MIN: Their principal advocacy pertains to the special interest and concerns of their sector
- Majority must be part of the sectoral grp they represent
- Nominee must represent the same sector OR must have a track record of advocacy for that sector
- Won’t be disqualified if some of their nominees are disqualified (QLF: They have at least one nominee who does remain qualified)
- Examples: Labor, peasant, fisherfolk, urban poor, indigenous, handicapped, veterans, OFWs
- Other examples for not well-defined constituencies: Professionals, elderly, women, youth
Senior Citizens’ Party-list v. COMELEC
Just because nominees of a party enter into a term-sharing agreement does not warrant their cancellation of their registration and accreditation SO LONG AS the agreement was not implemented
What is the effect of an elected party-list rep that changes affiliation?
If done during the term:
- Forfeits his seat
If done within 6 months before the election:
- Can’t be nominated for his new party
*Applies whether it’s a change in political party or sectoral affiliation
When does a person become a candidate?
- If you file your CoC within the prescribed period, you’re a candidate AT THE START OF THE CAMPAIGN PERIOD
Nature of qualification
- Continuing requirements
- Must be possessed for the whole duration of active tenure
Disqualifications to run (Sec. 68, OEC)
- Permanent resident or immigrant to a foreign country
- Given money/material consideration to influence, induce or corrupt voters or officials performing electoral functions
- Acts of terrorism to enhance candidacy
- Spent campaign money in excess of what’s allowed
- Solicited, received/made any prohibited contribution
- Violated OEC
Effect of disqualification under Sec. 68
- Won’t void the CoC but the candidate is prohibited from continuing as a candidate
Violations of the OEC that warrant disqualification
- Campaigned outside the campaign period and not pursuant to a political party nomination
- REmoved, destroyed, defaced lawful election propaganda
- Engaged in prohibited election propaganda
- Violated election propaganda thru mass media rules
- Coerced, intimidated, compelled or influenced any of his subs, members or employees to aid, campaign or vote for or against any candidate
- Threatened, intimidated, caused, inflicted or produced any violence, injury, punishment, damage, loss or disadvantage upon any person/their immediate family members/honor/property OR used fraud to compel, induce or prevent the registration of any voter or participation in any campaign, or casting of any vote or any promise of registration, campaign, vote or omission
- Unlawful electioneering
- Violated the prohibtion against release, disbursement or expenditure of public funds 45/30 days before a regular/special election
- Solicited votes/undertook propaganda on election day for/against any candidate or any political party within the polling place or within a 30m radius
Disqualifications to run (Sec. 12, OEC)
- Insane/incompetent
- Sentenced by final judgment for:
a) Subversion, insurrection, rebellion
b) Offense where he was sentenced to a penalty of more than 18 months of imprisonment
c) Crime involving moral turpitude
EXC
- Plenary pardon or amnesty
- Declaration by competent authority that the insanity/incompetence has been removed OR
- Expiration of 5 years after service of sentence
Disqualifications under Sec. 40, LGC
- Final judgment for offense involving:
a) Moral turpitude; or
b) Punishment of at least 1-year imprisonment - Admin case –> your removal
- Conviction by final judgment for violation of oath of allegiance
- Dual citizenship
- Fugitive from justice in criminal and non-political cases (wherever)
- Insane or feeble-minded
*Lasts for 2 years after service
What if you did not serve your sentence because you were granted probation?
Then you’re not disqualified because there’s no 2-year running period of prohibition
What is the effect when a person with dual citizenship runs for PH public office?
Filing of CoC is considered as an election of Filipino citizenship and renunciation of foreign citizenship (Mercado v. Manzano, 1999)
What to do if you’re a natural-born Filipino that reacquired or retained PH citizenship as per RA 9225?
- Meet the qualifications
- Make a personal and sworn renunciation of any and all foreign citizenship before any authorized public officer
Maquiling v. COMELEC
- The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. Further, The popular vote does not cure the ineligibility of a candidate.
- When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.
Poe-Llamanzares v. COMELEC
The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.
- To disqualify a candidate, there must be a declaration by a final judgment of a competent court that the candidate sought to be disqualified “is guilty of or found by the Commission to be suffering from any disqualification provided by law or the Constitution.”
