Republic of the Philippines
SUPREME COURT
Manila
MIGRANTE SECTORAL PARTY OF OVERSEAS FILIPINOS AND THEIR FAMILIES, REPRESENTED BY ITS CHAIRPERSON, CONCEPCION BRAGAS-REGALADO,
Petitioner,
- versus – G.R. No. 190126
Very Urgent Petition for Certiorari, Prohibition and Mandamus with Very Urgent Application for a Temporary Restraining Order and/or Preliminary Injunction
COMMISSION ON ELECTIONS,
Respondent.
x—————————————————-x
VERY URGENT PETITION
FOR CERTIORARI,
PROHIBITION
AND MANDAMUS
(WITH VERY URGENT APPLICATION
FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION)
PETITIONER, through the undersigned counsel, unto the Honorable Supreme Court, most respectfully states that:
STATEMENT OF THE CASE
1. This Petition is about the valid assertion of the party-list system of representation of overseas Filipinos workers. Petitioner seeks the nullification of the following Resolutions of respondent Commission on Elections: (1) En Banc Resolution No. 8679 dated October 13, 2009 which removed or cancelled the registration of petitioner Migrante Sectoral Party of Overseas Filipinos and their Families as a sectoral party under the party-list system; and (2) En Banc Resolution in SPP Case No. 09-003 (MP) dated November 17, 2009 affirming Resolution No. 8679 dated October 13, 2009 and dismissing the verified opposition filed by petitioner to said Resolution No. 8679.
2. The prayer for the declaration of respondent’s Resolution No. 8679 and Resolution in SPP Case No. 09-003 (MP) as null and void is anchored on the following crucial grounds, thus:
(a) First, respondent has issued Resolution No. 8679 without any prior notice and hearing, in patent violation of Section 6 of Republic Act No. 7941 or The Party-List System Act which clearly and categorically requires that the registration of a party under the party-list system may be removed or cancelled only after due notice and hearing;
(b) Second, the reason used by respondent in the removal or cancellation of petitioner’s registration is not included among the grounds enumerated under Section 6 of The Party-List System Act for the removal or cancellation of the registration of a party under the party-list system; and
(c) Third, the reason used by respondent in the removal or cancellation of petitioner’s registration is not within the scope of Section 6 (8) of The Party-List System Act.
Thus, respondent has committed grave abuse of discretion amounting to lack or excess of jurisdiction in the issuance of the foregoing assailed Resolutions.
3. This Petition is a special civil action for Certiorari, Prohibition and Mandamus brought under Rule 64 of the Rules of Court, in relation to Rule 65 of the said Rules, thus:
“RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT
Section 1. Scope.
This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit.
Sec. 2. Mode of review.
A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided.” (Emphasis supplied)
4. Moreover, under the circumstances obtaining in this case, petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law which will promptly and immediately relieve herein petitioner from the injurious effects of the assailed Resolutions, which are manifestly illegal.
On October 26, 2009, petitioner filed a verified opposition to respondent’s Resolution No. 8679, in accordance with said Resolution’s directive that any adversely affected party may file a verified opposition thereto on October 26, 2009.
On November 19, 2009, petitioner received respondent’s Resolution dated November 17, 2009 affirming Resolution No. 8679 and dismissing petitioner’s verified opposition.
Thus, petitioner’s verified opposition must be considered as the motion for consideration of Resolution No. 8679. And respondent’s Resolution dated November 17, 2009 affirming Resolution No. 8679 and dismissing petitioner’s verified opposition must already be considered as the Resolution denying the motion for reconsideration. This is because the issues that have been duly raised in petitioner’s verified opposition are the same issues that would have been raised in a motion for reconsideration, if one is even necessary. Hence, to avoid any further delay that would prejudice the interests of petitioner, its verified opposition must be considered as the motion for reconsideration of Resolution No. 8679. Besides, both assailed resolutions have already been decided upon by respondent En Banc.
Furthermore, respondent’s prescribed period for the filing of manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections already starts on November 20, 2009, the date of filing of this Petition, until December 1, 2009 – only seven (7) working days as November 30, 2009 is a regular holiday. And only those party-lists considered as qualified by respondent and have filed within the prescribed period their respective manifestations of intent to participate shall be included by respondent in the printing of official ballots, which is necessary because May 10, 2010 elections shall already be automated.
Hence, the urgent necessity for the resolution of the questions raised herein and any further delay would prejudice the interests of petitioner. Verily, there is extreme urgency for relief.
The circumstances obtaining in this case show that a motion for reconsideration separate from the verified opposition filed by petitioner and already dismissed by respondent would be useless, as respondent has been very vocal in the media that respondent would no longer reverse its decision.
Petitioner was deprived of the specific and definite due process required under Section 6 of The Party-List System Act, which clearly and categorically requires that the registration of a party under the party-list system may be removed or cancelled only after due notice and hearing, as respondent has removed or cancelled the registration of petitioner under the party-list system without any prior notice and hearing.
The issues raised herein are one purely of law, and public interest is necessarily involved in this Petition because it concerns the party-list representation of the marginalized and underrepresented sector of over ten million overseas Filipino workers and their families. And such genuine sectoral representation has been deprived to them by respondent through its assailed Resolutions.
