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Elections and the Right to Vote Constitutional Basis ART. II, Sec.

1, 1987 Constitution: The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Q:Why make a distinction between democratic and republican? A: There are two kinds of democracy: direct democracy (pure) and indirect democracy (representative/republican). The Philippines follows both forms of democracy republican because the people express their sovereignty through the ballot, voting for candidates who will represent them in government, but also democratic because of initiative and referendum, which express the direct will of the people through plebiscite. People vs. San Juan, 22 SCRA 505 "That on or about the 12th day of November 1963 (election day), at around 10:00 o'clock in the morning at the polling place at the City Central School, Ormoc City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused CLAUDIA SAN JUAN and SEVERO SAN JUAN, conspiring, cooperating, confabulating and helping with one another, did then and there willfully, unlawfully, and feloniously with the use of force, prevent the complainant witness GENEROSA PILAPIL from exercising her right to freely enter the polling place of Precinct No. 1 in order to vote." Each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizens free choice. For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage is to inflict the ultimate indignity on the democratic process. As numerous as they are insidious are long-standing techniques of terror and intimidation that have been conceived by man in derogation of the right of suffrage which we have repeatedly and unqualifiedly condemned. When the legislature provided in section 133 of the Revised Election Code an explicit and unequivocal guarantee of a voters free access to the polling place, it could have intended no purpose other than to maintain inviolate the right to vote by safeguarding the voter against all manner ofunauthorized interference and travesty that surveyors of fear can devise. Every unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to cast his vote, strikes at the very heart of the right of suffrage. INFORMATION; VIOLATION OF SEC. 133 OF THE REVISED ELECTION CODE; SUFFICIENCY. Where the information implicitly averred that the complaint, a duly registered voter intent on exercising the right of suffrage, was at the "polling place of Precinct No. 1 in order to vote" and that the accused Claudia San Juan and Severo San Juan"willfully, unlawfully, and feloniously with the use of force prevented the complainant Generosa Pilapil from exercising her right to freely enter the polling place of Precinct No. 1 in order to vote," said information satisfies the requirements for the legal sufficiency for an indictment lodged under Sec. 133 of the Revised Election Code. 4.REVISED ELECTION CODE, SECTION 133 OF THE REVISED ELECTION CODE CONSTRUED. As numerous as they are insidious are long-standing techniques of terror and intimidation that have been conceived by man in derogation of the right of suffrage which we have repeatedly and unqualifiedly condemned. Sec. 133 of the Revised Election Code, an explicit and unequivocal guarantee of a voter's free access to enter the polling place, has no other purpose than to maintain inviolate the right to vote by safeguarding the voter against all manner of unauthorized interference and travesty that purveyors of fear can devise. Every unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to cast his vote, strikes at the very heart of the right of suffrage. Philosophical Bases Punos Separate Opinion, Macalintal vs. COMELEC, G.R. No. 157013, July 10, 2003 PLATO - rejected democracy as tyranny of the majority (numerical superiority) and supported the philosopher-king rule ARISTOTLE - democracy is desirable but only under certain conditions and of the upper class; will of the enlightened many

INDUSTRIAL REVOLUTION - social contract theory; the people exercise their sovereignty and creates a government to which they consent Synopsis: Petitioner Romulo B. Macalintal, a member of the Philippine Bar, sought to declare certain provisions of Republic Act No. 9189 entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes" as unconstitutional. Petitioner contended that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cited the ruling of the Court in Caasi vs. Court of Appeals to support his claim. In that case, the Court held that a "green card" holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines. The Supreme Court upheld the constitutionality of Section 5(d) of R.A. No. 9189. According to the Court, Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, under existing election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The Court, however, declared certain provisions of the law unconstitutional, namely, portions of Secs. 17.1, 19 and 25, as they trampled on the constitutional mandate of independence of the Commission on Elections. The Court also upheld Section 18.5 of R.A. No. 9189 with respect only to the authority given to the COMELEC to proclaim the winning candidates for Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The Court likewise upheld Sec. 5 (d) of the law. It also declared that pursuant to Sec. 30 of the law the rest of the provision of said law continues to be in full force and effect. ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE TO THE MANDATE OF THE CONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR VOTING BY QUALIFIED FILIPINOS ABROAD. As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon, the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of is framers through their debates in the constitutional convention. R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. 3.ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEING TO REMOVE DOUBT AS TO THE INAPPLICABILITY OF THE RESIDENCY REQUIREMENT IN SECTION 1. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residencein the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this country's leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could

impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. 4.ID.; ID.; ID.; SECTION 2 OF ARTICLE V OF THE CONSTITUTION IS AN EXCEPTION TO THE RESIDENCY REQUIREMENT FOUND IN SECTION 1 OF THE SAME ARTICLE. It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents' domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor. 5.ID.; ID.; ID.; EXECUTION OF REQUIRED AFFIDAVIT IS NOT THE ENABLING OR ENFRANCHISING ACT; AFFIDAVIT MERELY SERVES AS AN EXPLICIT EXPRESSION THAT QUALIFIED ABSENTEE HAD NOT IN FACT ABANDONED HIS OR HER DOMICILE OF ORIGIN. Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process. Which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified. As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognized as such in the host country" because immigration or permanent residence in another country implies renunciation of one's residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise." To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. 6.ID.; ID.; ID.; THE JURISPRUDENTIAL DECLARATION IN CAASI VS. COURT OF APPEALS FINDS NO APPLICATION TO THE PRESENT CASE BECAUSE IT DID NOT, FOR OBVIOUS REASONS, CONSIDER THE ABSENTEE VOTING RIGHTS OF FILIPINOS WHO ARE IMMIGRANTS AND PERMANENT RESIDENTS IN THEIR HOST COUNTRIES. The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no application to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host countries. In the advent ofThe Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage. It must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration," the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return "shall be cause for the removal" of their names "from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia." 7.ID.; ID.; ID.; ABSENTEE VOTING PRESUPPOSES THAT THE "QUALIFIED CITIZEN OF THE PHILIPPINES ABROAD" IS NOT PHYSICALLY PRESENT IN THE COUNTRY; REQUIRED AFFIDAVIT GIVES THE ABSENTEE AN OPPORTUNITY TO EXPRESS THAT HE HAS NOT ACTUALLY ABANDONED HIS DOMICILE IN THE PHILIPPINES. Contrary to petitioner's claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The

qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. 8.ID.; ID.; ID.; BY VESTING ITSELF WITH THE POWERS TO APPROVE, REVIEW, AMEND AND REVISE THE IMPLEMENTING RULES AND REGULATIONS FOR THE OVERSEAS ABSENTEE VOTING ACT OF 2003, CONGRESS WENT BEYOND THE SCOPE OF ITS CONSTITUTIONAL AUTHORITY AND TRAMPLED UPON THE CONSTITUTIONAL MANDATE OF INDEPENDENCE OF THE COMMISSION ON ELECTIONS. The Court has no general powers of supervision overCOMELEC which is an independent body "except those specifically granted by the Constitution," that is, to review its decisions, orders and rulings. In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation. Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of theCOMELEC. By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional. 9.ID.; ID.; ID.; PROVISION REQUIRING REVIEW AND APPROVAL BY JOINT CONGRESSIONAL OVERSIGHT COMMITTEE OF VOTING BY MAIL IN ANY COUNTRY AFTER THE 2004 ELECTIONS DECLARED UNCONSTITUTIONAL; SAID POWER UNDERMINES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS. Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, "only upon review and approval of the Joint Congressional Oversight Committee" found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC. ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE TO THE MANDATE OF THE CONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR VOTING BY QUALIFIED FILIPINOS ABROAD. As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon, the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of is framers through their debates in the constitutional convention. R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. 3.ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEING TO REMOVE DOUBT AS TO THE INAPPLICABILITY OF THE RESIDENCY REQUIREMENT IN SECTION 1. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residencein the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country,

their voices are marginal insofar as the choice of this country's leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. 4.ID.; ID.; ID.; SECTION 2 OF ARTICLE V OF THE CONSTITUTION IS AN EXCEPTION TO THE RESIDENCY REQUIREMENT FOUND IN SECTION 1 OF THE SAME ARTICLE. It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents' domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor. 5.ID.; ID.; ID.; EXECUTION OF REQUIRED AFFIDAVIT IS NOT THE ENABLING OR ENFRANCHISING ACT; AFFIDAVIT MERELY SERVES AS AN EXPLICIT EXPRESSION THAT QUALIFIED ABSENTEE HAD NOT IN FACT ABANDONED HIS OR HER DOMICILE OF ORIGIN. Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process. Which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified. As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognized as such in the host country" because immigration or permanent residence in another country implies renunciation of one's residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise." To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. 6.ID.; ID.; ID.; THE JURISPRUDENTIAL DECLARATION IN CAASI VS. COURT OF APPEALS FINDS NO APPLICATION TO THE PRESENT CASE BECAUSE IT DID NOT, FOR OBVIOUS REASONS, CONSIDER THE ABSENTEE VOTING RIGHTS OF FILIPINOS WHO ARE IMMIGRANTS AND PERMANENT RESIDENTS IN THEIR HOST COUNTRIES. The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no application to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host countries. In the advent ofThe Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage. It must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration," the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return "shall be cause for the removal" of their names "from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia." 7.ID.; ID.; ID.; ABSENTEE VOTING PRESUPPOSES THAT THE "QUALIFIED CITIZEN OF THE PHILIPPINES ABROAD" IS NOT PHYSICALLY PRESENT IN THE COUNTRY; REQUIRED AFFIDAVIT GIVES THE ABSENTEE AN OPPORTUNITY TO EXPRESS THAT HE

