PROSECUTION of ELECTION OFFENSES

What are the election laws that provide for election offenses?

ART. XXII, SECTIONS 261AND 262of BATAS PAMBANSA BLG. 881, Omnibus Elections Code of the Philippines

SECTION 27 of REPUBLIC ACT NO. 6646, The Electoral Reforms Law of 1987

SECTIONS 9, 25 AND 31 of REPUBLIC ACT NO. 7166, An Act providing for Synchronized National and Electoral Reforms, authorizing appropriations therefore, and for other purposes

SECTION 45 of REPUBLIC ACT NO. 8189, The Voters Registration Act of 1996

SECTION 5 of REPUBLIC ACT NO. 8295, An Act providing for the Proclamation of a Lone Candidate for Any Elective Office in a Special Election, and for other purposes

SECTION 13 of REPUBLIC ACT NO. 9006, The Fair Election Act

SECTION 24 of REPUBLIC ACT NO. 9189, The Overseas Absentee Voting Act of 2003

SECTIONS 28, 31, 32, 33, 35, 37, 39, 40 and 42 of REPUBLIC ACT NO. 9369, An Act Amending Republic Act No. 8436 Entitled An Act Authorizing the Commission on Elections to Use an Automated Election System in May 11, 1998 National or Local Elections and in Subsequent National or Local Electoral Exercises, to encourage transparency, credibility, fairness and accuracy of elections, amending for the purpose Batas Pambansa Blg. 881, as amended, Republic Act No. 7166 and other related election laws, providing funds therefore and for other purposes.

WHO HAS THE POWER TO PROSECUTE ELECTION OFFENSES?

SECTION 43. Section 265 of Batas Pambansa Blg. 881is hereby amended to read as follow:"SECTION 265.Prosecution.- The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same."

CAN A CITIZEN OR PUBLIC OFFICER MAKE WARRANTLESS ARREST IN CONNECTION WITH AN OFFENSE RELATING TO ELECTION CAMPAIGN?

No. No person shall be arrested and/or detained at any time for any alleged offense committed during and in connection with any election through any act or language tending to support or oppose any candidate, political party or coalition of political parties under or pursuant to any order of whatever name or nature and by whomsoever issued except upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution shall have been strictly complied with.

WHAT ARE THE CONSEQUENCES OF VIOLATING THE REQUIREMENT OF AN ARREST WARRANT IN CONNECTION WITH ELECTION CAMPAIGN?Any officer or person who violated this requirement shall be punished by imprisonment of not less than six (6) years and one (1) day nor more than twelve (12) years, with accessory penalties for election offenses. The provision of Sec. 267 of this Code (on prescription) shall not apply to prosecution under this section.

WHAT IS THE PRESCRIPTIVE PERIOD FOR THE PROSECUTION OF ELECTION OFFENSES?

Election offenses shall prescribe after five years after the date of their commission. If the discovery of the offense be made in an election contest proceedings, the period of prescription shall commence on the date on which the judgment of such proceedings becomes final and executory.

WHO HAS JURISDICTION TO TRY AND DECIDE ELECTION OFFENSE?

The Regional Trial Court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for the violation of the Omnibus Election Code. From this decision of the courts, appeal will lie as in other criminal cases.

WHAT IS THE RULE ON THE PREFERENTIAL DISPOSITION OF ELECTION OFFENSES?

The investigation and prosecution of cases involving violations of the election laws shall be given preference by the Commission on Elections and prosecuting officials. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within five days from its submission for resolution. The courts shall likewise give preference to election offenses over all other cases, except petitions for writ of habeas corpus. Their trial shall likewise be commenced without delay, and shall be conducted continuously until terminated, and the case shall be decided within thirty days from its submission for decision.

WHAT IS THE REQUIRED PARDON, AMNESTY, PAROLE OR SUSPENSION OF SENTENCE FOR VIOLATION OF ELECTION LAWS, RULES AND REGULATIONS MAY BE GRANTED BY THE PRESIDENT?There must be a favorable recommendation first by the COMELEC. Sec. 5 of Art. XI-C of the Constitution provides that no pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations may be granted by the President without the favorable recommendation of the Commission.

BAR QUESTION No. XVII 2010 Bar ExaminationGrant of Pardon to Election Offenses During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a PNP checkpoint for carrying high-powered firearms in his car. He was charged and convicted for violation of the COMELEC gun ban. He did not appeal his conviction and instead applied for executive clemency. Acting on the favorable recommendation of the Board of Pardons and Parole, the President granted him pardon. Is he eligible to run against for an elective position?. Explain Briefly. (5%)

SUGGESTED ANSWER: Mayor Galicia can run again for an elective office but not immediately. Under Section 40 of the Local Government Code, he cannot run for an elective office within two (2) years after serving sentence. Under Section 12 of the Omnibus Election Code, he can run for an elective national office after the expiration of five (5) years from his service of sentence. The pardon granted to him is invalid. The offense involved a violation of the Omnibus Election Code and the pardon was granted without the favorable recommendation of the Commission on Elections. (Section 5, Article IX-C of the Constitution).

ALTERNATIVE ANSWER: No. Galicia is not eligible to run for an elective position because the executive clemency is not valid and effective because it was granted with constitutional infirmity. The Constitution requires recommendation from the COMELEC before the President may grant executive clemency for offenses violating election laws.

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