- The facts of qualification must beforehand be established in a prior proceeding before an authority properly vested with jurisdiction. The prior determination of qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.
Who can file CoC?
- Candidate personally
- Duly authorized rep
When to file CoC?
- Starting from election period but not later than day before the start of the campaign period
Effect of filing 2 CoCs
Won’t be eligible for either
XC: Before expiry of filing of CoCs, the person
- Declares under oath the office they desire to be eligible in; and
- Cancel the CoC for the other office
Automatic resignation rule
For appointive offices: Ipso facto resigned from office upon filing
For elective offices: Not considered resigned upon filing
Quinto v. COMELEC
The candidate who is an incumbent appointed officer shall be deemed automatically resigned from his position upon his filing of his COC.
- Equal protection clause is not violated because there is a substantial distinction between appointive and elective offices
When is a candidate allowed to be substituted?
If after filing of CoC period, a candidate:
- dies
- withdraws; or
- is disqualified for any cause
Is substitution allowed for an independent candidate?
No (Recabo Jr. v. COMELEC)
When must the substitute file CoC?
Not later than mid-day of election day
Where to file substitution?
If the ground happened between pre-election day and mid-day of election day, file with:
- any Board of Election Inspector in the political subdivision where he is a candidate
- with COMELEC if it is a national position
Duty of COMELEC re: COCs (Sec. 78)
GEN: COMELEC has the ministerial duty to receive and acknowledge receipt of COCs so long as the certificates are:
- under oath
- contain all required data
- in the prescribed form
EXC: COMELEC may go beyond the face if:
- nuisance candidate
- petition to deny due course or cancel a CoC
What if COMELEC sees that the applicant is suffering from the accessory penalty of perpetual special disqualification because of a judgment of conviction?
COMELEC has legal duty to cancel the CoC
The final judgment of conviction is notice to COMELEC of their disqualification
Petition to declare a duly-registered candidate as a nuisance candidate (Sec. 5, RA 6646)
- motu proprio or verified petition
- refuse to give due course/cancel a CoC
IF CoC WAS FILED - to put the election process in mockery/disrepute; OR
- to cause confusion among the voters by the similarity of the names of the candidates; OR
- by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run and thus prevent a faithful determination of the true will of the electorate
When to file petition to declare nuisance candidate?
Within 5 days from last day of filing CoC
Petition to deny or cancel CoC
- Any person
- Any time not later than 25 days from the time of filing of the CoC
IF - There is any material representation as required in the CoC that is false
Elements of false material representation
- Materiality: Pertains to a material fact that affects the right of the candidate to run (refers to eligibility, qualification)
- Intent to Deceive: Deliberate attempt to mislead, misinform or hide a fact that would otherwise render a candidate ineligible
Who has jurisdiction over a petition to cancel CoC?
COMELEC in division
Rules if the candidate is disqualified
1) If DQ becomes final before election day – votes counted after are stray
2) If DQ is not yet final on election day – COMELEC proceeds with trial and hearing and if the evidence of guilt is strong, may order suspension of the proclamation
3) If the DQ is final after election day – Candidate is prevented from further serving in office
Rule for next to succeed in case of DQ adjudged after election
GEN: Can’t award the office to the next highest
EXC: When (1) the one who obtained the highest votes is DQ-ed and (2) the electorate was fully aware in fact and in law of the candidate’s DQ enough to bring it to the realm of notoriety but the electorate still chose to vote for the ineligible one.
Rule when COC is cancelled
Valid candidate with highest number of votes is proclaimed winner
Election campaign (partisan political activity)
An act designed to promote the election or defeat of a particular candidate or candidates to a public office
Who can’t campaign?
- Election inspection board members
- Civil service
- Military
Foreigners (juridical or natural)
Rule on premature campaigning
GEN: Any campaign outside the campaign period is prohibited; is an election offense
EXC: Political parties may hold conventions to nominate their candidates within 30 days before the start of the period of the filing
Prohibited campaigning days
Maundy Thurs
Good Friday
Eve of election day
Election day
Campaign periods
National: 90 days before election day
Local offices: 45 days before election day
Media rules
For national:
TV 120mins
Radio 180mins
For local posts
TV 60mins
Radio 90mins
Responsibilities of mass media entities
- (For broadcast) submit copies of their logs and certificates of performance
- Furnish copies of all contracts for ads and campaigning within 5 days after signing
Protection of media companies
No franchise or permit to operate shall be granted, issued, suspended or cancelled during election period
Other media rules
- Public media personalities that volunteer, are employed with or are retained by any candidate shall be DEEMED RESIGNED or TAKE A LOA from work during campaign period.