These exceptions to the rule that certiorari as a special civil action will not lie unless a motion for reconsideration is filed, if one is even necessary considering the circumstances obtaining in this Petition, are well-recognized in this jurisdiction, thus:
“Thus, in Abraham v. NLRC [353 SCRA 739 (2001)], the Court ruled:
“Generally, certiorari as a special civil action will not lie unless a motion for reconsideration is filed before the respondent tribunal to allow it an opportunity to correct its imputed errors. However, the following have been recognized as exceptions to the rule:
(a) where the order is a patent of nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or where public interest is involved.” [METRO TRANSIT ORGANIZATION, INC. v. THE COURT OF APPEALS, G.R. No. 142133, November 19, 2002] (Emphasis supplied)
5. Petitioner Migrante Sectoral Party of Overseas Filipinos and their Families, represented herein by its Chairperson, Concepcion Bragas-Regalado, is a party directly and adversely affected by respondent’s assailed Resolutions.
6. Petitioner thus humbly prays that the Honorable Court issue a judgment:
(a) Declaring respondent’s Resolution No. 8679 dated October 13, 2009, in so far as petitioner Migrante Sectoral Party of Overseas Filipinos and their Families is concerned, as null and void;
(b) Declaring respondent’s Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP) as null and void;
(c) Enjoining respondent from implementing Resolution No. 8679 dated October 13, 2009, in so far as petitioner is concerned, and Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP);
(d) Commanding respondent to allow petitioner to validly file its manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections, and to give due course to the same; and
(e) Declaring petitioner as qualified and eligible to participate in the May 10, 2010 party-list elections.
7. Petitioner is likewise praying for the issuance of a temporary restraining order and/or a preliminary injunction due to the seriousness and extreme urgency of the matters involved, as well as the grave and irreparable injuries that are sustained and will continue to be sustained by petitioner if the assailed Resolutions are continued to be implemented by respondent until the end of December 1, 2009, the last day of the filing of manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections, thus:
(a) That petitioner replead by reference the foregoing allegations as well as the allegations hereunder, as part of this application;
(b) That grave and irreparable injuries result to petitioner which has sustained direct and personal injuries and will continue to sustain direct and personal injuries by the continued implementation of the assailed Resolutions;
(c) That grave and irreparable injuries result to petitioner if it would not be able to validly file its manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections within the prescribed period from November 20, 2009 until December 1, 2009;
(d) That grave and irreparable injuries result to petitioner and over ten million overseas Filipino workers and their families as the continued implementation of the assailed Resolutions would deprive them of genuine sectoral representation;
(e) That petitioner and millions of overseas Filipino workers and their families are entitled to the relief demanded in the instant Petition, and part of such relief consists in restraining respondent from the continued implementation of the assailed Resolutions especially during the period from November 20, 2009 to December 1, 2009, otherwise the instant Petition may be rendered ineffectual;
(f) That the continued implementation of the assailed Resolutions especially during the prescribed period from November 20, 2009 to December 1, 2009 would work injustice to petitioner and millions of overseas Filipino workers and their families, as the assailed Resolutions would deprive them of genuine sectoral representation;
(g) That petitioner must be allowed to validly file its manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections during the prescribed period from November 20, 2009 until December 1, 2009 in order for petitioner to be included in the printing of official ballots for the automated elections next year. Otherwise, the absence of the name of petitioner in the printed official ballots shall make the instant Petition ineffectual. Thus, the necessity for a temporary restraining order and/or preliminary injunction in order not to render the judgment ineffectual; and
(h) There is no other plain, speedy, and adequate remedy to address these pervasive injuries to the petitioner and to the millions of overseas Filipino workers and their families before this Petition could be heard by the Honorable Court.
Hence, premises considered, petitioner is entitled to the issuance of a temporary restraining order and/or preliminary injunction to restrain respondent from the continued implementation of the assailed Resolutions especially during the period from November 20, 2009 to December 1, 2009.
THE PARTIES
THE PETITIONER
8. Petitioner MIGRANTE SECTORAL PARTY OF OVERSEAS FILIPINOS AND THEIR FAMILIES (hereinafter referred to as “Petitioner”), represented herein by its Chairperson, Concepcion Bragas-Regalado, in accordance with petitioner’s Executive Board Resolution No. 09-09 dated November 19, 2009, is a sectoral party registered under the party-list system since January 6, 2004. Its office address is at 63 Narra St., Brgy. Claro, Project 3, Quezon City, Philippines where it may be served notices, orders, resolutions, judgment and other court processes.
A certified true and correct copy of petitioner’s Executive Board Resolution No. 09-09 dated November 19, 2009 authorizing its Chairperson, Concepcion Bragas-Regalado, to represent petitioner in this Petition is attached hereto as Annex “A”.
THE RESPONDENT
9. Respondent COMMISSION ON ELECTIONS (hereinafter referred to as “Respondent”) is the quasi-judicial body which has issued Resolution No. 8679 dated October 13, 2009 and Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP). Respondent’s office address is at Palacio Del Gobernador Building, Intramuros, Manila where it may be served notices, orders, resolutions, judgment and other court processes.
