Bar Q and A #36

a. Under Sec. 28 of the Electoral Reforms Law, proof that at least one voter in different precincts representing at least twenty per cent (20%) of the total precincts in any municipality, city or province was offered, promised or given money, valuable consideration or other expenditure by the relatives, leader or sympathizer of a candidate for the purpose of promoting the candidacy of such candidate, gives rise to a disputable presumption of conspiracy to bribe voters.

b. Under Sec. 28, if the proof affects at least 20% of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relates, this shall constitute a disputable presumption of the involvement of the candidate and of his principal campaign managers in each of the municipalities concerned, in the conspiracy.

Idem sonans literally means the same or similar sound. This principle is made manifest in one of the rules for the appreciation of ballots embodied in the Omnibus Election Code (Sec. 211, BP 881) stating that "A name or surname incorrectly written which when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor. Thus, if the name as spelled in the ballot, though different from the correct spelling thereof, conveys to the ears when pronounced according to the commonly accepted methods, a sound practically identical with the sound of the correct name as commonly pronounced, the name thus given is a sufficient designation of the person referred to. The question whether one name is idem sonans with another is not a question of spelling but of pronunciation (Mandac v. Samonte, 49 Phil. 284). Its application is aimed at realizing the objective of every election which is to obtain the expression of the voters will.

To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) A valid proclamation, (2) a proper oath, and (3) assumption of office (Reyes v. COMELEC, G.R. No. 207264, October 22, 2013). Once a winning candidate has been proclaimed and taken his oath, and assumed office as a Member of the House of Representatives, the jurisdiction of the Commission on Elections over the election contest ends, and the jurisdiction of the House of Representatives Electoral Tribunal begins (Vinzons-Charo v. COMELEC, G.R. No. 172131, April 2, 2007).

a. I 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,248 SCRA400 [1995]).

b. If Gabriel withdraws, he may be substituted by a candidate nominated by his political party. Section 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.”

c. 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, March 6, 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,336 SCRA 458 [2000]).

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, June 18, 2013), it was
determined that a cancellation on the basis of perpetual disqualification is a matter that can be taken judicial notice of. When it cancels A CoC on that ground, it is acting in performance of an administrative function and, therefore, the rule in Article XI, Section 3 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.

a. 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.

b. Manuel is not eligible to run as mayor of the city of Tuba. The 1987 Constitution specifically included an exception to the people's freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow Manuel to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Tuba, Manuel would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it (Latasa v. COMELEC, G.R. No. 154829, [2003]).

c. 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, [1992]).

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.