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Flying Voters the Nightmare of Honest Politicians

ANNOTATION
FLYING VOTERS THE NIGHTMARE OF HONEST
POLITICIANS
By
*
JORGE R. COQUIA
__________________
1. The Constitutional Power of the COMELEC to
Investigate and Prosecute Election Offenses,
p. 719
2. The Order of the COMELEC for the
Preliminary
Investigation
of
Election
Offenses may not be Enjoined on Ground of
Lack of Intent, p. 720
3. Election Offenses as Malum Prohibitum, p.
720
4. Jurisdiction of the COMELEC en banc to Act
Directly on Administrative Matters Involving
Discretion, p. 721
5. The Determination of a Probable Cause in the
Preliminary Investigation is a Discretionary
Power of the COMELEC, p. 722
6. Prescription of Election Offenses, p. 722
7. Strict Application of Election Law Offenses, p.
722
8. The Need of a Political Will to Strictly Enforce
Election Laws and Prosecute Offenders With
More Vigor, p. 723
_________________
The Election Code is one of the most violated laws in this

country. Come election time, candidates and their

supporters commit all kinds of acts to gain undue
advantage over their opponents. One common offense is the
registration of voters many times over in several places.
Lately, the dagdag bawas has been prevalent during the
tabulation of votes. The most prevalent violation which
frustrate the sovereign will of the people in choosing the
candi
_______________
*

Member, Board of Editorial Consultants, Supreme Court Reports

Annotated (SCRA).
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Flying Voters the Nightmare of Honest Politicians

dates who will run the affairs of the government is the

flying voters.
The decision of the Supreme Court in REYNATO
BAYTAN, REYNALDO BAYTAN and ADRIAN BAYTAN,
petitioners, vs. COMMISSION ON ELECTIONS,
respondent, G.R. No. 153945, January 4, 2003 is a common
example of the scheme of registering voters in several
voting precincts.
It appears in said case that the barangay captain of
Barangay 18, Zone II in Cavite City led the three
petitioners to register in Precinct No. 18. The said
petitioners alleged that they might have registered in
wrong precinct so they returned to the precinct and looked
into the map of location of precincts. They realized that
they should be registered in Precinct No. 129A within the
jurisdiction of their residence. So they registered anew in
said precinct. According to them they sent a letter to the
Executive Director of the COMELEC asking for advice on
how to cancel their previous registration and were willing
to correct their error.
Upon discovery of the double registration of the
petitioners, the Provincial Election Supervisor endorsed
the matter to the Regional Director for prosecution of the
petitioners. Eventually, the COMELEC in an en banc
Resolution affirmed the recommendation of the Election
officer of Cavite to file the information against the

petitioners for violation of Article XII, par. (y), Sec. 261,

subpar. (5) of the Omnibus Election Code.
The petitioners filed a petition for certiorari with the
Supreme Court challenging the validity of the COMELEC
Resolution with preliminary injunction or restraining order
to enjoin their prosecution.
1. The Constitutional Power of the COMELEC to
Investigate and Prosecute Election Offenses
The Supreme Court has emphasized in this case the
importance of the mandate given to the Commission on
Elections to investigate and where appropriate, prosecute
cases of violations of election laws, including acts of
omissions constituting election frauds, offenses and
malpractices. (Article IX (c), section 2 (6) of Philippine
Constitution. This power is pursuant of the COMELECs
general powers, functions to enforce and administer all
laws and regula
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Flying Voters the Nightmare of Honest Politicians

tions relative to the conduct of an elections, plebiscite

initiative, referendum and recall (Sec. 2(1), Id.
Indeed violations of elections has been prevalent in
almost all elections. Rampant and gross violations have
been committed by candidates and their followers or
supporters especially by those who belong to the party in
power. Such acts have been frequently tolerated and the
perpetrators escape prosecution thus defeating the will of
the sovereign will of the people.
Ever since the representative democracy has been
established in this country when the people are given the
freedom to choose the candidates in elections frauds have
been committed even by lower level officers of the
COMELEC. Serious election offenses are committed and
reported but they are tolerated and even if they are
reported to the authorities the perpetrators are not
prosecuted. After the election the offenses are all forgotten.
2. The Order of the COMELEC for the Preliminary