STATEMENT OF FACTS
10. Petitioner is a sectoral party registered under the party-list system since January 6, 2004 under SPP No. 03-33, and has been qualified to participate in the May 10, 2004 and May 14, 2007 party-list elections.
11. Petitioner participated during the May 10, 2004 elections and obtained 0.8644-percent of the votes cast under the party-list system.
12. Petitioner did not participate during the May 14, 2007 elections, and even formally informed respondent in a letter dated March 6, 2007, attaching therewith the petitioner’s Executive Board Resolution No. 02-06 dated December 17, 2006, of its intention not to participate during the May 14, 2007 elections, as petitioner shall consolidate and strengthen its ranks and membership.
13. Petitioner has the intention to participate in the May 10, 2010 party-list elections.
14. On October 13, 2009, respondent En Banc promulgated Resolution No. 8679 which removed or cancelled petitioner’s registration as a party under the party-list system on the ground of petitioner’s failure to obtain two-percent of the votes cast in one (1) election, 2004 elections, and failure to participate in one (1) election, 2007 elections.
15. Said Resolution No. 8679 directed that any national, regional or sectoral party, organization or coalition adversely affected thereby may file a verified opposition thereto on October 26, 2009.
16. Petitioner became aware of the existence of Resolution No. 8679 only from media reports stating that petitioner’s registration as a party under the party-list system has already been removed or cancelled by respondent.
17. On October 26, 2009, petitioner filed its verified opposition to Resolution No. 8679, and docketed as SPP Case No. 09-003 (MP).
18. Only on October 26, 2009, hours after petitioner filed its verified opposition, did petitioner receive a copy of Resolution No. 8679 sent through registered mail by respondent.
The original copy of Resolution No. 8679 dated October 13, 2009 received by petitioner from respondent is attached hereto as Annex “B”.
A copy of petitioner’s verified opposition dated October 26, 2009 and docketed as SPP Case No. 09-003 (MP) is attached hereto as Annex “C”.
19. Prior to the respondent’s promulgation of Resolution No. 8679, petitioner did not receive any notice from respondent as to the latter’s initiative to remove or cancel petitioner’s registration as a party under the party-list system, as respondent did not send any notice to petitioner. Respondent likewise did not conduct any hearing prior to the promulgation of Resolution No. 8679.
20. On November 17, 2009, twenty-two (22) days since the filing of petitioner’s verified opposition, petitioner filed a Motion for Early Disposition of Case, as the continued delay in the resolution of petitioner’s verified opposition adversely affects petitioner and limits the time available to petitioner to avail of remedies under the law, in the event of an adverse decision, before the lapse of the November 20, 2009 to December 1, 2009 prescribed period for the filing of manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections.
A copy of petitioner’s Motion for Early Disposition of Case dated November 17, 2009 is attached hereto as Annex “D”.
21. On November 19, 2009, one day before the start of the above-stated prescribed period, petitioner received respondent En Banc Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP) affirming Resolution No. 8679, in so far as petitioner is concerned, and dismissing petitioner’s verified opposition.
The original copy of Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP) received by petitioner from respondent is attached hereto as Annex “E”.
22. Prior to the respondent’s promulgation of Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP), petitioner likewise did not receive any notice from respondent regarding petitioner’s verified opposition, as respondent did not send any notice to petitioner for any hearing on the verified opposition. Again, respondent did not conduct any hearing prior to the promulgation of such Resolution dated November 17, 2009.
23. The respondent’s prescribed period for the filing of manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections is from November 20, 2009 to December 1, 2009, only seven (7) working days as November 30, 2009 is a regular holiday.
24. As the May 10, 2010 elections shall be an automated election, the names of candidates and party-lists have to be printed in the official ballots. Those absent in the printed official ballots cannot be voted upon by the voters.
25. The assailed Resolutions have effectively deprived more than ten million overseas Filipino workers and their families of genuine sectoral representation under the party-list system for purposes of the May 10, 2010 elections.
Hence, this Petition.
STATEMENT OF MATERIAL DATES
26. On October 13, 2009, respondent En Banc promulgated Resolution No. 8679 which removed or cancelled the registration of petitioner as a party under the party-list system on the ground of petitioner’s failure to obtain two-percent of the votes cast in one (1) election, 2004 elections, and failure to participate in one (1) election, 2007 elections.
27. Said Resolution No. 8679 directed that any national, regional or sectoral party, organization or coalition adversely affected thereby may file a verified opposition thereto on October 26, 2009.
28. On October 26, 2009, petitioner filed its verified opposition to Resolution No. 8679, and docketed as SPP Case No. 09-003 (MP).
29. Only on October 26, 2009, hours after petitioner filed its verified opposition, did petitioner receive a copy of Resolution No. 8679 sent through registered mail by respondent.
30. On November 17, 2009, petitioner filed a Motion for Early Disposition of Case.
31. On November 19, 2009, petitioner received respondent En Banc Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP) affirming Resolution No. 8679, in so far as petitioner is concerned, and dismissing petitioner’s verified opposition.
32. Thus, this Petition is well within the prescribed period of thirty (30) days under Rule 64 of the Rules of Court within which to file the present Petition.
