Rules of Procedures in the Investigation and Prosecution of Election Offense Cases in the Commission on Elections

April 13, 2012

COMELEC RESOLUTION NO. 9386

RULES OF PROCEDURES IN THE INVESTIGATION AND PROSECUTION OF ELECTION OFFENSE CASES IN THE COMMISSION ON ELECTIONS

WHEREAS, there is a need to reconstruct, reform and amend Rule 34 of the COMELEC Rules of Procedures entitled "Prosecution of Election Offenses" to reconcile some conflicts, inconsistencies and ambiguities with other prevailing laws and rules;

WHEREAS, it is also imperative to standardize the investigative and prosecutorial works in the Commission on Elections in a unified and simplified manner and in harmony with existing laws;

WHEREAS, the reconstructed, reformed and amended Rule 34 shall provide updated and simplified procedural guidelines in the investigation and prosecution of election offenses;

NOW, THEREFORE, the Commission on Elections, pursuant to the authority vested in it under the Constitution and other pertinent election laws, RESOLVED, as it hereby RESOLVES to approve the amendments in Rule 34 of COMELEC Rules of Procedure and to adopt the following rules and guidelines on the investigation and prosecution of election offenses, to wit:

SECTION 1. Authority of the Commission to Prosecute Election Offenses. — The Commission shall have the concurrent authority with other prosecuting arms of the government to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. aDIHCT

SECTION 2. Authority of COMELEC Lawyers to Investigate and Prosecute. — All lawyers in the Commission who are Election Officers in the National Capital Region ("NCR"), Provincial Election Supervisors, Regional Election Attorneys, Assistant Regional Election Directors, Regional Election Directors and lawyers of the Law Department are authorized to conduct preliminary investigation of Complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the Commission.

Such authority may be revoked or withdrawn any time by the Commission whenever in its sound judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, or when it believes that successful prosecution of the case can be done by other lawyers in the Commission.

SECTION 3. Initiation of Complaint. — Initiation of Complaints for election offenses may be done upon the initiative of the Commission, or upon written Complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the party-list system or any accredited citizens' arms of the Commission or any law enforcement officer.

SECTION 4. Form of Complaint and Where to File. — The Complaint shall state the address of the respondent and shall be accompanied by the Affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus three (3) copies for the official file. The Affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public, each of whom must certify that he personally examine the affiants and that he is satisfied that they voluntarily executed and understood their Affidavits.

Complaints, filed upon the initiative of the Commission, may be signed by the Chairman of the Commission, or the Director of the Law Department upon direction of the Chairman, which must be subscribed and sworn to.

SECTION 5. Where to File a Complaint. — (a) All election offense Complaints involving electoral sabotage, or those where some or all of the respondent/s are COMELEC officials and employees, or that the offense involved carries a penalty that is non-bailable, shall be filed with the Law Department. CHDTEA

(b) All other election offenses involving violation of Batas Pambansa Blg. 881, Republic Act Nos. 7166, 6646, 8189, 9189, 9369 and other pertinent election laws shall be filed with the Offices of the Election Officers if committed in the National Capital Region, Provincial Election Supervisors or Regional Election Directors, where the offense was committed or any of its essential elements took place.

In electoral sabotage cases, or those where one or some of the respondent/s are COMELEC officials and employees, or that the offense involved carries a penalty that is non-bailable, are filed with the Regional Election Directors or Provincial Election Supervisors, or NCR Election Officers, said officials shall immediately transmit to the Director of the Law Department a copy of the Complaint and the supporting documents within five (5) days from receipt thereof.

SECTION 6. Conduct of Preliminary Investigation. — (a) Within ten (10) days from receipt of the Complaint, the investigating officer shall issue a subpoena to the respondent/s, attaching thereto a copy of the Complaint, Affidavits and other supporting documents, giving said respondent/s ten (10) days from receipt within which to submit Counter-Affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant. Otherwise, the investigating officer shall dismiss the Complaint if he finds no ground to continue with the inquiry.

(b) Such Counter-Affidavits and other supporting evidence submitted by the respondent shall be furnished by the latter to the complainant.

(c) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit Counter-Affidavits within the ten (10)-day period, the investigating officer shall base his Resolution on the evidence presented by the complainant.

