On October 30, 2009, this counsel, together with clients KABATAAN Party-List Rep. Raymond Palatino and leaders of the College Editors Guild of the Philippines (CEGP), National Union of Students of the Philippines (NUSP), Student Christian Movement of the Philippines (SCMP), Anakbayan, Kabataang Artista Para Sa Tunay Na Kalayaan (Karatula) and first-time registrants and voters, sought redress from the Supreme Court to extend the voter’s registration until January 9, 2010, as mandated by the Voter’s Registration Act of 1996, through the filing of an Urgent Petition for Certiorari and Mandamus with application for preliminary mandatory injunction.

The said petition is brought to the Supreme Court because the Commission on Elections (COMELEC) miserably failed to accommodate around 4 to 5 million first-time registrants and voters in its October 31, 2009 deadline.

The prayer for the declaration of COMELEC’s Resolution No. 8585, which set the October 31, 2009 deadline, as null and void is anchored on two (2) crucial grounds, thus:

First, it is unconstitutional as it is a manifest usurpation of the legislative power of Congress.

I.

THE RESOLUTION NO. 8585 DATED FEBRUARY 12, 2009 IS UNCONSTITUTIONAL AS THE SAME AMENDED SECTION 8 OF THE VOTER’S REGISTRATION ACT OF 1996 ON THE SYSTEM OF CONTINUING REGISTRATION OF VOTERS IN USURPATION OF THE LEGISLATIVE POWER OF CONGRESS.

Second, it is an indubitable violation of the system of continuing registration of voters under The Voter’s Registration Act of 1996 stating in clear and categorical terms that the personal filing of application of registration of voters shall be conducted daily but prohibited only during one hundred twenty (120) days before a regular election and ninety (90) days before a special election, and the assailed Resolution causes the disenfranchisement of millions of first-time youth registrants and voters who cannot be accommodated by COMELEC as of the October 31, 2009 deadline for purposes of the May 10, 2010 elections.

II.

THE RESOLUTION NO. 8585 DATED FEBRUARY 12, 2009 FIXING THE DEADLINE FOR THE FILING OF APPLICATION OF REGISTRATION OF VOTERS ON OCTOBER 31, 2009 VIOLATED SECTION 8 OF THE VOTER’S REGISTRATION ACT OF 1996 PRESCRIBING THAT THE FILING OF APPLICATION OF REGISTRATION OF VOTERS SHALL BE CONDUCTED DAILY BUT PROHIBITED DURING ONE HUNDRED TWENTY (120) DAYS BEFORE A REGULAR ELECTION, AS OCTOBER 31, 2009 IS SEVENTY (70) DAYS SHORT OF THAT PRESCRIBED BY SAID STATUTE, THEREBY CAUSING THE DISENFRANCHISEMENT OF MILLIONS OF FIRST-TIME REGISTRANTS AND VOTERS THAT CANNOT BE ACCOMMODATED BY RESPONDENT COMELEC AS OF OCTOBER 31, 2009 FOR PURPOSES OF THE MAY 10, 2010 ELECTIONS.

The start of the 120-day prohibitive period before the May 10, 2010 elections is on January 10, 2010. Thus, the deadline of application of registration of voters should be on January 9, 2010, not on October 31, 2009 which is seventy (70) days earlier than is prescribed by the statute.

Click the link below to see the full text of our petition, thanks:

http://kabataanpartylist.com/blog/urgent-petition-for-certiorari-and-mandamus-with-application-for-pleminary-mandatory-injunction/

And then the whole of November 2009 went by. This counsel has been updated of the significant developments of our petition in the Supreme Court. Thanks to good friends.

And on December 15, 2009, ten days before Christmas, the Supreme Court en banc promulgated its decision on our petition. Lo and behold, the Supreme Court en banc unanimously voted to grant our petition.