- No movie, cinematograph or docu shall be exhibited in any forum which: (1) portrays the life of the candidate or (2) is portrayed by the actor-candidate
- Airtime rules are applied on a per station basis (GMA v. COMELEC)
- Print ads: Max 1/4 page (broadsheet), 1/2 (tabloid) 3x a week per publication
Rules on exit polls (ABS-CBN v. COMELEC)
- Poll must be outside 50m from polling place
- Pollsters must wear distinctive clothing
- Pollsters mut inform voters that they may refuse to answer; and
- Results may be announced after closing of polls on election day
- Results must idenity the total number of respondents + places where they were taken
Rules for applying for rallies
- Applications are posted in a conspicuous place in the city/municipal building with the receipt acknowledged in writing
- Apps are acted upon in writing by a local authority within 3 days from filing; otherwise, deemed approved
- Only ground for denial: Prior approved application for the same purpose
- Appeals of denial go to the provincial election supervisor or to COMELEC
- Authorities must decide appeal within 48 hrs; will be final and executory
Contributions
- Gift or anything of value, or contract or promise to contribute regardless of being legally enforceable
- Made to influence the results of the elections
- INC: Use of facilities voluntarily donated
- EXCLUDES: Free service by individuals volunteering their time
Expenditure
Payment of money or anything of value, or contract, promise or agreement to make an an expenditure to influence election results
-INC: Use of facilities personally owned by candidate
Prohibited contributions from:
- From public/private financial institutions (EXC: IF the insti is in the business of lending money, the loan is made acc to law, and the loan is made in the ordinary course of business)
- Persons operating a PU or possessing any natural resource of the nation
- Persons with contracts to supply the gov’t with goods or services for construction or other works
- Grantees of franchises, incentives, etc. by the government including GOCCs
- Grantees within 1 year prior to the election of loans greater than P100K by the gov’t inc GOCCs
- Educational instis with grants of public founds amounting to P100k or more
- Those in civil service or AFP
-Foreigners and foreign corporations and governments
Prohibited fund-raising activities
- Dances
- Lotteries
- Cockfights
- Games
- Boxing bouts
- Bingo
- Beauty contests
- Entertainment or other performances
- For any person or organization (directly or indirectly) to solicit and/or accept from any candidate any gift, food, transpo, contribution or donation in cash/kind
(From start of election period including election day)
Prohibited donations
By candidate, spouse, relative within 2nd civil degree, campaign manager/agent/rep, treasurers, agents or reps of political parties
Prohibited whether directly or indirectly
- Donation (in cash/kind)
- Undertaking/contribution to construction or repair of roads, bridges, school buses, puericulture centers, medical places, churches, chapels, pavements (CATCH-ALL: For public use or use of any religious or civic organization)
EXC:
- Religious dues or contributions (regular)
- Periodic payment for scholarships and habitual school contributions already made before elections
Allowed election propaganda
- Written material not larger than (legal-sized)
- Letters with urging messages
- Posters (2x3 feet max)
- Streamers (3x8 feet) at rallies
- Paid ads
QLF: Need to legibly/audibly read “political ad paid for ___”
QLF: Donated ads must have the written acceptance of the candidate/party
Prohibited election propaganda
FOR FOREIGNERS
- Aid to any candidate/party (directly/indirectly)
- Take part/influence any election
- Contribute/make an expenditure in connection with the campaign
FOR ANY PERSON, PARTY, ORG DURING THE CAMPAIGN PERIOD
- Give/accept transpo, food or drink or things of value 5 hours before/after a public meeting, day before the election, and election day
-Give/contribute directly or indirectly money or things of value for such purpose
Expense limits
- Pres & VP: P10 for every voter
- Others: P3 for every voter in their constituency
- For independent: P5 for every voter
- For parties: P5 for every voter in their constituency
Obligation to file statement of contributions and expenditures
- File in duplicate with COMELEC: the itemized statement
- Within 30 days after election day
Failure to file statement of contributions
Cannot enter upon the duties of their office
Qualifications for an election inspector
- Good, moral character + irreproachable reputation
- Registered voter
- Never been convicted of election offense, or any crime punishably by more than 6 months, with no information pending against him for any election offense