(d) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present, but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

(e) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within thirty (30) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Where the respondent is a minor, the investigating officer shall not conduct the preliminary investigation unless the child respondent shall have first undergone the requisite proceedings before the Local Social Welfare Development Officer pursuant to Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006". THIcCA

No motion, except on the ground of lack of jurisdiction or request for extension of time to submit Counter-Affidavits shall be allowed or granted except on exceptionally meritorious cases. Only one (1) Motion for Extension to file Counter-Affidavit for a period not exceeding ten (10) days shall be allowed. The filing of Reply-Affidavits, Rejoinder-Affidavits, Memoranda and similar pleadings are likewise prohibited.

A Memorandum, Manifestation or Motion to Dismiss is a prohibitive pleading and cannot take the place of a Counter-Affidavit unless the same is made by the respondent himself and verified.

When an issue of a prejudicial question is raised in the Counter-Affidavit, the investigating officer shall suspend preliminary investigation if its existence is satisfactorily established. All orders suspending the preliminary investigation based on existence of prejudicial question issued by the investigating officer shall have the written approval of the Regional Election Director or the Director of the Law Department, as the case may be.

SECTION 7. Inquest Proceedings. — Where a person has been arrested and detained for committing an election offense without the benefit of a warrant of arrest issued by court, an inquest shall be conducted for the purpose of determining whether the person should remain in custody and correspondingly be charged in court.

Where the respondent is a minor, the inquest investigator shall not conduct an inquest unless the child respondent shall have undergone the requisite proceedings before the Local Social Welfare Development Officer pursuant to Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006".

Unless otherwise directed by the Commission, the inquest investigator shall discharge its functions during the hours of his designated assignments and only at the police stations of the PNP or at the office of the inquest investigator.

Inquest proceedings commences only upon receipt by the inquest investigator of the following:

a. Affidavit of Arrest duly subscribed and sworn to before him by the arresting officer;

b. Investigating Report;

c. Sworn Statements of the complainant/s and witness/es, if available; and SIHCDA

d. Other supporting pieces of evidence gathered by the arresting officer during the course of the investigation.

The inquest investigator shall determine if the arrest of the detained person was made in accordance with paragraphs (a), (b) and (c) of Section 5, Rule 113 of the Rules of Court. The inquest investigator may summarily examine the arresting officers on the circumstances surrounding the arrest or the apprehension of the detained person.

Should the inquest investigator, find the arrest was properly effected, the detained person shall be asked if he desires to avail himself of a preliminary investigation, and if he does, the consequences thereof must be explained to him adequately.

The detained person, with the assistance of his own counsel, shall then be made to execute a waiver of the provisions of Article 125 of the Revised Penal Code. Thereafter, the inquest investigator shall set the case for preliminary investigation, which shall be terminated within fifteen (15) days from the execution of waiver.

Where the detained person does not opt for a preliminary investigation or otherwise refuses to execute the required waiver, the inquest investigator shall proceed with the conduct of inquest proceeding, notwithstanding the absence of counsel, by examining the Sworn Statements/Affidavits of the complainant witnesses and other supporting evidence submitted.

If the inquest investigator finds that probable cause exists, he shall prepare the Resolution with the corresponding Information with the corresponding Recommendation that the same be filed in court. The inquest must be terminated within eighteen (18) hours from the time of the arrest.

Should the inquest investigator find the arrest was not made in accordance with Rule 113 of the Rules of Court, he shall:

a) Recommend the release of the person arrested or detained;

b) Prepare the Recommendation indicating the reasons for the action taken;

c) Serve the Order of release on the law enforcement officer having custody of the detained; HIESTA

d) Direct the office to serve upon the detainee the subpoena or notice of preliminary investigation, together with copies of the charge sheet or Complaint, Affidavits or Sworn Statements of the complainant and his witness and other supporting evidence;

e) Forward Recommendation, together with the record, to the Regional Election Director for appropriate action.

SECTION 8. Duty of Investigating Officer. — The preliminary investigation must be terminated within thirty (30) days after receipt of the Counter-Affidavits and other evidence of the respondents, and a Recommendation thereof shall be made.

(a) If the investigating officer finds no cause to hold the respondent for trial, he shall recommend dismissal of the Complaint.

(b) If the investigating officer finds probable cause to hold the respondent for trial, he shall prepare the Recommendation, and the corresponding Information wherein he shall certify under oath that he has examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused was informed of the Complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence.

