Elections: Certificates of Candidacy and Campaign Period

Certificates of Candidacy

WHO MAY FILE:

1. citizen
2. registered voter
3. read/write Filipino
4. 1-yr. residence

WHEN TO FILE: not later than the day before the date legally fixed for the beginning of the campaign period (90-45-15)

WHERE FILED: Comelec (5 legible copies)

HOW FILED: personally filed or by duly authorized representative

EFFECT OF FILING (Comelec Resolution No. 6520, Jan. 6, 2004; RA 9006)

• Prior to Reso. 6520, any elective official running for public office other than the one he is currently holding in permanent capacity is considered ipso facto resigned from his office upon filing of the certificate of candidacy. However, after the COMELEC Resolution was passed, elective officials are now no longer deemed resigned should they run for office
• RA 9006 repealed Sec. 67 but maintained Sec. 66 of the Omnibus Election Code so that now, only appointive officials running for elective office are deemed resigned upon filing of certificate of candidacy

Waiver of permanent resident status in a foreign country

Gayo vs. Verceles, G.R. No. 150477, Feb. 28, 2005
Verceles is running for mayor and was subsequently proclaimed as the winner in that election. Her proclamation was however questioned for the reason that she is a greencard holder and has not complied with the residence requirement.

Supreme Court held that when Verceles abandoned her “greencard holder” status when she surrendered her alien registration receipt card before the Immigration and Naturalization Service of the American Embassy in Manila prior to her filing for certificate of candidacy. Thus, when Verceles filed her certificate of candidacy, she was no longer disqualified to run as an elective official because of such waiver of permanent resident status in a foreign country.

Residence - imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention

ELEMENTS OF ACQUISITION OF NEW DOMICILE:

1. residence or bodily presence in the new locality
2. intention to remain there
3. intention to abandon the old domicile - animus manendi + animus non revertendi

NOTA BENE: The purpose to remain at the domicile of choice must be for an indefinitive period of time; change of residence must be voluntary; and residence at the place chosen for the new domicile must be actual.

En Masse Filipinization under the Philippine Bill 1902

Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004
This is a petition to deny due course or to cancel the certificate of candidacy of Fernando Poe Jr. (Ronald Allan Kelley Poe) on ground that he is not a natural-born citizen of the Philippines because his parents were foreigners: Bessie Kelley Poe (American) and Allan Poe (Spanish national, son of Lorenzo Pou who was a Spanish subject). It is their contention that FPJ, being an illegitimate child, follows the citizenship of his mother, who was an American.

The Supreme Court held that Lorenzo Pou would have benefited from the “en masse Filipinization” that the Philippine Bill had effected in 1902; that such citizenship, if acquired, would thereby extend to his son, Allan F. Poe. FPJ, having been born during the effectivity of 1953 Constitution, follows the citizenship of his father who is a Filipino citizen, the law not having made any distinction as to legitimacy of the child.

A beach house is not a place of residence

Tess Dumpit-Michelena vs. Boado, G.R. No. 163619-20, Nov. 17, 2005
Dumpit-Michelena is running for mayor in the municipality of Agoo, La Union. Her disqualification was sought on the claim that she is a resident and was a registered voter of Naguilian and not Agoo, La Union. Dumpit-Michelena countered that she already acquired a new domicile in Agoo when she purchased a residential lot there, designating a caretaker of her house. Supreme Court held that Dumpit-Michelena failed to comply with the 1-yr. residency requirement in the place where she intends to be elected.

REQUIREMENTS FOR A CHANGE OF DOMICILE:
(1) an actual removal or an actual change of domicile;
(2) a bona fide intention of abandoning the former place of residence and establishing a new one
(3) acts which correspond with the purpose

Dumpit-Michelena failed to establish that she has abandoned her former domicile. Evidence shows that her house in Agoo is beach house and a beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence. Moreover, her designation of a caretaker only shows that she does not regularly reside in the place.