- Speak, read and write English/local dialect
- At least 1 member should be an IT-capable person trained by DOST
Disqualifications for members of election inspectors
- Related within the 4th degree to any member of the BEI or to any candidate
- Engaged in partisan political activity or take part in the election except to discharge functions or vote
Board of election inspectors
Chairman (public school teacher)
Poll clerk (public school teacher)
2 members (repping accredited political parties)
Board of Canvassers
- Chairman (election supervisor/registrar)
- Vice-Chairman (Fiscal/municipal treasurer)
- Member (Superintendent/most senior district school supervisor)
Substitutes for Board of Canvassers
- Chairman: Ranking lawyer of COMELEC
- Vice-Chairman: Auditor, Registrar of Deeds, Clerk of Court, any other available appointive official
- Member: Same as for Vice-Chairman
Prohibitions on Board of Canvassers
- 4th civil degree to candidate or member of the board
- Cannot be detailed outside their official station or leave it without prior COMELEC authority from election period until proclamation
- No feigning of illness until proclamation; that’s an election offense
What happens after canvassing?
- Electronic transmission to COMELEC (en banc) as National BOC
- to Congress for Pres & VP directed to the Senate President
National Board of Canvassers for President and VP
Senate and HoR in joint public session
What happens after it reaches National BoC?
- Not later than 30 days after election day, Senate Pres. will open the certificates in joint public session
- Congress shall: canvass results + proclaim winners
When is a proclamation void
- Based on incomplete returns
- No complete canvass
Can there be partial proclamation? YES
COMELEC may summarily order proclamation of other winning candidates whose election is not affected
What if there’s a tie?
BOC will, by resolution, upon 5 days notice to all tied candidates, hold a special public meeting where the winner will be chosen via drawn lots
Proclamation of lone candidate
- For special election called to fill a vacancy
- Only 1 qualified candidate
EFFECT: He’ll be proclaimed elected without holding the special election
Election
Plurality of votes for
- a choice conditioned on plurality of valid votes; or
- valid constituency regardless of actual number of votes cast
Grounds for failure of election (Sec. 6, OEC)
- Election in any polling place was not held on the fixed date due to force majeure, violence, terrorism, fraud, or other analogous cases
- Election was suspended before the fixed hour for closing due to xxx
- After voting and during preparation and transmission of election returns/custody/canvass of the same, there was a failure to elect
When will the election continue?
On a date reasonably close to the date of the failed election BUT not later than 30 days after cessation of the cause for the failure
How to decide if an election has failed?
COMELEC sitting en banc with a majority vote
Requisites for failure of election
- Existence of a ground for failure
- The votes cast would affect election results
Pre-proclamation controversy
Questions re: proceedings of the board of canvassers
What may COMELEC do re: pre-proclamation cases?
May order:
- motu proprio/written petition
- partial/total suspension of the proclamation of any candidate; OR
- annul partially/totally any proclamation
Not covered by COMELEC jurisdiction over pre-proclamation cases
President, VP, Senator or Member of House
Pre-proclamation controversies
- Illegal composition/proceedings of the board of canvassers
- Election returns are: (1) Incomplete, (2) Defective materials, (3) Appear tampered with or falsified, (4) Discrepancies even if in other authentic copies
- Election returns were: (1) Prepared under duress, threats, coercion, intimidation or; (2) Obviously manufactured/not authentic
- Substituted/fraudulent returns were canvassed, the results of which materially affected the standing of the aggrieved candidate
- Manifest errors in the Certificates of Canvass or Election Returns
Illegal composition of BOC
- Any of the members do not possess legal qualifications and appointments
Illegal proceedings of BOC
Canvassing is a sham/mere ceremony wherein results are predetermined and manipulated as shown in any of the ff. circumstances:
- Precipitate canvassing
- Terrorism
- Lack of sufficient notice to BOC members
- Improper venue
Other issues and where to raise
- Appreciation of ballots – BEI at the precinct level
- Technical exam of signatures and thumbprints
- Prayer for re-opening of ballot boxes
- Padding of Registry List of Voters, massive fraud and terrorism
- Challenges to BEI
- Fraud, terrorism and other illegal electoral practices – Office of election contests
When to file Pre-proclamation controversy complaint?