(c) In either case, the investigating officer shall, within five (5) days from the rendition of his Recommendation, forward the records of the case to:

1) The Commission En Banc, in cases investigated by the Law Department or the Regional Election Director; or

2) The Regional Election Director, in cases investigated by the Assistant Regional Election Director, Regional Election Attorney, or Provincial Election Supervisor or any of the Commission's lawyers assigned in the field office.

All Recommendations prepared by the investigating officer shall be held in strict confidence and shall not be known to the parties, their counsel and/or any of unauthorized person until the same have been finally acted upon by the Regional Election Director or the Commission and approved for promulgation and release to the parties.

Any violation of the foregoing shall subject the investigating officer to administrative liability, without prejudice to his criminal liability. DcaCSE

SECTION 9. Duty of the Law Department, Regional Election Directors and Investigating Officers Upon Receipt of the Records. —

(a) In cases investigated by the lawyers in the Law Department, the Director of the Law Department shall review and evaluate the Recommendation of investigating officer, prepare a report and make a Recommendation to the Commission En Banc affirming, modifying or reversing the same within a period of thirty (30) days from receipt thereof. If the Commission En Banc approves the filing of an Information in court against the respondent/s, the Director of the Law Department shall prepare and sign the Information for immediate filing with the appropriate court.

(b) In cases investigated by the Assistant Regional Election Director, Regional Election Attorney, Provincial Election Supervisor, Election Officer or the field personnel of the Commission, the Regional Election Director shall review and evaluate the Recommendation of said legal officer within a period of thirty (30) days from receipt thereof. If the Recommendation of the investigating officer is approved by the Regional Election Director, he shall sign the Recommendation and transmit copies of his approval and the entire records of the case to the investigating officer concerned for appropriate action.

(c) If the Recommendation of the investigating officer to dismiss the case is reversed on the ground that a probable cause exists, the Regional Election Director shall transmit copies of his Order reversing the Recommendation of the investigating officer and the entire records of the case to the investigating officer concerned. Upon receipt thereof, the investigating officer concerned shall prepare the corresponding Information against the respondent/s without conducting another preliminary investigation and file the same with the proper court. If the Recommendation of the investigating officer to file an Information in court is reversed on the ground that a probable cause does not exist, the Regional Election Director shall transmit copies of his Order reversing the Recommendation of the investigating officer and the entire records of the case to the investigating officer concerned.

(d) In all cases, the Regional Director or the Commission En Banc, through the Office of the Clerk of the Commission, shall furnish the Law Department a copy of his Recommendation and/or Resolution, as the case may be, within five (5) days. DISTcH

SECTION 10. Promulgation. — In cases investigated by Assistant Regional Election Director, the Regional Election Attorney, Provincial Election Supervisor or the field personnel of the Commission, the Regional Election Director shall furnish the parties or their counsel a copy of the Resolution either by personal service or by registered mail.

In cases investigated by the Law Department and approved/disapproved by the Commission En Banc, the Clerk of the Commission shall furnish the parties or their counsel, a copy of the Resolution of the Commission En Banc approving or denying the Recommendation either by personal service or by registered mail.

SECTION 11. Motion for Reconsideration. — In Recommendations promulgated by the Regional Election Director, only one (1) Motion for Reconsideration, which shall be filed within fifteen (15) days from the receipt of the Recommendation, shall be allowed. Motions for Reconsideration shall be resolved within thirty (30) days from the receipt of the said motion. A Motion for Leave to file a second Motion for Reconsideration is strictly prohibited.

The Motion for Reconsideration shall state clearly and distinctly the grounds relied upon in support thereof, be verified, and accompanied by proof of service to the opposing party, and of payment of the filing fee in the amount of One Thousand Five Hundred Pesos (Php1,500.00).

The pendency of the Motion for Reconsideration shall not suspend the filing of Information in Court. Where the Information has already been filed in court, the Regional Election Director may not give due course to the Motion for Reconsideration until there is a showing that the movant has filed a motion with the court for suspension of the proceedings, and the court has granted such motion to suspend.

A Motion for Reconsideration of a Resolution of the Commission En Banc is prohibited.