GROUNDS
I.
RESPONDENT COMMISSION ON ELECTIONS ISSUED RESOLUTION NO. 8679 DATED OCTOBER 13, 2009 WITHOUT ANY PRIOR NOTICE AND HEARING, IN PATENT VIOLATION OF SECTION 6 OF REPUBLIC ACT NO. 7941 OR THE PARTY-LIST SYSTEM ACT WHICH CLEARLY AND CATEGORICALLY REQUIRES THAT THE REGISTRATION OF A PARTY UNDER THE PARTY-LIST SYSTEM MAY BE REMOVED OR CANCELLED ONLY AFTER DUE NOTICE AND HEARING.
II.
THE REASON USED BY RESPONDENT IN THE REMOVAL OR CANCELLATION OF PETITIONER’S REGISTRATION IS NOT INCLUDED AMONG THE GROUNDS ENUMERATED UNDER SECTION 6 OF THE PARTY-LIST SYSTEM ACT FOR THE REMOVAL OR CANCELLATION OF THE REGISTRATION OF A PARTY UNDER THE PARTY-LIST SYSTEM.
III.
THE REASON USED BY RESPONDENT IN THE REMOVAL OR CANCELLATION OF PETITIONER’S REGISTRATION IS NOT WITHIN THE SCOPE OF SECTION 6 (8) OF THE PARTY-LIST SYSTEM ACT.
DISCUSSION
I.
RESPONDENT COMMISSION ON ELECTIONS ISSUED RESOLUTION NO. 8679 DATED OCTOBER 13, 2009 WITHOUT ANY PRIOR NOTICE AND HEARING, IN PATENT VIOLATION OF SECTION 6 OF REPUBLIC ACT NO. 7941 OR THE PARTY-LIST SYSTEM ACT WHICH CLEARLY AND CATEGORICALLY REQUIRES THAT THE REGISTRATION OF A PARTY UNDER THE PARTY-LIST SYSTEM MAY BE REMOVED OR CANCELLED ONLY AFTER DUE NOTICE AND HEARING.
Respondent Commission on Elections issued Resolution No. 8679 dated October 13, 2009 without any prior notice and hearing, in patent violation of Section 6 of The Party-List System Act which clearly and categorically requires that the registration of a party under the party-list system may be removed or cancelled only after due notice and hearing.
33. Section 6 of The Party-List System Act is clear and categorical about the requirements of notice and hearing prior to the removal or cancellation of the registration of any national, regional or sectoral party, organization or coalition, thus:
“Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:” (Emphasis supplied)
34. The foregoing provision is unequivocal about such requirement of prior notice and hearing, whether such removal or cancellation of the registration of a party-list is done motu proprio or upon verified complaint of any interested party.
35. The Party-List System Act, a statute enacted by the legislature, provides for such a specific and definite requirement of prior notice and hearing. This statutory requirement must be complied with by respondent at all times, as respondent is the proper body designated to implement such provision. To this duty, respondent has failed miserably at the expense of petitioner and over ten million overseas Filipino workers and their families.
36. Any act of respondent less that is clearly and categorically provided by The Party-List System Act on the requirement of prior notice and hearing is a patent violation of the said statute, and therefore cannot be countenanced. This is because what is at stake is not simply the registration of a party under the party-list system but it is really the representation of the marginalized and underrepresented sectors of our society.
37. This specific and definite statutory requirement of prior notice and hearing does not simply mean “a fair and reasonable opportunity to explain and air one’s side”.
This specific and definite statutory requirement of prior notice and hearing means “a fair and reasonable opportunity to explain and air one’s side through due notice and hearing prior to any decision that may be rendered by a tribunal”. Indeed, to this end, respondent has failed miserably.
38. In defending its position of not complying with the statutory requirement of prior notice and hearing before it removed or cancelled petitioner’s registration as a party under the party-list system through its Resolution No. 8679, respondent stated the following in its Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP), thus:
“xxx. Resolution No. 8679 did not automatically delete from the list of accredited party-list organizations those listed therein. In fact, it invited any national, sectoral party, organization or coalition affected adversely to file an opposition to the resolution. In this case, the Commission fulfills the mandate of the law to give due notice and hearing to those affected by the resolution so much so that only those who failed to file an opposition and those whose opposition is bereft of merit would be deleted from the list mentioned.
The requirements of due process are satisfied when the parties are afforded a fair and reasonable opportunity to explain and air their side. The Commission has done precisely that by giving the organizations, associations and coalitions deleted from the list the opportunity to file their verified oppositions thereto; particularly, by letting Oppositor MIGRANTE file this Opposition.” (Emphasis supplied)
39. Respondent is at a loss for words; respondent posited the view that “Resolution No. 8679 did not automatically delete” petitioner from the list of accredited parties under the party-list system. And that, according to respondent, it has in fact provided petitioner the opportunity to be heard when it allowed petitioner “to file its verified opposition” to Resolution No. 8679.
This excuse is too lame. The glaring fact remains that respondent has already and unequivocally removed or cancelled the registration of petitioner as a party under the party-list system when respondent issued Resolution No. 8679. Respondent has already made a clear and categorical decision of removing or cancelling petitioner’s registration through Resolution No. 8679 sans a prior notice and hearing.