The dispositive portion of the Supreme Court decision reads:

“WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void insofar as it set the deadline of voter registration for the May 10, 2010 elections on October 31, 2009. The COMELEC is directed to proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010. This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

(sgd)
CONCHITA CARPIO MORALES
Associate Justice”

Click the link below to see the full text of the Supreme Court decision on our petition, KABATAAN Party-List v. COMELEC [G.R. No 189868, December 15, 2009], thanks:

http://www.scribd.com/doc/24123228/GR189868-Full-Text-of-Supreme-Court-decision-on-voter-registration

That’s it, we have won. The youth have won.

Below is the link of the full text of the National Union of Peoples’ Lawyers’ (NUPL) petition in the Supreme Court to declare Proclamation No. 1959 as unconstitutional and void.

On December 4, 2009, President Gloria Macapagal-Arroyo issued Proclamation No. 1959 proclaiming a state of martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao, except in areas controlled by the Moro Islamic Liberation Front.

On December 7, 2009, NUPL Secretary General Neri Javier Colmenares, Bayan Muna Rep. Satur C. Ocampo, Gabriela Women’s Party Rep. Liza L. Maza, Atty. Julius Garcia Matibag, Atty. Jobert Ilarde Pahilga, Atty. Ephraim B. Cortez, Atty. Voltaire B. Africa, Bagong Alyansang Makabayan (Bayan) Secretary General Renato M. Reyes Jr., and Anthony Ian Cruz filed a

‘Very Urgent Petition for Certiorari and Prohibition with very urgent application for temporary restraining order and/or preliminary injunction’

in the Supreme Court against President Gloria Macapagal Arroyo, Executive Secretary Eduardo R. Ermita, AFP Chief of Staff Victor S. Ibrado, PNP Director General Jesus A. Verzosa, DOJ Secretary Agnes VST Devanadera, and AFP Eastern Mindanao Command Chief Lt. Gen. Raymundo B. Ferrer.

Click the link below, thanks.

http://tonyocruz.com/?p=2719

‘Martial law and suspension of writ privilege’:
No sufficient factual basis, patently illegal, a brazen abuse of president’s power

National Union of Peoples’ Lawyers to file Petition in Supreme Court on Monday

“President Gloria Macapagal-Arroyo has gone berserk.”

This is the reaction of human rights law group National Union of Peoples’ Lawyers (NUPL) on the president’s issuance of Proclamation No. 1959 proclaiming a state of martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao.

It is elementary in political law that such declaration and suspension may be made only ‘in case of invasion or rebellion’ and only ‘when the public safety requires it,’ under Article VII, Section 18 of the 1987 Philippine Constitution.

The proclamation’s third whereas clause merely invokes an element of rebellion of “depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

The proclamation’s fourth whereas clause simply says, “WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety.”

That is all there is to it. The proclamation did not even bother to state the particulars about the identity, extent and purpose or purposes of these ‘heavily armed groups’. How could we ascertain if the president is indeed telling us the truth?

And even assuming that the president is telling us the truth this time, the ‘presence’ of heavily armed groups in the area does not necessarily mean that there is already rebellion.

The gravamen of the felony of rebellion is the armed public uprising against the government, as clearly defined in Article 134 of the Revised Penal Code, “Rebellion or insurrection; How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

More importantly, the powers and prerogatives of the president as the chief executive or of the legislature have never been deprived to them since the Ampatuan town massacre happened. Thus, there is no rebellion to speak of. In fact, the president has already invoked and exercised as commander-in-chief her ‘calling out power’ after the Ampatuan town massacre when the president has called out the armed forces to prevent or suppress lawless violence in the province.

The ‘calling out power’ is entirely different from the president’s ‘powers to declare martial law and suspend the privilege of the writ of habeas corpus ’.

There has never been such deprivation of powers or prerogatives of the chief executive or the legislature. The president had even time to file her certificate of candidacy to run as member of the House of Representatives in next year’s elections. So where did Malacañang get the idea of such deprivation of powers or prerogatives?