SECTION 12. Petition for Review. — A party desiring to appeal from the Recommendation of the Regional Election Director may file a verified Petition for Review with the Commission En Banc, through the Office of the Clerk of the Commission, which shall be filed within fifteen (15) days from receipt of the Recommendation sought to be reviewed or of the Order denying the Motion for Reconsideration, accompanied by proof that the corresponding appeal fee in the amount of Five Thousand Pesos (Php5,000.00) has been paid. CHDTEA

The Petition for Review shall be verified by the petitioner/s and shall contain the following:

1. complete names and specific addresses of the parties;

2. the Election Case Number (EO No.), Fact Finding Investigation Number (FF INV No.), if any and title of the case including the offense charged in the Complaint or Information;

3. the venue of the preliminary investigation;

4. the specific material dates showing that it was filed on time;

5. a clear and concise statement of the facts, the assignment of errors, and the legal basis of the Petition for Review;

6. proof of service of a copy/ies of the Petition for Review to the adverse party/ies or counsel and the prosecution office concerned;

7. proof of payment of appeal fee;

8. the petitioner shall append to his Petition a legible duplicate original or certified true copy of the Resolution appealed from; and

9. legible copies of the Complaint, Affidavits/Sworn Statements (including their translations, if any, duly certified by the provincial/city prosecutor) and other evidence submitted by both parties in the preliminary investigation or re-investigation.

Evidence submitted for the first time on appeal shall not be admitted. A copy of the motion to defer proceedings shall likewise be attached to the Petition when an Information has already been filed in court.

The petitioner shall also submit together with the Petition, a Certification under Oath that he has not commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency. If there is such other action or proceedings, he must state the status of the same and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency thereof within five (5) days from the knowledge thereof. AIHTEa

The failure of the petitioner to comply with the foregoing requirements shall be sufficient ground for the dismissal thereof.

Subject to its discretion, the Commission En Banc may require the adverse party to submit his comment to the Petition for Review for a period not exceeding ten (10) days from receipt. Thereafter, the Petition for Review shall be deemed submitted for Resolution.

SECTION 13. Duty of Regional Election Director to Render Reports. — The Regional Election Director shall, within five (5) days from the rendition of his approval/disapproval on the Recommendation of investigating officers, submit a written report thereof, to the Commission, through the Law Department. They shall likewise submit a monthly report on the status of cases filed with and/or prosecuted by them or any of their investigating officers pursuant to the authority granted them under Section 2 of this Rule.

Prosecutors belonging to other prosecuting arms of the Government with concurrent authority with the Commission shall likewise submit a monthly report on the status of cases filed with and/or prosecuted by them covering election offenses committed within the election period of any election.

SECTION 14. Prosecution. — All election offenses cases shall be tried in the province, city or municipality where the offense was committed or any of its essential elements took place. All prosecutions for election offenses shall be prosecuted under the direct control and supervision of the COMELEC prosecutor.

SECTION 15. Immunity from Criminal Prosecution. — Under such terms and conditions as it may determine, the Commission may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of document or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Commission or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony.

SECTION 16. Repealing Clause. — This Resolution supersedes Rule 34 of the Comelec Rules of Procedure. All other Comelec Resolutions and issuances pertaining to investigation and prosecution of election offenses insofar as may be inconsistent herewith are hereby repealed or amended accordingly. DaCTcA

SECTION 17. Dissemination. — The Education and Information Department shall furnish copies of this Resolution to the Regional Election Directors, Assistant Regional Election Directors, Provincial Election Supervisors, Election Officers, and give it the widest possible dissemination. The Education and Information Department shall likewise cause the publication of this Resolution in two (2) daily newspapers of general circulation in the Philippines.

SECTION 18. Effectivity and Transitory Provisions. — This Resolution shall take effect on 01 July 2012 after its publication in two (2) newspapers of general circulation. Complaints filed prior to 01 July 2012 and remain unresolved shall be subject to Rule 34 of the Comelec Rules of Procedure prior to this amendment.

(SGD.) SIXTO S. BRILLANTES, JR.Chairman

(SGD.) RENE V. SARMIENTOCommissioner

(SGD.) LUCENITO N. TAGLECommissioner

(SGD.) ARMANDO C. VELASCOCommissioner

(SGD.) ELIAS R. YUSOPHCommissioner

(SGD.) CHRISTIAN ROBERT S. LIMCommissioner

AUGUSTO C. LAGMANCommissioner

Published in The Philippine Star on April 17, 2012.