Providing petitioner the opportunity to be heard on the matter through its verified opposition was already after the fact of the unequivocal removal or cancellation of its registration as a party under the party-list system.
Thus, petitioner’s verified opposition is, in essence, already a motion for reconsideration of respondent’s Resolution No. 8679. And a motion for reconsideration is a remedy entirely different and distinct from the remedy or remedies available to petitioner prior to the removal or cancellation of its registration as a party under the party-list system.
Even the resolution of petitioner’s verified opposition was made by respondent absent any notice and hearing.
40. Respondent really is at a loss for words, and is even utterly confused.
Respondent says that, “In this case, the Commission fulfills the mandate of the law to give due notice and hearing to those affected by the resolution so much so that only those who failed to file an opposition and those whose opposition is bereft of merit would be deleted from the list mentioned.
Then on the succeeding paragraph, respondent says, “The requirements of due process are satisfied when the parties are afforded a fair and reasonable opportunity to explain and air their side. The Commission has done precisely that by giving the organizations, associations and coalitions deleted from the list the opportunity to file their verified oppositions thereto; particularly, by letting Oppositor MIGRANTE file this Opposition.”
Verily, while the above-quoted first paragraph has made a wrongful claim that “only those who failed to file an opposition and those whose opposition is bereft from merit would be deleted from the list”, the second quoted paragraph has clearly admitted that the organizations, associations and coalitions which have been given the opportunity to file a verified opposition have already been deleted from the list even prior to such opportunity to file a verified opposition.
Thus, petitioner’s verified opposition is, in essence, already a motion for reconsideration of respondent’s Resolution No. 8679, as such remedy was available to petitioner only after the fact of removal or cancellation of its registration, and not before such removal or cancellation.
41. Hence, the ordinary requirements of due process of simply the “fair and reasonable opportunity to explain and air one’s side” are not applicable in this case.
To reiterate, for fear of being redundant, the specific and definite statutory requirement of prior notice and hearing does not simply mean “a fair and reasonable opportunity to explain and air one’s side”.
This specific and definite statutory requirement of prior notice and hearing means “a fair and reasonable opportunity to explain and air one’s side through due notice and hearing prior to any decision that shall be rendered by a tribunal” and not after any decision that has already been rendered by a tribunal.
42. Thus, absent such clear and categorical compliance by the respondent of the foregoing requirement under Section 6 of The Party-List System Act on prior notice and hearing in the removal or cancellation of the registration of petitioner as a party under the party-list system, the assailed Resolutions are clearly illegal and a patent nullity.
II.
THE REASON USED BY RESPONDENT IN THE REMOVAL OR CANCELLATION OF PETITIONER’S REGISTRATION IS NOT INCLUDED AMONG THE GROUNDS ENUMERATED UNDER SECTION 6 OF THE PARTY-LIST SYSTEM ACT FOR THE REMOVAL OR CANCELLATION OF THE REGISTRATION OF A PARTY UNDER THE PARTY-LIST SYSTEM.
The reason used by respondent in the removal or cancellation of petitioner’s registration is not included among the grounds enumerated under Section 6 of The Party-List System Act for the removal or cancellation of the registration of a party under the party-list system.
43. In Resolution No. 8679, respondent has removed or cancelled petitioner’s registration as a party under the party-list system on the following reason, thus:
“Participation/Percentage of Votes
May 10, May 14, Reasons for
2004 2007 Deletion
Elections Elections
xxx
19. MIGRANTE 0.8644% Did not Failed to get two
participate percent of the votes
cast in 2004 and did
not participate in the
2007 elections”
(Emphasis supplied)
44. With all due respect, “failure to obtain at least two-percent of the votes cast under the party-list system in one (1) election and failure to participate in one (1) election” cited by respondent in Resolution No. 8679 is not included among the grounds enumerated under The Party-List System Act for the removal or cancellation of the registration of a party under the party-list system. The grounds for the removal or cancellation of such registration are clearly and categorically spelled under Section 6 of The Party-List System Act, thus:
“Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:
It is a religious sect or denomination, organization or association organized for religious purposes;
It advocates violence or unlawful means to seek its goal;
It is a foreign party or organization;
It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;
It violates or fails to comply with laws, rules or regulations relating to elections;
It declares untruthful statements in its petition;
It has ceased to exist for at least one (1) year; or
It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.” (Emphasis supplied)
45. Clearly, “failure to get two-percent of the votes cast in one (1) election and failure to participate in one (1) election” is nowhere among the grounds enumerated above. There is nothing in the above enumerated grounds which state that “failure to get two-percent of the votes cast in one (1) election and failure to participate in one (1) election” is a ground for the removal or cancellation of the registration of a party under the party-list system.
46. Thus, as the reason cited and used by respondent against petitioner in the removal or cancellation of its registration as a party under the party-list system is not a ground provided for by The Party-List System Act, the assailed Resolutions are clearly illegal and a patent nullity.
III.