DISQUALIFICATIONS (Sec. 68, BP 881)

1. given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions
2. committed acts of terrorism to enhance his candidacy
3. spent in his election campaign an amount in excess of that allowed by law
4. solicited, received, or made any prohibited contributions
5. permanent resident of or an immigrant to a foreign country, UNLESS he waives such status

Effect of disqualification: no proclamation of the second placer

Trinidad vs. COMELEC, 315 SCRA 175, G.R. No. 135716
Sunga and Trinidad are both running for mayor in Iguig, Cagayan. Trinidad won so Sunga filed a letter-complaint for disqualification against Trinidad, accusing him of using 3 local government vehicles in his campaign and committing acts of terrorism, threats, intimidation, and other forms of coercion. Sunga also moved that, on account of Trinidad’s disqualification, he be declared as Mayor. While case is pending final resolution, Trinidad’s mayoralty term has expired.

Supreme Court held that the issue has been rendered moot and academic by the expiration of petitioner’s challenged term of office. Also, Sunga cannot claim any right to the office even if Trinidad was disqualified for the reason that “to simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. xxx To allow the private respondent, a defeated and repudiated candidate, to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice.”

Petition to Deny Due Course or Cancel Certificate of Candidacy (Sec. 78, BP 881; Sec. 5 & 7, RA 6646)

WHO CAN FILE: any party

HOW: petition to deny due course or cancel certificate of candidacy under oath

WHEN: any time not later than 25 days from filing of certificate of candidacy

WHERE: COMELEC must decide the case not later than 15 days before election (period is not mandatory however)

EXCLUSIVE GROUND: material misrepresentation


What constitutes material misrepresentation

Salcedo II vs. COMELEC, 312 SCRA 447
Neptali Salcedo married Agnes Celiz. Without dissolving his first marriage, he married Ermelita Cacao. In the May 11, 1998 elections. Ermelita and Salcedo II both ran for mayor of Sara, Iloilo. Salcedo II filed a petition for cancellation of Cacao’s certificate of candidacy on ground of false representation because Ermelita, not being legally married to Neptali, still used the surname “Salcedo.”

The Supreme Court held that the material misrepresentation contemplated by sec. 78 refers to qualifications for elective office, such as citizenship, legal age, residence. The misrepresentation must be so grave that it would prevent the candidate from running, or if elected, from serving, or enough to prosecute him for violation of election laws.

False Representation - deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible to run for elective office; intention to deceive the electorate

ELEMENTS FALSE REPRESENTATION:

1. Materiality
2. Intention to mislead

REMEDIES AGAINST DISQUALIFIED CANDIDATES

1. Before Election (sec. 78) - petition to deny due course or cancel certificate of candidacy
2. After Election (sec. 253) - petition for quo warranto on ground of ineligibility or disloyalty to the Philippine Republic

Q: What is the effect if the petition to deny due course has been granted?
A: If it has already attained final judgment, the election of that candidate is suspended and the votes cast in his favor are not counted. However, if after the election is finished pending resolution of the case, the votes cast in his favor are counted but the COMELEC may suspend the proclamation.

Nuisance Candidate

- a candidate whose filing of the certificate of candidacy has been shown to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrated the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate (Sec. 69, BP 881)


WHO MAY FILE DISQUALIFICATION CASE AGAINST NUISANCE CANDIDATE:

1. Motu propio by the Comelec
2. Verified petition by any registered candidate

PROCEDURE (sec. 5, RA 6646)

1. file verified petition within 5 days from last day of filing of certificate of candidacy
2. upon receipt, within 3 days, COMELEC issues summons
3. verified answer within 3 days from receipt of summons
4. hearing (summary in character) - by COMELEC official who is a lawyer; RECOMMENDATION: within 5 days from submission of evidence; DECISION: within 5 days from receipt of recommendation
5. Final and executory after 5 days from receipt by parties of the decision, UNLESS stayed by Supreme Court
6. DISSEMINATION: within 24 hours through the fastest available means

Equal access to opportunity for public service is a privilege subject to limitations

Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004
Rev. Elly Velez Pamatong ran for president. COMELEC denied due course on ground that he is a nuisance candidate: he cannot wage a nationwide campaign and/or not nominated by a political party or not supported by a registered by a political party with a national constituency. Pamatong contended that his right to equal access to opportunity for public service was violated.