(For illegal composition/proceedings) - immediately when the board begins to act as such
(For correction) - not later than 5 days following date of proclamation
Where to file Pre-proclamation controversy complaint?
BoC or COMELEC
When to file matters re: election returns and certificates of canvass?
BoC at the time the questioned return is presented for inclusion in the canvass
Procedure at BOC level for pre-proclamaton controversies
- BOC announces the fact of filing and ground/s raised
- BOC must give resolution within 24 hours
- If BOC is in favor, they will refer it to COMELEC for appropriate action
Procedure for appeal of an adverse resolution
- Notify BOC of their inention to appeal via a verbal, written and verified notice of appeal
- 48 hours from such notice, a Memorandum on appeal is submitted to the BOC
- BOC shall forward the entire records of the petition
- Petition will be submitted to COMELEC en banc
- COMELEC has 5 days to render decision on appeal
Procedure at COMELEC level for pre-proclamaton controversies
- Summons is sent to BOC to submit an answer within 48 hours
- COMELEC has 5 days to resolve the petition
Effect of filing pre-proclamation controversy
- Period to file election contest is suspended
- Right of prevailing party to the execution of COMELEC’s decision won’t bar losing party from filing election contest
- COMELEC may order proclamation of other winning candidates whose election is not affected
Effect of proclamation of winning candidate
GEN: Pre-proclamation controversy will no longer be viable after proclamation and assumption into office
EFFECT? Election protest
EXCs:
(1) Opponent is adjudged the true winner of the election by final judgment;
(2) Prevailing party is declared ineligible or disqualified by final judgment; or
(3) Incumbent is removed from office for cause
Effect of filing petition to annul/suspend proclamation
Filing suspends the running of the period to file an election protest
Election protest
Contest between the defeated and winning candidates on ground of:
- fraud
- irregularities in casting and counting
- preparation of returns
Issue: Who obtained the plurality of legal votes and is entitled to hold office?
Effect of filing election protest/petition for quo warranto
- Abandons the earlier pre-proclamation controversy
- COMELEC loses authority to look into the title of the protestee or validity of his proclamation
EXCs:
- Board of canvassers was improperly constituted
- Quo warranto is the improper remedy
- If a petition to annul a proclamation was the one actually filed
- The filing of election protest/quo warranto was expressly made without prejudice to pre-proclamation controversy or was made ad cautelam
- Proclamation was void
When to file election protest
- Within 10 days after proclamation of election results
- *To be decided within 15 days for brgy. officials
Jurisdiction over election contests
- COMELEC - elective regional, provincial and city officials
- RTC: Municipal officials
- MTC: Brgy. officials
Grounds for election protest
- Fraud
- Terrorism
- Irregularities
- Illegal acts committed before, during or after casting and counting
Quo warranto
Proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place.
Issue: Disloyalty or ineligibility of the winning candidate
When to file quo warranto
- Within 10 days after proclamation of election result
Jurisdiction for quo warranto
- COMELEC: Regional, provincial and city officials
- RTC: Municipal officials
- MTC: Brgy. officials
Grounds for quo warranto
- Ineligibility
- Disloyalty to the Republic
Execution pending appeal– when allowed?