THE REASON USED BY RESPONDENT IN THE REMOVAL OR CANCELLATION OF PETITIONER’S REGISTRATION IS NOT WITHIN THE SCOPE OF SECTION 6 (8) OF THE PARTY-LIST SYSTEM ACT.
The reason used by respondent in the removal or cancellation of petitioner’s registration is not within the scope of Section 6 (8) of The Party-List System Act.
47. The second and third whereas clauses in Resolution No. 8679 have mentioned Section 6 (8) of The Party-List System Act, thus:
“WHEREAS, Section 6, item no. 8 of Republic Act No. 7941, otherwise known as the Party-List System Act, provides:
Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:
xxx
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.
WHEREAS, Comelec Resolution No. 2847 promulgated 25 June 1996 entitled: “In Re: Rules and Regulations Governing the Election of the Party-List Representatives through the Party-List System”, which states:
Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:
xxx
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.” (Emphasis supplied)
That is all there is to it. The said clauses simply mentioned said Section 6 (8), and nothing more.
48. Then the fifth and last whereas clause went on simply stating that pursuant to the powers granted to respondent, it was ordering the deletion of twenty-six (26) party-lists, including petitioner, from the list of registered national, regional or sectoral parties, organizations or coalitions, and thereby stating the respective reasons for such deletion across the respective names of the deleted party-lists, thus:
“NOW, THEREFORE, pursuant to the powers granted by the Constitution, the Omnibus Election Code, Republic Act No. 7941 and other election, the Commission hereby orders:
- To DELETE the following party-lists from the list of registered national, regional or sectoral parties, organizations or coalitions:
Participation/Percentage of Votes
May 10, May 14, Reasons for
2004 2007 Deletion
Elections Elections
xxx
19. MIGRANTE 0.8644% Did not Failed to get two
participate percent of the votes
cast in 2004 and did
not participate in the
2007 elections”
(Emphasis supplied)
That is all there is to it. Though Section 6 (8) of The Party-List System Act has been mentioned twice in Resolution No. 8679, respondent, however, has used a reason against petitioner different from said Section 6 (8), as already discussed above.
49. Moreover, Resolution No. 8679 does not state in clear and categorical terms whether the actual reason used by respondent in the removal or cancellation of petitioner’s registration is within the scope of Section 6 (8) of The Party-List System Act mentioned twice in said Resolution.
50. The fact is, Resolution No. 8679, in its fourth whereas clause, has impliedly stated that the reason “failure to obtain two-percent of the votes cast in one (1) election and failure to participate in one (1) election” is not within the scope of Section 6 (8) of The Party-List System Act, thus:
“WHEREAS, a party registered for the two (2) preceding elections shall be considered to have failed to obtain at least two per centum (2%) of the votes cast under the party-list system if the latest “Party-List Canvass Reports” for said elections show that the percentage obtained by said party did not reach two per centum (2%) of the votes cast therein. However, this shall not apply if a party, although receiving less than two per centum (2%) of the votes cast under the party-list system in the May 2007 National Elections, was allocated a seat during said election pursuant to the Decision of the Supreme Court in the case of Barangay Association for National Advancement and Transparency (BANAT) vs. Commission on Elections, G.R. No. 179271, and Bayan Muna, A Teacher, and Abobo vs. Commission on Elections, G.R. No. 179295, as we as, the Resolutions of the Commission implementing the said Decision.” (Emphasis supplied)
51. The said fourth whereas clause is clear that a party-list shall be considered to have failed to obtain at least two-percent of the votes cast under the party-list system if the latest “Party-List Canvass Reports” for the two (2) preceding elections show that the percentage obtained by said party-list did not reach two-percent of the votes cast therein.
52. Thus, only party-lists which participated in said two (2) preceding elections but failed to obtain at least two-percent of the votes cast under the party-list system are considered to have failed to obtain such certain percentage of votes. This must be so because the said fourth whereas clause has referred to “Party-List Canvass Reports” showing the failure of party-lists to obtain two-percent of the votes cast under the party-list system. Only party-lists which participated in an election are necessarily included in “Party-List Canvass Reports”, and party-lists which did not participate in an election are not included therein precisely because said party-lists did not participate in an election.
53. Hence, a party-list is considered to have failed to obtain at least two-percent of the votes cast under the party-list system in an election only if said party-list has participated in said election and has failed to obtain at least two-percent of the votes cast under the party-list system.
Yes, petitioner participated in the May 2004 elections and failed to obtain at least two-percent of the votes cast under the party-list system. That is only one instance.
And in the May 2007 elections, petitioner did not participate therein, thus not included in the “Party-List Canvass Report” for the May 2007 elections. Hence, petitioner is not considered to have failed to obtain at least two-percent of the votes under the party-list system in the May 2007 elections because petitioner did not participate therein and is not included in the “Party-List Canvass Report” for said particular election.
Thus, petitioner failed to obtain at least two-percent of the votes cast under the party-list system only once, in the May 2004 elections, and not twice.
54. Section 6 (8) of The Party-List System Act is clear and categorical that the ground for the removal or cancellation of the registration of a party under the party-list system is “failure to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections”. Again, petitioner has failed to obtain at least two-percent of the votes cast under the party-list system only once, not twice.