HAS NOT ACTUALLY ABANDONED HIS DOMICILE IN THE PHILIPPINES. Contrary to petitioner's claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. 8.ID.; ID.; ID.; BY VESTING ITSELF WITH THE POWERS TO APPROVE, REVIEW, AMEND AND REVISE THE IMPLEMENTING RULES AND REGULATIONS FOR THE OVERSEAS ABSENTEE VOTING ACT OF 2003, CONGRESS WENT BEYOND THE SCOPE OF ITS CONSTITUTIONAL AUTHORITY AND TRAMPLED UPON THE CONSTITUTIONAL MANDATE OF INDEPENDENCE OF THE COMMISSION ON ELECTIONS. The Court has no general powers of supervision overCOMELEC which is an independent body "except those specifically granted by the Constitution," that is, to review its decisions, orders and rulings. In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation. Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of theCOMELEC. By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional. 9.ID.; ID.; ID.; PROVISION REQUIRING REVIEW AND APPROVAL BY JOINT CONGRESSIONAL OVERSIGHT COMMITTEE OF VOTING BY MAIL IN ANY COUNTRY AFTER THE 2004 ELECTIONS DECLARED UNCONSTITUTIONAL; SAID POWER UNDERMINES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS. Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, "only upon review and approval of the Joint Congressional Oversight Committee" found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC. CARPIO, J.: concurring The case before this Court is historic and momentous. Historic because the right of suffrage, which through the centuries painstakingly evolved into universal right, 1 stands at the crossroads in this country. Should the right of suffrage continue its march forward and reach overseas Filipinos, or should this Court turn back this historic march here at our gates? Momentous because the core issue is the enfranchisement or disenfranchisement of some 7 million overseas Filipinos. The annual contribution of these overseas Filipinos to the national economy, in terms of hard-earned foreign exchange remitted through the banking system, equals almost 50 percent of the country's national budget. 2 The total remittances, recorded and unrecorded, of overseas Filipinos may even reach 18 percent of GNP, almost the same percentage that agriculture at 20 percent contributes to the GNP. 3 The nation has hailed the overseas Filipinos as the modern-day heroes and saviors of the economy. Their blood, toil, tears and sweat have propped up the Philippine peso through all the recurring financial crises that have battered the nation. Although scattered in foreign lands across the globe, these overseas Filipinos keep abreast with developments in the Philippines through the Internet, 4 cable and satellite TV, and even texting. In recognition of the immense contribution of overseas Filipinos to the nation, the framers of the 1987 Constitution introduced the absentee voting system, novel in this country, purposely to enfranchise the overseas Filipinos. Commissioner Blas Ople, the