Supreme Court held that “equal access to opportunity for public service” is not a constitutional right but a privilege subject to limitations imposed by law. Sec. 26, Art. II neither bestows such a right nor elevates the privilege to an enforceable right. The aforesaid provision forms part of the “Declaration of Principles of State Policies,” which is generally considered non- self-executing and are merely guidelines for legislative or executive action, and not operative because in the absence of legislation, it lacks proper definition of its effective means and reach. As long as limitations are applied equally without discrimination, the equal access clause is not violated.

“The rationale is that the State has a compelling interest to ensure that its electoral exercises are rational, objective and orderly. The poll would be bogged by irrelevant minutae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in ‘their trips to the moon on gossamer wings.’”

Substitution

Sec. 77, BP 881: Candidates in case of death, disqualification or withdrawal of another – If after the last day for the filing of certificate 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. xxxx”

Q: Can independent candidates be substituted in any of the instances mentioned above?
A: While the law specifically mentions that candidates who are party members may be substituted, the law nevertheless does not expressly prohibit the substitution of independent candidates. The law being silent on the matter, this cannot be perceived as a prohibition.


Substitution is allowed in barangay elections

Rulloda vs. COMELEC, G.R. No. 154198, Jan. 20, 2003
Romeo Rolluda and Remegio Placido are contending candidates for barangay chairman. Romeo died and his wife (Betty) makes a letter-request to substitute her husband. Betty won but Remegio was declared the barangay captain because Betty’s votes were not counted on the ground that her substitution was invalid.

The Supreme Court held it is non sequitor to say that sec. 77 allows only substitution in partisan elections. It is Rolluda’s contention that barangay elections being non-partisan, substitution does not apply. But the Supreme Court said that this would be tantamount to ignoring the purpose of election laws which is to give effect to, rather than frustrate, the will of the voters. In case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot. The absence of provision governing substitution of candidates in barangay elections can’t be inferred as a prohibition.

Substitution not allowed when certificate was denied due course

Ong vs. Alegre, G.R. No. 163295, Jan. 23, 2006
Ong (incumbent) and Alegre are both running for mayor. Ong’s certificate of candidacy was denied due course on ground of violation of three-term rule. Thus, he was substituted by Romeo Ong. Was the substitution valid?

The Supreme Court held that “while there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under sec. 78 of the Code.

Expression unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of sec. 78 of the Code.”

NOTA BENE: A person without a valid certificate of candidacy cannot be considered as a candidate, much the same as one who has no certificate of candidacy. And because Ong is not a candidate, then he cannot be substituted because substitution presupposes that the person to be substituted is a candidate.

Campaign and Election Propaganda

Q: What is the campaign period?
A: For President, Vice-President and Senators, the period begins 90 days before the day of election. For Congress and other elective officials, it begins 45 days before the day of election. Violation of the period constitutes an election offense.

NOTA BENE:

• This presupposes that the person is already a candidate – i.e. he has filed his certificate of candidacy. But if the person has not yet filed his certificate of candidacy and has started campaigning for votes even though the campaign period has yet to start, this cannot be considered an election offense.
• Automated Election Law, or Republic Act 8436, provides that a person who has filed a certificate of candidacy is not a candidate until the campaign period starts.
• Penera vs. COMELEC, G.R. No. 181613, November 25, 2009: What the law (RA 8436) says is “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

Q: What is the importance of having a campaign period?
A: To provide the candidates with a chance to prepare for the election through partisan political activities that promote the election or defeat of a candidate.

Q: What are the limitations as to the manner or conduct of an election campaign?
A: Authorized expenses, observance of truth in advertising, and prohibited forms under Sec. 85, BP 881.

Q: Do these limitations run counter to freedom of expression?
A: Distinguish between the two kinds of limitation of freedom of expression. If the restriction is content-neutral, then the measure of the restriction is some government interest. If the restriction is content-based, then the measure of the restriction is the clear-and-present-danger rule.

Q: What are the limitations as to extent?
A: The amount of money you can spend for the campaign is limited. Each candidate is required to submit a sworn statement of expenses and contribution to the COMELEC within 30 days after the day of the election. If the candidate does not submit, sec. 111 of BP 881 shall stand (the candidate cannot enter into office)