55. Thus, there is no reason to remove or cancel the registration of petitioner as a party under the party-list system.
56. To reiterate, the above-quoted provision under Section 6 (8) of The Party-List System Act provides two (2) instances by which the registration of a party, organization or coalition under the party-list system may be removed or cancelled, thus:
First, if a party, organization or coalition fails to participate in the last two (2) preceding elections for the constituency in which it has registered; or
Second, if a party, organization or coalition fails to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections for the constituency in which it has registered.
57. The last two (2) preceding elections prior to the May 2010 party-list elections were the May 2004 and May 2007 party-list elections. Petitioner participated in the May 2004 party-list elections but did not participate only in the May 2007 party-list elections. Thus, petitioner did not fail to participate in the last two (2) preceding elections, as petitioner failed to participate in only one (1) preceding election – the May 2007 party-list elections – since petitioner participated in the May 2004 party-list elections. Thus, the first instance above does not apply against petitioner.
58. The second instance states the failure to obtain a certain percentage of votes – at least two per centum (2%) of the votes cast under the party-list system – in two (2) preceding elections. Logically, since the second instance speaks of “failure to obtain a certain percentage of votes,” it presupposes that the concerned party, organization or coalition has participated in the elections by which it has failed to obtain such a certain percentage of votes.
How could the concerned party, organization or coalition under the party-list system have the chance and opportunity to obtain such a certain percentage of votes if it did not participate in an election in the first place?
And a party under the party-list system is allowed not to participate in a party-list election but only once; what is prohibited and considered a ground for the removal or cancellation of registration of a party under the party-list system is failure to participate in the last two (2) preceding elections.
59. And such participation in an election by which the concerned party, organization or coalition has failed to obtain such a certain percentage of votes refers – under the second instance – to participation in two (2) preceding elections.
60. Again, prior to the May 2010 party-elections, petitioner participated in only one (1) preceding election – the May 2004 party-list elections – by which it failed to obtain at least two per centum (2%) of the votes cast under the party-list system.
Petitioner has participated in only one (1) preceding election, and not in two (2) preceding elections. Thus, petitioner did not fail to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections, as petitioner has participated in only one (1) preceding election by which petitioner has failed to obtain at least two per centum (2%) of the votes cast under the party-list system. Thus, the second instance likewise does not apply against petitioner.
61. Section 6 (8) of The Party-List System Act states “last two (2) preceding elections” for non-participation or “two (2) preceding elections” for failure to obtain at least two-percent of the votes cast.
Not one (1) but last two (2) preceding elections as instances of failure to participate; not one (1) but two (2) preceding elections as instances of failure to obtain at least two (2) percent of the votes cast.
62. Under Section 6 (8) of The Party-List System Act, the failure to participate and the failure to obtain a certain percentage of votes are two different classifications.
Non-participation is non-participation in an election.
Failure to obtain a certain percentage of votes is failure to obtain a certain percentage of votes. In failure to obtain a certain percentage of votes, a party under the party-list system has to participate in an election precisely to obtain votes, and such votes shall be counted. And if the votes obtained are less than two-percent, such party fails to obtain said certain percentage of votes.
63. How can a non-participating party be considered to have failed to obtain a certain percentage of votes if said party did not participate in an election in the first place, and there are no votes for said party to speak of from the beginning?
64. How can a party lose an election which such party did not join and contest from the beginning? And this is considering the fact that The Party-List System Act allows a party under the party-list system not to participate in a party-list election but only once; what is prohibited and considered a ground for the removal or cancellation of registration of a party under the party-list system is failure to participate in the last two (2) preceding elections.
That is why the non-participation and the failure to obtain a certain percentage of votes are two different classifications under Section 6 (8) of The Party-List System Act.
65. Verily, any of the two (2) instances above under Section 6 (8) of The Party-List System Act by which the registration of a party, organization or coalition under the party-list system may be removed or cancelled does not apply against petitioner.
66. With all due respect, petitioner humbly submits that it should be allowed and be considered qualified and eligible to participate in the May 10, 2010 party-list elections.
Respondent’s reliance upon the case of Philippine Mine Safety & Environment Association (MINERO) v. Commission on Elections (G.R. No. 177548, May 10, 2007) is misplaced.
67. In dismissing petitioner’s verified opposition, respondent has invoked for the first time the case of Philippine Mine Safety & Environment Association (MINERO) v. Commission on Elections (G.R. No. 177548, May 10, 2007) in respondent En Banc Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP), which likewise affirmed respondent En Banc Resolution No. 8679, in so far as petitioner is concerned.
68. The case of MINERO is a Supreme Court Minute Resolution promulgated on May 10, 2007 and signed by the Supreme Court Clerk of Court, Ma. Luisa D. Villarama.
69. Petitioner humbly submits that respondent’s reliance upon the foregoing case is misplaced. Petitioner in said case, MINERO, went to the Honorable Court on a petition for mandamus with prayer for preliminary injunction “to compel respondent Commission on Elections to include petitioner in the Certified List for the 2007 Party-List Elections.”
MINERO claimed that “under The Party-List System Act, all it has to do is manifest its intent to participate in the 2007 party-list elections since it is already registered and COMELEC is duty bound to certify it.”