former Minister of Labor who started deploying abroad large numbers of Filipino workers, triggered the introduction of the absentee voting with this discourse during the deliberations of the Constitutional Commission: MR. OPLE: . . . In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of theCommission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage to their countries of destination by the residential requirement in Section 1 which says: Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. xxx xxx xxx It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time. 5 (Emphasis and italics supplied) From the start, the framers of the Constitution knew that the absentee voting system for overseas Filipinos would have to be an exception to the double residency requirement in Section 1, Article V of the Constitution. This was the basic premise for introducing an express provision on absentee voting in the Constitution. Unless there is such an exception in the Constitution itself, overseas Filipinos could never vote as absentee voters in view of the double residency requirement in Section 1. Because of this double residency requirement, Congress could not enfranchise through ordinary legislation overseas Filipinos who do not comply with the double residency requirement. Thus, the framers of the Constitution, by an overwhelming vote of 28 in favor and only one against, approved Section 2, Article V of the Constitution, as follows: SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. (Italics supplied) After sixteen long years of debates, Congress finally enacted RA No. 9189 (the Overseas Absentee Voting Act of 2003),precisely to implement the constitutional mandate to enfranchise overseas Filipinos. Petitioner now asks the Court to strike down this law as unconstitutional mainly because it enfranchises overseas Filipinos who do not comply with the double residency requirement in Section 1, Article V of the 1987 Constitution, as follows: SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Italics supplied) Like the 1973 Constitution, Section 1, Article V of the 1987 Constitution imposes a double residency requirement before a Filipino 18 years or over may exercise the right to vote, namely: (1) one year residence in the Philippines; and (2) six months residence in the locality in the Philippines where he proposes to vote. The threshold issue is whether overseas Filipinos should comply with the double residency requirement in Section 1 of Article V to vote under the absentee voting system in Section 2 of the same Article. Stated another way, the issue is whether overseas Filipinos, many of whom are not registered voters in the Philippines, should come home twice to the Philippines just so they could vote in a foreign country as absentee Filipino voters. The first time they should come home is one year before the elections to establish residence in the Philippines. The second time is six months before the elections to establish residence in the locality in the Philippines where they propose to vote. Did the framers of the 1987 Constitution intend to inflict on overseas Filipinos such a burdensome requirement as an essential feature of the absentee voting system in Section 2 of Article V? To require absentee voters to comply with the double

residency requirement is to impose an impractical and even an impossible condition to the exercise of the constitutional right to vote. In the first place, the second residency requirement of establishing residence in a locality in the Philippines where the voters propose to vote is impossible to comply since overseas Filipinos will obviously not vote in any locality in the Philippines. Imposing the double residency requirement makes the absentee voting an empty right of overseas Filipinos. Certainly, the wise framers of the Constitution were incapable of such absurd scheme. If the framers of the Constitution did not intend such an absurd requirement, should this Court now impose such absurdity on overseas Filipinos? How many overseas Filipinos would comply with the double residency requirement just to vote in Presidential and Senatorial elections? How much will overseas Filipinos spend just to come home twice within 12 months just so they could vote when they go back abroad? The concept of absentee voting negates a residency requirement in the country of citizenship of the voter. By definition, an absentee voter is a non-resident voter. Obviously, the double residency requirement in Section 1 of Article V applies only to resident or non-absentee Filipino voters. To impose the double residency requirement on absentee Filipino voters is an egregious anomaly for it will require absentee Filipino voters to comply with the same residency requirement imposed on resident or non-absentee Filipino voters. If absentee Filipino voters are required to reside in the Philippines just like resident or non-absentee Filipino voters, why create an absentee voting system for overseas Filipinos in the first place? Applying the double residency requirement on absentee voters will render the provision on absentee voting in Section 2 a surplusage, a constitutional mandate devoid of meaning. Even without the absentee voting provision in Section 1, Congress can validly enact a law allowing resident or non-absentee Filipino voters those who comply with the double residency requirement to vote abroad in Philippine embassies or consulates. There is no constitutional prohibition on registered Filipino voters who comply with the double residency requirement to cast their ballots at a Philippine embassy or consulate abroad where they happen to be on election day. If the absentee voting system in Section 2 were for the benefit only of resident or non-absentee Filipinos, then there would be no need to provide for it in the Constitution. The framers of the 1987 Constitution specifically introduced the absentee voting provision in Section 2 precisely to enfranchise overseas Filipinos who do not comply with the double residency requirement in Section 1. Without the absentee voting provision in Section 2, Congress could not validly enact a law enfranchising overseas Filipinos who do not comply with the double residency requirement. As succinctly explained by Commissioner Christian Monsod during the deliberations in the Constitutional Commission: MR. MONSOD: . . . The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest. 6 Evidently, the framers of the Constitution intended the absentee voting provision as an exception to the double residency requirement. The question of how a Filipino, who has become a permanent resident or immigrant in a foreign country, may reacquire his domicile or residence in the Philippines is a matter for ordinary legislation. The reacquisition of the Philippine domicile or residence that a Filipino had lost is within the power of Congress to legislate. The Constitution does not define what domicile or residence means. There is also no constitutional prohibition against the enactment of legislation prescribing the reacquisition of domicile or residence in the Philippines, just as there is no constitutional prohibition against the enactment of legislation prescribing the reacquisition of Philippine citizenship. Thus, RA No. 8171 7 allows a former natural-born Filipino who became a foreigner to reacquire Philippine citizenship by filing a simplified administrative petition and taking an oath of allegiance to the Philippines. Section 5(d) of RA No. 9189, which prescribes the reacquisition of residence by a Filipino through the execution of an affidavit stating he is resuming residence in the Philippines, is similarly well within the power of Congress to enact and is thus constitutional. While the absentee voting system is new in this country, it is well established in other countries. In the United States, all U.S. citizens 18 years or over who reside outside the United States during an election are eligible to vote as absentee voters. 8 The trend in the United States is to allow "no-excuse" absentee voting, 9 that is, a qualified or registered voter may avail of absentee voting for any reason. Absentee voting is understood in other jurisdictions as voting by a qualified or registered voter without anyresidency requirement. In the present case, petitioner wants a double residency requirement imposed on absentee Filipino voters. The right of suffrage is the cornerstone of a representative government like that established in the 1987 Constitution. A representative government is legitimate when those represented elect their representatives in government. The consent of the governed is what stamps legitimacy on those who govern. This consent is expressed through the right of suffrage. It is a precious right for which many have fought and died so that others may freely exercise it. A government that denies such right on flimsy or meaningless grounds does so at its peril.

