thereof provides that “the lone candidate so proclaimed shall assume office not earlier than the scheduled election day, in the

absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code.”

225. Who are disqualified to run in a special election under the Lone Candidate Law?

Answer: Section 4 of the Lone Candidate Law provides that “In addition to the disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 7160, otherwise known as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run in a special election called to fill the vacancy in an elective office, to wit:

a) Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and

b) Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate.”

226. What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor?

Held: The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Miranda v.

Abaya, G.R. No. 136351, July 28, 1999)

227. May a disqualified candidate and whose certificate of candidacy was denied due course and/or canceled by the Comelec be validly substituted?

Held: Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non .

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999, en Banc [Melo])

228. Should the votes cast for the substituted candidate be considered votes for the substitute candidate?

Answer: Republic Act No. 9006, otherwise known as the Fair Election Act, provides in Section 12 thereof: “In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter:

Provided, however, that if the substitute candidate is of the same family name, this provision shall not apply.”

229. What is the effect of the filing of certificate of candidacy by elective officials?

Answer: COMELEC Resolution No. 3636, promulgated March 1, 2001, implementing the Fair Election Act (R.A. No. 9006) provides in Section 26 thereof: “any elective official, whether national or local, who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office.”

NOTE that Section 67 of the Omnibus Election Code and the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 which modified said Section 67, were expressly repealed and rendered ineffective, respectively, by Section 14 (Repealing Clause) of The Fair Election Act (R.A. No. 9006).

230. What kind of “MATERIAL MISREPRESENTATION” is contemplated by Section 78 of the Omnibus Election Code as a ground for disqualification of a candidate? Does it include the use of surname?

Held: Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Omnibus Election Code refers to qualifications for elective office . This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave – to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantial political right to be voted for a public office upon just any innocuous mistake.

[A]side from the requirement of materiality, a false representation under Section 78 must consist of a “deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.” In other words, it must be made with an intention to deceive the electorate as to one’s qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one’s identity, is not within the scope of the provision. (Victorino Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En Banc [Gonzaga-Reyes])

231. Who has authority to declare failure of elections and the calling of special election? What are the three instances where a failure of election may be declared?

Held: The COMELEC’s authority to declare failure of elections is provided in our election laws. Section 4 of RA 7166 provides that the Comelec sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special election as provided in Section 6 of the Omnibus Election Code.

X x x

There are three instances where a failure of election may be declared, namely, (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a resulting failure to elect.

This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, where the preparation and the transmission of the election returns give rise to the consequence of failure to elect, it must x x x, be interpreted to mean that nobody emerged as a winner.

(Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

232. What are the two conditions that must concur before the COMELEC can act on a verified petition seeking to declare a failure of election?

Held: Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely:

(1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes.

Thus, in Banaga, Jr. v. COMELEC (336 SCRA 701, July 31, 2000, En Banc [Quisumbing]), the SC held:

“We have painstakingly examined the petition filed by petitioner Banaga before the Comelec. But we found that petitioner did not allege at all that elections were either not held or suspended. Neither did he aver that although there was voting, nobody was elected. On the contrary, he conceded that an election took place for the office of vice-mayor of Paranaque City, and that private respondent was, in fact, proclaimed elected to that post.

While petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody and canvass of the election returns. These essential facts ought to have been alleged clearly by the petitioner below, but he did not.”

233. Cite instances when Comelec may or may not validly declare failure of elections.

Held: In Mitmug v. COMELEC (230 SCRA 54 [1994]), petitioner instituted with the COMELEC an action to declare failure of election in forty-nine precincts where less than a quarter of the electorate were able to cast their votes. He also lodged an election protest with the Regional Trial Court disputing the result of the election in all precincts in his municipality. The Comelec denied motu proprio and without due notice and hearing the petition to declare failure of election despite petitioner’s argument that he has meritorious grounds in support thereto, that is massive disenfranchisement of voters due to terrorism. On review, we ruled that the Comelec did not gravely abuse its discretion in denying the petition. It was not proven that no actual voting took place. Neither was it shown that even if there was voting, the results thereon would be tantamount to failure to elect.

Considering that there is no concurrence of the conditions seeking to declare failure of election, there is no longer need to receive evidence on alleged election irregularities.

In Sardea v. COMELEC (225 SCRA 374 [1993]), all election materials and paraphernalia with the municipal board of canvassers were destroyed by the sympathizers of the losing mayoralty candidate. The board then decided to use the copies of election returns furnished to the municipal trial court. Petitioner therein filed a petition to stop the proceedings of the board of canvassers on the ground that it had no authority to use said election returns obtained from the municipal trial court. The petition was denied. Next, he filed a petition assailing the composition of the board of canvassers. Despite that petition, the board of canvassers proclaimed the winning candidates.

Later on, petitioner filed a petition to declare a failure of election alleging that the attendant facts would justify declaration of such failure. On review, we ruled that petitioner’s first two actions involved pre-proclamation controversies which can no longer be entertained after the winning candidates have been proclaimed.