70. Thus, the sole issue in the case of MINERO is whether or not respondent COMELEC is duty bound to certify MINERO for the May 2007 party-list elections.
Such issue delved only on the discretionary powers of respondent COMELEC, no more, no less.
That is all there is to it.
71. The instant Petition, however, is raising several issues different from the sole issue raised in the case of MINERO, thus:
(a) Whether or not respondent Commission on Elections committed grave abuse of discretion amounting to lack or excess of jurisdiction in the removal or cancellation of the registration of petitioner as a party under the party-list system without prior notice and hearing clearly mandated under Section 6 of The Party-List System Act;
(b) Whether or not failure to obtain at least two-percent of the votes cast under the party-list system in one election and failure to participate in one election is included among the grounds for the removal or cancellation of the registration of a party under the party-list system enumerated under Section 6 of The Party-List System Act; and
(c) Whether or not failure to obtain at least two-percent of the votes cast under the party-list system in one election and failure to participate in one election is within the scope of Section 6 (8) of The Party-List System Act.
The foregoing issues in the instant Petition have not been squarely ruled upon in the case of MINERO.
72. Thus, petitioner most respectfully submits that respondent’s reliance upon the case of MINERO is misplaced. MINERO’s declaration that, “Since petitioner by its own admission failed to get 2% of the votes in 2001 and did not participate at all in the 2004 elections, it necessarily failed to get at least two per centum (2%) of the votes cast in the two preceding elections. COMELEC, therefore, is not duty bound to certify it.”, is simply in relation to the sole issue on respondent COMELEC’s discretionary powers raised in the case of MINERO.
That is all there is to it.
73. Besides, petitioner most humbly submits that MINERO’s declaration that, “Since petitioner by its own admission failed to get 2% of the votes in 2001 and did not participate at all in the 2004 elections, it necessarily failed to get at least two per centum (2%) of the votes cast in the two preceding elections.”, is merely a conclusion of law which is not elucidated nor explained in the case of MINERO on how such a conclusion was arrived at.
74. Moreover, petitioner most humbly submits that in case of doubt in the interpretation of Section 6 (8) of The Party-List System Act, if there is any, it must be resolved in favor of the party registered under the party-list system. This is necessary in order to give full effect to the wisdom, intent and spirit of the party-list system of representation for the marginalized and underrepresented sectors of our society.
Otherwise, a “fault-finding” interpretation adverse to the party-list system of representation may render the party-list system of representation itself ineffectual.
Otherwise, the truism that overseas Filipino workers are the present heroes of our society may have dried of substance and importance.
PRAYER
WHEREFORE, premises considered, Petitioner most respectfully prays of the Honorable Court the following:
1. That this Petition be given due course;
2. That a Temporary Restraining Order and/or a Preliminary Injunction be issued to restrain respondent Commission on Elections from implementing Resolution No. 8679 dated October 13, 2009 and Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP), especially during the period from November 20, 2009 to December 1, 2009 in order for petitioner Migrante Sectoral Party of Overseas Filipinos and their Families to validly file its manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections during the said period;
3. That after notice and hearing, a final order is issued:
(a) Declaring respondent’s Resolution No. 8679 dated October 13, 2009, in so far as petitioner is concerned, as null and void;
(b) Declaring respondent’s Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP) as null and void;
(c) Enjoining respondent from implementing Resolution No. 8679 dated October 13, 2009 in so far as petitioner is concerned, and Resolution dated November 17, 2009 in SPP Case No. 09-003 (MP);
(d) Commanding respondent to allow petitioner to validly file its manifestation of intent to participate in the party-list system of representation in the May 10, 2010 elections, and to give due course to the same; and
(e) Declaring petitioner as qualified and eligible to participate in the May 10, 2010 party-list elections.
Petitioner likewise prays for such other reliefs as are just and equitable under the circumstances.
RESPECTFULLY SUBMITTED. Quezon City for Manila, 20 November 2009.
JULIUS GARCIA MATIBAG
Counsel for Petitioner
Roll of Attorneys No. 55254
IBP 773865, 03-30-09, Oriental Mindoro
PTR 2598006, 01-13-09, Oriental Mindoro
Admitted to Bar, 2008
MCLE not yet required
Third Floor, Erythrina Building,
No. 1 Matatag cor. Maaralin Sts.,
Central District, Quezon City
(02) 920.6660, (02) 927.2812
Copy furnished: Through Registered Mail
COMMISSION ON ELECTIONS
Palacio Del Gobernador Building
Intramuros, Manila
SOLICITOR GENERAL
OFFICE OF THE SOLICITOR GENERAL
OSG Bldg., 134 Amorsolo St.,
Legaspi Village, Makati City
EXPLANATION FOR SERVICE OF PETITION
THROUGH REGISTERED MAIL
The service of copies of the instant Petition is made through registered mail. Pursuant to Rule 13, Section 11 of the Rules of Court, the service of copies of the instant Petition cannot be made personally due to distance and lack of available personnel.
JULIUS GARCIA MATIBAG
Blog Action Day: 10.15.09, Climate Change
October 14, 2009 in Commentary | Leave a comment
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