The International Covenant on Civil and Political Rights, to which the Philippines is a signatory, requires the Philippines to respect the people's right of suffrage "without unreasonable restrictions." Thus, Article 25 of the Covenant provides: Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions; (a)To take part in the conduct of public affairs, directly or through freely chosen representatives; (b)To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrageand shall be held by secret ballot, guaranteeing the free expression of the will of the electors; xxx xxx xxx. (Emphasis and italics supplied) The Philippines is duty bound under international law to comply in good faith with its treaty obligations under the Covenant. To require overseas Filipinos to return to the Philippines twice within 12 months so they may vote abroad as absentee voters is plainly an unreasonable restriction outlawed by the Covenant. When the framers of the Constitution introduced absentee voting in Section 2 of Article V, they were aware of the country's obligations under the Covenant. In their discussions on the death penalty, human rights and the Bill of Rights, the framers of the Constitution often referred to the country's obligations under the Covenant. 10 It is inconceivable that the framers intended overseas Filipinos to comply with the double residency requirement, an unreasonable restriction that would patently violate Article 25 of the Covenant and practically negate the overseas Filipinos' right of suffrage. There are some 40 countries in the world, including our Asean neighbors Indonesia and Thailand, which grant their overseas citizens the right to vote while residing abroad. 11 The inexorable direction of history is to bestow on every person the right to vote wherever he may be in this global village. Modern technology and telecommunications are making this happen even now. 12 Those who insist on the double residency requirement as an essential condition for absentee voting by overseas Filipinos are turning back in vain the clock of history. The framers of the Constitution expressly mandated Congress to enact an absentee voting law to enfranchise overseas Filipinos. Congress has enacted such a law after a long and difficult struggle by overseas Filipinos who patiently waited for 16 years for the enactment of the law. That struggle is now part of the world history of the evolution of the right of suffrage as a universal right. No frivolous, absurd or impractical conditions should stand in the way of enfranchising overseas Filipinos whose contribution to the national economy is immeasurable. Like the framers of the 1987 Constitution and the members of Congress, I vote to enfranchise our 7 million overseas Filipinos. This is an explicit constitutional mandate that the Court, like Congress, must honor and respect. I therefore concur entirely with the ponencia of Justice Ma. Alicia Austria-Martinez.