Regarding the petition to declare a failure of election, we held that the destruction and loss of copies of election returns intended for the municipal board of canvassers on account of violence is not one of the causes that would warrant the declaration of failure of election. The reason is that voting actually took place as scheduled and other valid election returns still existed. Moreover, the destruction or loss did not affect the result of the election. We also declared that there is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected.

X x x

In Loong v. COMELEC (257 SCRA 1 [1996]), the petition for annulment of election results or to declare failure of elections in Parang, Sulu, on the ground of statistical improbability and massive fraud was granted by the COMELEC. Even before the technical examination of election documents was conducted, the Comelec already observed badges of fraud just by looking at the election results in Parang. Nevertheless, the Comelec dismissed the petition for annulment of election results or to declare failure of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Calauag. The COMELEC dismissed the latter action on ground of untimeliness of the petition, despite a finding that the same badges of fraud evident from the results of the election based on the certificates of canvass of votes in Parang are also evident in the election results of the five mentioned municipalities. We ruled that Comelec committed grave abuse of discretion in dismissing the petition as there is no law which provides for a reglementary period to file annulment of elections when there is yet no proclamation. The election resulted in a failure to elect on account of fraud. Accordingly, we ordered the Comelec to reinstate the aforesaid petition. Those circumstances, however, are not present in this case, so that reliance on Loong by petitioner Banaga is misplaced. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

234. Is a petition to declare failure of election different from a petition to annul the election results?

Held: A prayer to declare failure of elections and a prayer to annul the election results x x x are actually of the same nature.

Whether an action is for declaration of failure of elections or for annulment of election results, based on allegations of fraud, terrorism, violence or analogous, the Omnibus Election Code denominates them similarly.

(Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

235. What conditions must concur before the Comelec can act on a verified petition seeking to declare a failure of election? Is low turn-out of voters enough basis to grant the petition?

Held: Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: FIRST, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, SECOND, the votes not cast would affect the result of the election.

There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision, in our election laws, which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. (Mitmug v. COMELEC, 230 SCRA 54, Feb. 10, 1994, En Banc [Bellosillo])

236 Distinguish a petition to declare failure of elections from an election protest.

Held: While petitioner may have intended to institute an election protest by praying that said action may also be considered an election protest, in our view, petitioner’s action is a petition to declare a failure of elections or annul election results. It is not an election protest.

First, his petition before the Comelec was instituted pursuant to Section 4 of Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to “postponement, failure of election and special elections” while Section 6 of the Omnibus Election Code relates to “failure of election.” It is simply captioned as “Petition to Declare Failure of Elections and/or For Annulment of Elections.”

Second, an election protest is an ordinary action while a petition to declare a failure of elections is a special action under the 1993 Comelec Rules of Procedure as amended. An election protest is governed by Rule 20 on ordinary actions, while a petition to declare failure of elections is covered by Rule 26 under special actions.

In this case, petitioner filed his petition as a special action and paid the corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This conforms to petitioner’s categorization of his petition as one to declare a failure of elections or annul election results. In contrast, an election protest is assigned a docket number starting with “EPC,” meaning election protest case.

Third, petitioner did not comply with the requirements for filing an election protest. He failed to pay the required filing fee and cash deposits for an election protest. Failure to pay filing fees will not vest the election tribunal jurisdiction over the case. Such procedural lapse on the part of a petitioner would clearly warrant the outright dismissal of his action.

Fourth, an en banc decision of Comelec in an ordinary action becomes final and executory after thirty (30) days from its promulgation, while an en banc decision in a special action becomes final and executory after five (5) days from promulgation, unless restrained by the Supreme Court (Comelec Rules of Procedure, Rule 18, Section 13 [a], [b]). For that reason, a petition cannot be treated as both an election protest and a petition to declare failure of elections.

Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that the local elections for the office of vice-mayor in Paranaque City held on May 11, 1998, denigrates the true will of the people as it was marred with widespread anomalies on account of vote buying, flying voters and glaring discrepancies in the election returns. He averred that those incidents warrant the declaration of a failure of elections.

Given these circumstances, public respondent cannot be said to have gravely erred in treating petitioner’s action as a petition to declare failure of elections or to annul election results. (Banaga, Jr.

v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

237. What are pre-proclamation cases, and exceptions thereto? What Court has jurisdiction over pre-proclamation cases?

Held: As a GENERAL RULE, candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the Comelec. Pre-pre-proclamation cases refer to any question pertaining to or affecting the PROCEEDINGS of the BOARD of CANVASSERS which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the PREPARATION , TRANSMISSION , RECEIPT , CUSTODY and APPRECIATION of election returns (Section 241, Omnibus Election Code). The Comelec has EXCLUSIVE JURISDICTION over ALL pre-proclamation controversies (Section 242, supra). As an EXCEPTION, however, to the general rule, Section 15 of Republic Act 7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases. It states:

“Sec. 15. Pre-Proclamation Cases Not Allowed in Elections

“Sec. 15. Pre-Proclamation Cases Not Allowed in Elections