- Public interest is involved/will of electorate
- Shortness of remaining portion of term
- Length of time that the contest was pending
Jurisdiction over election offenses
- COMELEC has exclusive jurisdiction
- May be validly delegated to Provincial Prosecutor or Ombudsman
- May go to fiscal/DoJ if COMELEC fails to act within 4 months
- Not the duty of COMELEC to gather proof in support of a complaint filed before it
Jurisdiction over criminal actions for violation of election laws
- RTC has exclusive original jurisdiction
- MTC can have jurisdiction if related to failure to register/vote
Preferential disposition of election offenses
- Resolved within 5 days from submission
- Election cases > all other cases (except habeus corpus)
Election offenses - Registration
- Failure of BEI to post list of voters in each precinct
- Change/alteration of a voter’s precinct assignment without express written consent of voter
Election offenses - CoC
- Continued misrepresentation, holding out as a disqualified candidate or a nuisance candidate
- Knowingly inducing/abetting such misrepresentation
- Coercing, bribing, or actually causing, inflicting… violence, injury, etc. to discourage any person/s from filing a CoC to eliminate ptential candidates from running in a special election
Election offenses - Capaign
- Use of special policemen, agents
- Use of armored land, water or aircraft
- Unlawful electioneering
- For policemen and provincial guards: Acting as bodyguards/security
- Removal, destruction or tampering of lawful election propaganda or preventing distribution
Election offenses - Voting
- Vote-buying and selling
- Conspiracy to bribe voters
- Coercion of subordinates to vote for/against any candidate
- Dismissal of employees for failing to vote for any candidate
- Fly voting
Disputable presumption of conspiracy to bribe voters
At least 1 voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered money, valuable consideration etc.
Election offenses - Counting
- Tampering, increasing, or erfusing to correct tampered votes after proper verification and hearing
- Electoral sabotage
- Refusal to issue to duly accredited watchers the certificate of votes cast
Election offenses - Canvassing
- For BOC: Failure to give notice of meeting to other members, candidates or parties
Acts of public officers
- New employees, positions, promotion or salary increases within election period
- Transfer within election period without prior approval of COMELEC
- Intervening in any partisan political activity
- Use of public funds for election campaign
- Illegal release of prisoners before/after election
- Release or expenditure of public funds during prohibited period
- Construction of public works “ “
- Suspension of elective local officials during election period without prior COMELEC approval
Election offenses - Coercion, intimidation, violence
- Coercion of election officials and employees
- Threats, intimidations, or other forms of coercion
- Use of undue influence
- Carrying deadly weapons in prohibited areas
- Carrying firearms outside residence or place of business
- Organization or maintenance of reaction forces, strike forces, or similar forces during election period
Election offenses - Other prohibitions
- Unauthorized printing of ballots and returns not under contract with COMELEC
- Wagering on election results
- Sale of intoxicating liquor on reg day, election day, or day before election
- Booths or stall within 30m of polling place
- Fairs, cockfights on election day
- Refusal to carry election mail during election period
- Discrimination in airtime sale
Penalties
Individuals
-Imprisonment 1-6 years withou probation
- Disqualification to hold public office
- No right of suffrage
Foreigner
- Impirsonment 1-6 years without probation
- Deportation after service of sencetence
For political party
- Fine
Prescription
5 years from commission
- If discovery made during proceedings, then prescription beings from when judgment becomes final and executory
Grant of transactional immunity
Any person guilty of vote buying/selling or conspiracy to bribe, may be exempt if they voluntarily give information and willingly testify on any violation
Prohibitions under RA 9369 (AES)
- Utilizing without authorization, tampering, etc. with official ballots, returns and certificates of canvass or electronic devices or their components
- Interfering with the installation of computer counting devices and processing of election data
- Gaining access to destroy computer data, programs, etc regardless of privacy classification
- Refusal of citizen’s arm to present their election return for perusal
- Presentation by citizen’s arm of tampered or spurious election results
- Failure to provide dominant majority, dominant minority, citizen’s arm of their copy of election returns
- Failure to post voter’s list within specified time, duration and designated location
Penalties under RA 9369
- Imprisonment 8 years 1 day to 12 years without parol
- Perpetual disqualification to hold public and any non-elective public office
- No right of suffrage
Electoral sabotage
(1)
- Tampering in the election of a national elective office that is voted upon nationwide
- Tampering adversely affected the election results
- (In any elective office)
(2)
- Tampering in a single election document or in transposition of the figure/results from 1 document to another and it exceeds 5k votes
- Adversely affects the true results of the election
(3)
- Any and all other forms of tampering where total votes involved exceed 10k votes.
*Penalty: life imprisonment
