G. Power to Prosecute Election Offenses (BP 881, Sec. 265, as amended by RA 9369; Exclude penal provisions)

E. Prosecution of Election Offenses [Exclude: Penal Provisions]

Former text of BP 881, Section 265, superseded by RA 9369: Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. Under Section 265 as amended by RA 9369: "SEC. 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”

Criminal Aspect

• Whether or not there is probable cause to charge a candidate for an election offense.
• The COMELEC, through its authorized legal officers, and other government prosecuting arms have concurrent authority to investigate and prosecute election offenses.
• If there is probable cause, the authorized prosecuting arm may file the criminal information before the proper court.
• Proceedings before the proper court demand a full blown hearing and require proof beyond reasonable doubt to convict.
• A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office.

Full List of Election Offenses Under Sec. 68 of the OEC; same grounds for disqualification:

Selected election-related acts under BP 881, Sections 68 and 261 (not all are Section 68 disqualification grounds):

• Vote-buying
• Acts of Terrorism
• Spending in excess of allowable limit
• Soliciting, receiving or making prohibited contributions
• Campaigning outside period
• Tamper with election propaganda
• Prohibited election propaganda
• Coercing subordinates to aid, campaign, or vote for a candidate
• Using threat, intimidation, terrorism, fraudulent devises
• Soliciting votes or electioneering during registration day and election day within polling place or within 30m radius
• Public official or employee who releases, disburses or expends public funds 45 days before election or 30 days before special election.
• Political party holds political conventions or meetings to nominate official candidates earlier than allowed period
• Destroying or cancelling a COC which has not been cancelled
• Misleading BEI by submitting false or spurious COC to the detriment of a candidate
• Receiving COC out of allowed time and making it appear it was filed on time; or coercing the officer to perform this act
• Interfering with Radio or TV broadcast of lawful political program
• Soliciting votes on election day.

Under the present law, the COMELEC and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses. (Arroyo v. Department of Justice, G.R. No. 199082, September 18, 2012).

Prescription of Election Offense:

• Election offenses prescribed after 5 years from the date of their commission.
• If the discovery of the offense is made in an election contest proceeding, the period of prescription shall commence on the date which the judgment in such proceedings becomes final and executory.