documentation as well as in the canvassing of their results. Thirteen senators were proclaimed from the said election with the 13th placer to serve that of the remaining term of Sen. Guingona, who vacated a seat in the senate. Petitioners sought for the nullification of the special election and, consequently, the declaration of the 13th elected senator. Issue: 1Whether or not Court had jurisdiction. 2Whether or not the petition was moot. 3Whether or not petioners had locus standi. 4Whether a Special Election for a Single, Three-Year Term Senatorial Seat was Validly Held on 14 May 2001 RULING: On the issue of jurisdiction, Court had jurisdiction because what petitioners were questioning was the validity of the special election on 14 May 2001 in which Honasan was elected and not to determine Honasans right in the exercise of his office as Senator proper under a quo warranto. On the issue of mootness, it was held that courts will decide a question otherwise moot if it is capable of repetition yet evading review. On the issue of locus standi, the court had relaxed the requirement on standing and exercised our discretion to give due course to voters suits involving the right of suffrage, considering that the issue raised in this petition is likely to arise again On the VAlidity of the Election, the Court held that the May 14, 2001 Election was valid. The Court held that COMELECs Failure to Give Notice of the Time of the Special Election as required under RA 6645, as amended, did Not Negate the Calling of such Election. Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding regular election. The law charges the voters with knowledge of this statutory notice and COMELECs failure to give the additional notice did not negate the calling of such special election, much less invalidate it. Further, there was No Proof that COMELECs Failure to Give Notice of the Office to be Filled and the Manner of Determining the Winner in the Special Election Misled Voters. IT could not be said that the voters were not informed since there had been other accessible information resources. Finally, the Court held that unless there had been a patent showing of grave abuse of discretion, the Court will not interfere with the affairs and conduct of the Comelec. ELEMENTS OF DOMICILE: 1. Physical presence 2. Animus manendi (intent to return permanently) Six months residence in the place where one intends to vote - refers to temporary domicile PURPOSE OF 6-MONTH RESIDENCY: Determine the place where the voter will register Determine the place where voter will vote CLASSES OF DOMICILE: 1. Domicile of Origin - place of birth 2. Domicile of Choice - replace the domicile of origin 3. Domicile by Operation of Law - applies to infants, incompetents and other persons under disabilities that prevent them from acquiring a domicile of choice Electoral System - free and open party system; distinguished from a multi-party system because in free and open party system, a unicameral or bicameral system is possible (ART. IX (c) (6), Sec. 6, 1987 Constitution) OTHER MODES OF DEMOCRACY

Who May Exercise the Right to Vote ART. V, Sec. 1, 1987 Constitution: Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Qualifications Punos Dissenting Opinion, Tolentino v. COMELEC, G.R. No. 148334, Jan. 21, 2004 Citizenship - Suffrage is a political right appertaining to citizenship; reserved only to Filipinos whose allegiance to the country are undivided; each individual qualified to vote is a particle of popular sovereignty Age (18 years) - Voting is an act of choice and involves prescience; familiarity and maturity Residence - For the vote to be more meaningful, more than a passing acquaintance with the countrys problems and prospects is required One year residence in the Philippines - refers to domicile, the place to which whenever absent for business or for pleasure, one intends to return FACTS: Petitioners assailed the manner by which the simultaneous regular and special elections of 2001 were conducted by the COMELEC.Petitioners contend that, if held simultaneously, a special and a regular election must be distinguished in the

Plebiscite - a system by which the people exercise their sovereignty by approving or rejecting any amendments or revisions of the Constitution prepared by the legislative Initiative - power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose REQUISITES FOR AMENDMENTS TO THE CONSTITUTION BY INITIATIVE: 1. The people must author and thus sign the entire proposal 2. As an initiative upon a petition, the proposal must be embodied in a petition Referendum - power of the electorate to approve or reject legislation Amendment - changing a few provisions of the Constitution WHO MAY AMEND THE CONSTITUTION: 1. Constitutional convention 2. Constitutional assembly (Congress) 3. People on Initiative Revision - a total overhaul of the Constitution; changing the substance Peoples initiative: the amendment must be directly proposed by the people

2. 3. 4.

not otherwise disqualified by law 1-yr. Residence in the Philippines 6-mo. Residence in the place where one will vote

DISQUALIFICATIONS: 1. Sentenced by final judgment to suffer imprisonment of not less than 1 yr. (Auto-reacquire right to register upon expiration of 5 yrs. after service) 2. Sentenced by final judgment of crime involving disloyalty to the duly constituted government (rebellion, sedition, violation of firearms laws, crimes against national security, etc.; auto-reacquire upon expiration of 5 yrs. after service) 3. Insane or incompetent person Challenges to Right to Register (sec. 18, RA 8189) Q: Are there limitations to a persons right to register? A: Yes. The right to register to vote is not an absolute right but more of a privilege with limitations imposed by law. The COMELEC may motu propio or upon application of any voter challenging the right to register deny a persons registration application. The Court (MTC), through inclusion or exclusion proceedings, may also limit a persons right to register. WHO CAN CHALLENGE: any voter, candidate or representative of a registered political party WHAT: challenge to right to register in writing, under oath, attached to the application together with proof of notice of hearing to the challenger and applicant

Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006 (read digest) Exclusion and Inclusion Proceedings (Sec. 33) An initiative petition is filed to change the 1987 Constitution, among such proposed changes is to shift the present BicameralPresidential system to Unicameral-Parliamentary form of government. The Supreme Court denied the petition on ground of failure to comply with the basic requirements of the Constitution for conducting a peoples initiative: the amendment must be directly proposed by the people through initiative upon a petition. Clearly, the framers of the Constitution intended that the draft of the proposed constitutional amendment should be ready and shown to the people before they sign such proposal. xxx The framers also envisioned that the people should sign on the proposal itself because the proponents must prepare thatproposal and pass it around for signature. 2 ELEMENTS: (1) The people must author and thus sign the entire proposal. (2) As an initiative upon a petition, the proposal must be embodied in a petition. xxx Thus, an amendment is directly proposed by the people through initiative upon a petition only if the people sign on a petition that contains the full text of the proposed amendments. ELECTION PROCESS AND/OR PROCEEDINGS Registration of Voters (System of Continuing Registration) WHEN: daily during office hours; at the office of the Election Officer; personally file application to register as voter; no registration 120 days before regular elections and 90 days before special elections (Sec. 1, RA 8189) WHO MAY REGISTER: (Sec. 8, RA 8189) 1. citizens Domino vs. COMELEC, G.R. No. 134015, July 19, 1999 Domino is running for representative of Province of Sarangani but is disqualified for lack of compliance with the 1-yr. residence requirement. Before this, Domino was declared by the Metropolitan Trial Court of Quezon City in an exclusion proceedings that he was a resident of Sarangani and not of Quezon City. Domino contends that the MTC decision is conclusive upon the WHERE: MTC (EOJ), who shall determine the right of voter to be included or excluded in the list; decide within 10 days APPEAL: within 5 days from judgment to the RTC who shall decide the issue within 10 days NO MOTION FOR RECONSIDERATION (Summary) PROCEDURE: (Sec. 32) 1. file during office hours 2. notice of place, date, time of hearing to the Board and the challenged voter 3. refer to one precinct and Board impleaded as respondent 4. no costs, EXCEPT: if it is found that the case was filed to harass the adverse party 5. if the ground for challenging right to register is the person is fictitious, the non-appearance of such person said to be fictitious shall be considered as prima facie evidence 6. decide within 10 days for both MTC and RTC upon appeal; should not be later than 15 days before the election Nature and effect of proceedings: No Res Judicata

COMELEC. But the Supreme Court held otherwise because any fact established in an inclusion or exclusion proceedings only applies to that election and not to elections thereafter held. The decision of the MTC does not preclude the COMELEC, in the determination of the candidates qualification, to pass upon the issue of compliance with the residency requirement. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. xxx Although the court in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the question of citizenship and residence of the challenged voter, the authority to order the inclusion or exclusion from the list of voters necessarily carries with it the power to inquire into and settle all matters essential to the exercise of said authority. However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. In this sense, it does not operate as a bar to any further action that a party may take concerning the subject passed upon in the proceeding. Thus, a decision in an exclusion proceeding would neither be conclusive on the voters political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election. Lambino vs. COMELEC G.R. No. 174153, Oct. 25, 2006 Requirements for Initiative Petition Constitutional Amendment vs. Constitutional Revision Tests to determine whether amendment or revision FACTS:

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must stated the fact of such attachment. This is an assurance that everyone of the several millions of signatories to the petition had seen the full text of the proposed amendments before not after signing. Moreover, an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed and failure to do so is deceptive and misleading which renders the initiative void. In the case of the Lambino Groups petition, theres not a single word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the UnicameralParliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. This omission is fatal. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. Thats why the Constitution requires that an initiative must be directly proposed by the people x x x in a petition - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nations fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives

The Lambino Group commenced gathering signatures for an initiative petition to change the 1987 Constitution and then filed a petition with COMELEC to hold a plebiscite for ratification under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The proposed changes under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. COMELEC did not give it due course for lack of an enabling law governing initiative petitions to amend the Constitution, pursuant to Santiago v. Comelec ruling. ISSUES: Whether or not the proposed changes constitute an amendment or revision Whether or not the initiative petition is sufficient compliance with the constitutional requirement on direct proposal by the people

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a peoples initiative. Section 1 of Article XVII, referring to the first and second modes, applies to any amendment to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to the third mode, applies only to amendments to this Constitution. This distinction was intentional as shown by the deliberations of the Constitutional Commission. A peoples initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Does the Lambino Groups initiative constitute a revision of the Constitution?

RULING: Initiative petition does not comply with Sec. 2, Art. XVII on direct proposal by people Sec. 2, Art. XVII...is the governing provision that allows a peoples initiative to propose amendments to the Constitution. While this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of our Constitution clearly show that: (a) the framers intended to adopt relevant American jurisprudence on peoples initiative; and (b) in particular, the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. 2 elements of initiative First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition.