Not only does the president have to prove that rebellion indeed exists, she likewise has to prove that ‘public safety requires’ the declaration of martial law and the suspension of the privilege of the writ of habeas corpus .

Public safety in the area can be ensured even without such declaration and suspension. The president’s exercise of her ‘calling out power’ is more than enough to prevent or suppress any lawless violence or even a supposed rebellion, if any. There is no need for the president to invoke and exercise her highest and extraordinary powers: the ‘martial law power’ and the ‘power to suspend the privilege of the writ of habeas corpus ’.

Worse, the text of Proclamation No. 1959 is clearly bereft of any sufficient factual basis for such declaration and suspension. This is an unequivocal and brazen abuse of the president’s powers under the Constitution, plain and simple. Hence, it is very obvious that Malacañang’s ‘factual basis’ is not true at all. The president is testing the outer limits of the Constitution; the president is playing fire with fundamental freedoms by placing the military above civilian authorities.

We remind the president and state security forces that a state of martial law does not suspend the operation of the Constitution. Thus, warrantless arrests of any person must still be through a lawful cause. And given the record of the military in human rights abuses, we must ensure that no torture or cruel or degrading treatment will be inflicted against anyone that may be arrested.

A person may be detained for a period of three (3) days without even being charged due to the suspension of the privilege of the writ of habeas corpus .

The president’s exercise of the ‘martial law and suspension of writ privilege powers’ is a patent indication that the president is a megalomaniac, a person obsessed with wealth and power. As the president’s term and immunity from suit shall expire at noon of June 30, 2010 and plunder cases and human rights abuses shall certainly be immediately filed against her, it is not impossible for her to think about placing the entire country under martial law to perpetuate herself in power and avoid punishment for her crimes.

If she desires to be another Marcos, she will fail. The people will ensure it.

This coming Monday, we shall immediately file a petition before the Supreme Court to question Malacañang’s sufficiency of the factual basis of the proclamation of martial law and suspension of the privilege of the writ of habeas corpus .

Atty. Julius Garcia Matibag
National Union of Peoples’ Lawyers

The Philippine National Police has stated that it has no suspects yet in the Ampatuan massacre though it considers the motive behind the mass murder as “political”. Justice Secretary Agnes Devenadera has likewise been declaring in the media that no suspects have been officially named and arrested as the authorities are still conducting their investigation on the massacre which so far has claimed the lives of 57 people, 22 females and 35 males. The innocent victims include 25 journalists so far and two lawyers.

Malacanañg officials have been saying that “due process” must be observed in the apprehension of the perpetrators, hence not a single arrest has been made.

But are the authorities correct in invoking “due process”? Is the PNP correct in saying that witnesses must first execute affidavits before anyone can be arrested? Is Justice Secretary Devenadera correct in her declaration that investigation must be conducted first before anyone can be arrested?

All these excuses are just that – pure excuses.

In ordering an arrest, you do not need proof beyond reasonable doubt. Such quantum of evidence is needed only during the trial to ensure the conviction of the accused. We are not yet at the trial stage in the Ampatuan massacre; we are still in the stage of apprehension of the culprits.

In ordering an arrest, all you need is probable cause. It simply means that a crime has been committed and the person to be arrested has probably committed the same. And a warrant of arrest may even be dispensed with.

There are instances where an arrest without a warrant is lawful. The wisdom behind this rule is for the immediate apprehension of criminals because the issuance of a warrant of arrest takes time.

Only judges can issue a warrant of arrest. Prior to such issuance, a complaint has to be filed first before a public prosecutor who shall conduct a preliminary investigation, which shall take time. And only if the investigating prosecutor finds probable cause will he issue a Resolution, which has to be approved by the city or provincial prosecutor, as the case may be. After such approval, the investigating prosecutor shall file an Information in court charging the accused. The Information shall be raffled to determine which sala shall take cognizance thereof. Upon receipt of the Information by the judge, he shall conduct a preliminary examination to determine whether probable cause exists for the issuance of a warrant of arrest. Only then that a warrant of arrest may be issued.

