Atty. Mel Sta. Maria is Dean of the FEU Institute of Law. He is the resident legal analyst of TV5.
At a time when former and/or present dictatorial governments, such as in Myanmar, Iran and Afghanistan, have impressively allowed millions of their citizens to vote, the Philippines, which prides itself for its democracy, is set to disenfranchise 3,000,000 of its own registered voters.
The decision of our Supreme Court last Tuesday, December 16, dismissing the petition of our youths questioning the Comelec's "No Bio No Boto" policy is a serious setback to our electoral process. It is so disappointing. How could validation through biometrics - a pure statutory requirement - be more exalted than the right to vote - a most sacred right enshrined in the Constitution?
If it becomes final, the decision will be remembered for affirming a law prohibiting, not an evil act, but rather a good act - the democratic exercise of a citizen's right to vote. It will be historic in its emasculating effect on our electoral process, as it disables and not enables the citizenry's right of suffrage.
The fundamental "right of suffrage is the most treasured prerogative of citizens through which other rights flow." The collective power of its exercise creates a government truly representative of the people.
The right to vote has reference to a constitutional guarantee of the utmost significance. It is a right without which the principle of sovereignty residing in the people becomes nugatory. In the traditional terminology, it is a political right enabling every citizen to participate in the process of government to assure that it derives its power from the consent of the governed. (Pungutan vs. Abubakar GR No. 33541 January 20, 1972, Moya v. Del Fierro, 69 Phil. 199, 204)
But the Comelec's "No Bio No Boto" policy will decapitate it. Our 1987 Constitution said: "No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage." Validation through biometrics is a "substantive requirement" offensively violating that fundamental command. It is, in effect, not a mere act of registration but a mode of qualification - an affront to the Constitution. It kills rather than safeguards the substantive right to vote.
The magnitude alone of the voters who will be disenfranchised is staggering. It was reported that approximately three million (3,000,000) qualified and registered voters will be deactivated - a very high price to pay for simply failing or omitting, regardless of cause, to undergo a 10-minute process of being digitally photographed and fingerprinted.
The strictest scrutiny demands that, if the law's purpose is to prevent flying or ghost voters, convincing evidence must be shown that all, if not a majority, of these 3,000,000 citizens are evil voters - a heavy burden to prove on the part of government , but nevertheless a necessary undertaking because what is at issue is the right of suffrage. As I have always said, I believe that, of the 3,000,000 registered voters who will be disenfranchised, much more are the good ones than the evil ones. How will they, the good ones, be protected? The law is silent on this point. It does not preserve and safeguard the citizens' right to vote.
Indeed, what kind of government rejoices in the disenfranchisement of qualified and registered voters numbering in the millions? It is a perplexity. Three million people is a critical mass. In other countries, the deprivation of their right may spark a revolution - for at its core is the stifling of the most basic democratic act - THE VOTE. John Adams, himself a political scientist and addressing public officials admonished: "We should be unfaithful to ourselves if we ever lose sight of the danger to our liberties if anything partial or extraneous should infect the purity of our free, fair, virtuous and independent elections."
The repulsiveness attending this deprivation becomes more pronounced considering that all, if not a majority, of those who will be disenfranchised are taxpayers - people who toiled and provided money to our country just to get it moving. How dare the government take away the taxpayers' most powerful political right just for not being able to appear in front of a computer?
Validation through biometrics is good but the penalty of deactivation as provided in Section 7 of Republic Act No. 10367 is uncalled for. A less restrictive constitutionally allowable situation can be achieved. For example, if the Supreme Court partially declares the law constitutional in so far as the validation-via-biometrics-part is concerned and declares the penalty of deactivation unconstitutional, it is a win-win solution. Deactivation will stop while validation will indefinitely continue up to the time it reaches its maximum result. Consequently, even on election day, May 9, 2016, the 3,000,000 registered voters who have not undergone validation can now do so on election day itself. The purpose of the law would have been achieved. And more fundamentally, the right to vote would not have been lost. The law would have been implemented in the spirit of participatory and representative democracy.
Section 7 of Republic Act No. 10367 emasculates our electoral process. It has no place in our democratic life. Let the choice of the real and actual majority of our people, not biometrics, determine our future leaders. Let us uphold the sanctity of the exercise of the right of suffrage.
source: TV5
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