Investigation of Election Offenses may not be

Enjoined on Ground of Lack of Intent
There is no doubt that the petitioners registered twice in
different places which is in violation of Article XXII, Sec.
261, par. (y) sub par. (5) of the Omnibus Election Code
which reads: Any person who, being a registered voter,
registers anew without filing an application for cancellation
of his previous registration. This is an offense which is
malum prohibitum.
The challenged Resolution of the COMELEC is for the
Preliminary Investigation of the petitioner. Preliminary
investigation is only to determine whether there is a
probable cause of the commission of the crime and the
information will forth be filed.
When investigating and prosecuting election offenses
the COMELEC is acting analogous to the Ombudsman
with investigatory and prosecutory powers. The court have
on occasions looked into the Ombudsmans action upon the
allegation of grave abuse of discretion. (GarciaRuela vs.
Pascasio, 278 SCRA 769 (1997) Yabut vs. Office of the
Ombudsman, 233 SCRA 718 (1994).
3. Election Offenses as Malum Prohibitum
In praying for the prohibition to enjoin their prosecution,
the petitioner allege that they did not intend to commit the
offense of
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Flying Voters the Nightmare of Honest Politicians

double registration. They allegedly sought the advice of the

COMELEC Regional Director on how to correct their
mistake in registering anew in a different precinct. As
special statute, election offenses are malum prohibitum.
Malum prohibitum is defined to be an act made wrong by
legislationa forbidden evil (26 Words and Phrases
Defined, 259) Tested by said definition, the offenses
provided by the Election Code, the petitioners alleged good
faith or lack of intention or malice in registering twice in
different places is of no avail, considering in crimes which
are mala prohibita. The acts alone, irrespective of the

motive, constitute the offense (Lacson, Jr. vs. Posadas, 72

SCRA 168 (1976). Criminal intention is not necessary
where act is prohibited by a statute or a statutory offenses
such as violations of election are mala prohibita. Proof of
criminal intent is not necessary. Good faith, ignorance or
lack of malice is beside the point. The commission of the act
is sufficient. It is the act itself that is punished and not the
intention (People vs. Bayona, 61 Phil. 181 People vs.
Fuentes, 61 SCRA 186)
4. Jurisdiction of the COMELEC En Banc can Act
Directly on Administrative Matters Involving
Discretionary Powers
The petitioners challenged the jurisdiction of the
COMELEC acting en banc without referring the case first
to its divisions, citing Sarmiento vs. COMELEC, 212 SCRA
307 (1992) and Zarate vs. COMELEC, 318 SCRA 608
(1999) ruling that election cases should be first heard by
one of the divisions of the COMELEC.
The Court took note of the ruling in its decision
Canicosa vs. COMELEC, 282 SCRA 512 (1997) that it is
only in its adjudicatory or quasijudicial powers that the
COMELEC is mandated to hear and decide cases first by
the divisions, before the COMELEC en banc. The conduct
of a preliminary investigation does not determine with
finality the guilt of the respondent. Section 2, Article IX, of
the Constitution vests the COMELEC with administrative
and quasijudicial powers. The COMELEC en banc can act
directly on matters falling within is administrative powers.
Similarly, in Domalanta vs. COMELEC, 334 SCRA 555
(2000), the Court dismissed the petition for certiorari to
enjoin the Resolution of the COMELEC en banc ordering
the filing of the information against the petitioners for vote
padding. The Court ruled that all that is required in a
preliminary investigation is to determine the probable
cause as to justify the holding of the petitioners for trial.
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Flying Voters the Nightmare of Honest Politicians

 5. The Determination of a Probable Cause in the

Preliminary Investigation is a Discretionary Power
of the COMELEC
The finding of a probable cause lies within the sound
discretion of the COMELEC. Unless there is a clear
showing of grave abuse of discretion, the Supreme Court
will not interfere in its ruling and petition for certiorari
will not lie. A petition for certiorari must be grounded on
alleged grave abuse of discretion amounting to lack or
excess of jurisdiction. In Sadikal vs. COMELEC, 324 SCRA
510 (2000), the Court held that certiorari as a special civil
action can be availed of only if there is concurrence of the
essential requisites, to wit: (a) the tribunal, board or officer
of exercising judicial functions has acted without or in
excess of jurisdiction, and (b) there is no appeal, nor any
plain, speedy and adequate remedy in the ordinary course
of law for the purpose of annulling or modifying the
proceedings. There must be capricious, arbitrary and
whimsical exercise of power for it to prosper.
6. Prescription of Election Offenses
Election offenses shall prescribe after five years from 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 in such proceedings becomes final and executory
(Section 267, Omnibus Election Code)
In the case under annotation the offense of double
registration occurred on June 27, 1997. On November 9,
2000, the COMELEC ordered the filing of the information
against the petitioners. The period of prescription was
interrupted by the filing of the information against the
petitioners.
7. Strict Application of Election Offense
The petitioners plead for a liberal construction of the
election law. While statutes governing elections should be
interpreted and applied liberally in favor of the citizens
right to vote, the law, however, imposes restrictions on
election offenses in order to give effect to the will of the

electorate. Courts have uniformly held that the

enforcement of said laws as entrusted to the Commission
on Elections shall enforce said laws effectively. The basic
postulate is to entrust to constitutional body the task of
insuring free, and honest
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Flying Voters the Nightmare of Honest Politicians

elections, based on the universal recognition (Gabatan vs.