Thus, due to the long time needed before a warrant of arrest may be issued, instances of lawful warrantless arrest have been clearly and categorically enumerated under the Rules of Criminal Procedure.

What are these instances?

Rule 113 – Arrest

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In the application of Rule 113, Section 5 (b), the term “personal knowledge” therein should not be strictly construed.

“Personal knowledge” of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be based upon “probable cause” which means an “actual belief or reasonable grounds of suspicion.” The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.”

In the Ampatuan massacre, there are reasonable grounds of suspicion that the Ampatuans, particularly Andal Ampatuan Jr., are probably guilty of committing such gruesome act of mass murder, thus:

(1) Ampatuan Jr. has been positively identified by witnesses and wife of Vice Mayor Ismael Mangudadatu as the leader of the 100 armed men. This information was directly relayed to Vice Mayor Mangudadatu by his wife through cellphone immediately when their convoy was forced to stop.

(2) The backhoe used by the killers in the digging of the graves is owned by the province of Maguindanao, as such is clearly printed on said equipment. The governor of Maguindano is Andal Ampatuan Sr.

(3) The victims were murdered while they were on their way to the Comelec office to file the certificate of candidacy of Vice Mayor Mangudadatu as Maguindanao governor. He will challenge Ampatuan Jr. for the said post as it is already the last term of Ampatuan Sr. as Maguindanao governor.

(4) Chief Inspector Zukarno Adil Dicay, Maguindanao provincial director, was seen by witnesses as among the armed men led by Ampatuan Jr. Thus, C/Insp. Dicay was relieved of his post. As C/Insp. Dicay has direct and personal knowledge of the massacre, he saw the killers while actually committing the massacre in his presence.

(5) The Ampatuans have absolute control over the province of Maguindanao and they even have a private army.

(6) The Ampatuans, particularly Ampatuan Jr., are completely silent about the imputations against them as the mastermind behind the massacre.

These circumstances are enough to establish probable cause for the immediate lawful warrantless arrest of Ampatuan Jr., C/Insp. Dicay and the members of the Ampatuan private army.

The reason why not a single arrest has been made so far? Malacañang is afraid that the Ampatuans might disclose what really happened during the 2004 and 2007 elections in the counting of votes in Maguindanao. Thus, the negotiation between Sec. Jesus Dureza and the Ampatuans for the former’s request for “cooperation” from the latter in the investigation.

Imagine, a government official requesting for “cooperation” from the Ampatuans. Secretary Dureza is even acting as if he were lawyering for the Ampatuans.

Whether the Ampatuans would cooperate or not, that is their problem. It should not be Malacañang’s problem.

Authorities should apply the full force of the law if the Ampatuans are not willing to cooperate. If the Ampatuans resist the arrest and the confiscation of their firearms and the dismantling of their private army, authorities should simply apply the full force of the law, plain and simple.

If the Ampatuans fire upon the authorities in the course of these actions, authorities should return the favor to the Ampatuans, plain and simple. The Philippine National Police and the Armed Forces of the Philippines have more than enough manpower and firepower to assert the law in Manguindanao and force Ampatuan Jr. et al. inside prison cells.

Anything less than these courses of actions is injustice to the victims and their families, plain and simple.

NB. First posted on Facebook on November 25, Wednesday.

Philippines a dangerous country for lawyers
Law group strongly condemns killing of its two lawyer-members

The National Union of Peoples’ Lawyers (NUPL) condemns in the strongest possible terms the horrible act of brutal killings of innocent civilians including its two lawyer-members, Attys. Concepcion Brizuela and Cynthia Oquendo, and scores of women and journalists in Maguindanao yesterday.

Penal books are not enough to depict the horrifying mass slaughter of innocent civilians, much less the state of mental perversity of their executioners in the commission of such a gruesome act.

Lawyers are essential agents of the administration of justice, and journalists are an institution in a civilized society. If lawyers and journalists are brutally murdered while in the performance of their duties, and in broad daylight at that, democracy is dead, plain and simple.