Yes. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. Amendment vs. Revision Courts have long recognized the distinction between an amendment and a revision of a constitution. Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100% to 60% is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word republican with monarchic or theocratic in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow peoples initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. Tests to determine whether amendment or revision In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, a change in the nature of [the] basic governmental plan includes change in its fundamental framework or the fundamental powers of its Branches. A change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government and the system of check and balances. Under both the quantitative and qualitative tests, the Lambino Groups initiative is a revision and not merely an amendment. Quantitatively, the Lambino Groups proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. The Lambino Group theorizes that the difference between amendment and revision is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called revisions because members of the deliberative body work full-time on the changes. The same substantive changes, when proposed through an initiative, are called amendments because the changes are made by ordinary people who do not make an occupation, profession, or vocation out of such endeavor. The SC, however, ruled that the express intent of the framers and the plain language of the Constitution contradict the Lambino Groups theory. Where the intent of the framers

and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. MACALINTAL vs COMELEC Petitioner Romulo B. Macalintal, a member of the Philippine Bar, sought to declare certain provisions of Republic Act No. 9189 entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes" as unconstitutional. Petitioner contended that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cited the ruling of the Court in Caasi vs. Court of Appeals to support his claim. In that case, the Court held that a "green card" holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines. The Supreme Court upheld the constitutionality of Section 5(d) of R.A. No. 9189. According to the Court, Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, under existing election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The Court, however, declared certain provisions of the law unconstitutional, namely, portions of Secs. 17.1, 19 and 25, as they trampled on the constitutional mandate of independence of the Commission on Elections. The Court also upheld Section 18.5 of R.A. No. 9189 with respect only to the authority given to the COMELEC to proclaim the winning candidates for Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The Court likewise upheld Sec. 5 (d) of the law. It also declared that pursuant to Sec. 30 of the law the rest of the provision of said law continues to be in full force and effect. ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE TO THE MANDATE OF THE CONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR VOTING BY QUALIFIED FILIPINOS ABROAD. As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon, the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of is framers through their debates in the constitutional convention. R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. 3.ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEING TO REMOVE DOUBT AS TO THE INAPPLICABILITY OF THE RESIDENCY REQUIREMENT IN SECTION 1. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residencein the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this country's leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself

provides for the residency requirement of voters. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. Tecson vs. COMELEC , GR 16134 , March 3, 2004 FACTS: Petitioners questioned the jurisdiction of the COMELEC in taking cognizance of and deciding the citizenship issue affecting Fernando Poe Jr. They asserted that under Section 4(7) , Article VII of the 1987 Constituition, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue of the case. ISSUE: As the Presidential Electoral Tribunal (PET) , does the Supreme Court have jurisdiction over the qualifications of presidential candidates? RULING: No. An examination of the phraseology in Rule 12, 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court on April 1992 categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. In such context, the election contest can only contemplate a postelection scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vicepresidency before the elections are held. Certificates of Candidacy

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: residence or bodily presence in the new locality intention to remain there 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 WHO MAY FILE: citizen registered voter read/write Filipino 1-yr. residence 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 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 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 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.

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)

Gayo vs. Verceles, G.R. No. 150477, Feb. 28, 2005

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) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions committed acts of terrorism to enhance his candidacy spent in his election campaign an amount in excess of that allowed by law solicited, received, or made any prohibited contributions permanent resident of or an immigrant to a foreign country, UNLESS he waives such status Effect of disqualification: no proclamation of the second placer

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: Materiality Intention to mislead

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 Trinidads disqualification, he be declared as Mayor. While case is pending final resolution, Trinidads mayoralty term has expired. Supreme Court held that the issue has been rendered moot and academic by the expiration of petitioners 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 peoples right to elect officials of their choice. REMEDIES AGAINST DISQUALIFIED CANDIDATES Before Election (sec. 78) - petition to deny due course or cancel certificate of candidacy 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)

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

WHO MAY FILE DISQUALIFICATION CASE AGAINST NUISANCE CANDIDATE: Motu propio by the Comelec Verified petition by any registered candidate PROCEDURE (sec. 5, RA 6646) file verified petition within 5 days from last day of filing of certificate of candidacy upon receipt, within 3 days, COMELEC issues summons verified answer within 3 days from receipt of summons 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 Final and executory after 5 days from receipt by parties of the decision, UNLESS stayed by Supreme Court DISSEMINATION: within 24 hours through the fastest available means Equal access to opportunity for public service is a privilege subject to limitations

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

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- selfexecuting 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.

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.

Substitution

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.

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

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)

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 Bettys 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 Rolludas 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 cant 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. Ongs 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?

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