Commission on Elections, 122 SCRA 1 (1983)
In a representative democracy, the right of suffrage,
although accorded a prime niche in the hierarchy of rights
embodied in the fundamental law, ought to be exercised
within the proper bounds and framework of the
Constitution and must properly yield to pertinent laws
skillfully enacted by the legislature (Akbayan Youth vs.
Commission on Elections, 355 SCRA 318 (2001)
The act of registration is an indispensable precondition
to the right of suffrage. The State undoubtedly in the
exercise of inherent police power, may thus enact laws to
safeguard and regulate of voters registration for the
ultimate purpose of conducting honest, orderly and
peaceful election, to the incidental yet generally important
end, that even preelection activities could be performed by
the duly constituted authorities in a realistic and orderly
manner, one which is not indifferent and so far removed
from the pressing order of the day and the prevalent
circumstances of the times (Id.). Thus, acts of candidates
and their supporters, such as double registration of voters
which frustrate the true will of the sovereign electorate
must be penalized. A liberal interpretation of criminal
offenses will defeat the very intent of the legislative to see
to it that there is a free, orderly and honest election.
The Supreme Court has said in one case that the sacred
right of suffrage guaranteed by the Constitution is not
tampered when a list of fictitious voters is excluded from
the electoral exercise. (Domalanta vs. Commission on
Elections, 334 SCRA 333 (2000) There is limit to what can
be construed as honest mistake or oversight in the
performance of duty (Id.)

 8. The Need of a Political Will to Strictly Enforce

Election Laws and Prosecute Offenders with More
Vigor
As already adverted to in all elections since representative
democracy has been enjoyed by the Filipino people political
candidates and their followers have committed all serious
acts contrary to a free, orderly, peaceful and honest
elections. The legislature has enacted laws to punish
election offenses and the Election Code has to be amended
several times to include several new offenses discovered
during elections. The Omnibus Election Code now
enumerates as many as thirtyseven election offenses and
adds in Section 232 Other Election Offenses. Most of
these penal provi
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Flying Voters the Nightmare of Honest Politicians

sions are violated flagrantly, as the offenders are not

prosecuted with determination. There is lack of political
will in the part of election officials to punish offenders.
A recent example of a flagrant violation of the election
laws is the premature campaigning. Section 80 of the
Omnibus Election Code provides that it shall be unlawful
for any person, whether or not a voter or candidate, or for
any party, or association of persons, to engage in an
election campaign or partisan political activity except
during the campaign period provided: That political party
may hold political conventions or meetings to nominate
their official candidates within thirty days before the
commencement of the campaign period and forty five days
for Presidential and VicePresidential election.
Section 261 (cc1) of the same Code also prohibits any
political party which holds political conventions or
meetings to nominate is official candidates earlier than the
period fixed in the Code.
In the forthcoming 2004 elections, as early as 2003 all
acts of political partisan activities have openly committed
acts of campaigning. Candidates who have already
announced their candidates long before the campaign

period have been travelling around the country seeking the

support of the people. Television announcements in the
form of advertisements or the promotion a certain product
are all settled acts of campaigning. Incumbent officials
have openly announced their availability for an elective
post and suddenly become over enthusiastic in the
performance of their duties shaking hands of persons in all
occasions.
The COMELEC has been over tolerant on this unlawful
and flagrant violations of the election law, thus giving the
impression to the people that election laws can easily be
violated with impunity. Not even a warning or admonition
from the COMELEC have been made in these violation of
the election law.
Republic Act No. 7766 provides that the campaign
period for the President, VicePresident and the senators is
90 days before the date of the elections and 45 days for
members of the house of Representatives and local officials.
Campaigning outside these periods is an election offense.
The purpose of the prohibition is to prevent people from
engaging in political activities not attending to their daily
tasks. Incumbent public officials should be attending to
their duties for the promotion in the welfare of the people
instead of enhancing their personal ambitions.
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This objective of the prohibition is generally ignored.

Incumbent officials running for office on the pretext of
provincial visits, actually campaign using government
funds, vehicles and equipment. Local officials suddenly
embark on public improvements exhibiting their pictures
in large streamers that said projects are undertaken
through their generosity to make the people feel indebted
to them.
It is a wonder that COMELEC officials do not take steps
to enforce the law which is flagrantly violated.
o0o
726

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