Malacañang must see to it that it knows how to accord justice to the hapless victims, especially in this case where military reports disclosed that the mastermind is its closest political ally in Mindanao, the Ampatuans. All government resources must be brought to bear on the Ampatuans. Otherwise, Malacañang itself would tolerate lawlessness and violence. The private army of the Ampatuans must be instantly disarmed and placed under immediate custody and investigation, and all their firearm licenses immediately revoked.

Malacañang’s tolerance of warlords greatly contributes to the persistence of the culture of impunity in our society. Since 2001 and prior to the Maguindanao massacre, 22 lawyers and 15 judges in the country have already been murdered and not a soul was put in prison by the authorities, and this has earned the present administration the dubious distinction of having the most number of lawyers and judges that were killed in an administration.

These extra-judicial killings of lawyers and journalists must be put to an end. We demand in the strongest possible manner that justice be accorded to the innocent victims, particularly to our compañeras, Attys. Brizuela and Oquendo. We demand justice, no more, no less.

Atty. Julius Garcia Matibag
0927.9293089

NB. First posted on Facebook on November 24, Tuesday.

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:

  1. 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

Hayaan mong ako ang unang magsabi
na alam ko ang pangalan ng lahat
at aking bibigyan ng ngalan yaong ‘di ko alam:
dukkha, naufragio, talinghaga.
Katulad ng mga musmos
na may pusong ‘di nagtutulak ng kahihiyan,
iniibig ko ang mga labis ng kariktan,
‘di sapat ang liwanag ng araw
sa daigdig na aking pamumuhayan,
‘di sapat ang puwang para sa pag-ibig.

Ako’y nangangamba na walang magtatagal sa ating dalawa
para patotohanan ang matagal ko ng hinala,
na ang himpapawid ay isa lamang lamad
sa loob ng bungo ng anghel,
ang mga puno ay nag-uusap sa gabi,
ang yelo ay tubig sa gitna ng katahimikan,
ang sanggol sa sinapupunan ay nakikinig sa ating sinasabi.

Ako’y nangangamba sa bata na nagluluksong-lubid
sa sulok ng aking pasilyo,
sa dilag sa tren na may mga bulaklak sa kaniyang buhok,
sa lalaking ang buong ala-ala
ay sa wikang Kastila. Ako’y higit na nangangamba na mawalan ng ulirat
kapag ako’y humimbing, na sa aking paghimbing
ako’y tatanda at makakalimot kung paano na minsan
ang pagnanasa ang nagpabaliw sa akin sa kawalan ng antok.

Katulad ng mga sakdal na panahon
sila ay papanaw
at ako ay papanaw
at ikaw din ay papanaw;
walang nakakaalam kung sino ang mauuna,
at ito ang ugat
ng lahat ng aking pighati.

(Pasintabi kay Eric Gamalinda)

http://www.bloggerskapihan.com/2009/10/08/blog-action-day-2009-pilipinas/

Kapag binibigkas ko ang salitang Kinabukasan,
ang unang pantig ay naroon na sa nakaraan.

Kapag binibigkas ko ang salitang Katahimikan,
binabasag ko ito.

Kapag binibigkas ko ang salitang Kawalan,
nililikha ko ang bagay na hindi kayang sapuhin ng walang buhay.

(Pasintabi kay Wisława Szymborska)

What is poetry that does not save nations and peoples?
Flood, flood that destroys homes and books.
Horses, insane horses with no master
pounding on family’s chest.
Poisoned blood, no milk, pure pain.
Dead.
Dead.
Dead.
Dead.
Countless dead.
Corpses floating in mud.
Governments, bad governments.
What is poetry that does not save nations and peoples?
Floods and governments.
It is floods and governments.

(Tula na isinulat at binasa sa Ahon (Tula at Tulong sa mga Nasalanta ng Ondoy) sa Conspiracy Bar noong Oktubre 6, 2009.)

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