Can Comelec extend the non-extendible?

THE Commission on Elections’ en banc resolution allowing an extension of the final and non-extendible June 8 deadline for the filing of Statements of Contributions and Expenses (SOCE) by candidates in the May 9 elections constitutes not only an extremely dangerous precedent but, above all, a grave abuse of discretion and a patent violation of the law. It is null and void ab initio.

Commissioner Christian Robert Lim is reportedly set to resign today as head of the finance campaign office, in protest against the ruling, which seeks to set aside the provision of the Omnibus Election Code and Comelec Resolution 9991, by a vote of four to three. Both PDP-Laban, the President-elect’s adopted political party, and Vice President Jejomar Binay’s UNA have denounced the ruling as illegal, without saying whether they are taking any concrete action against it or not.

To the Supreme Court
For his part, election lawyer Manuelito Luna, who figured prominently in the celebrated citizenship case against the defeated presidential candidate Grace Poe Llamanzares, will be asking the Supreme Court in his capacity as a concerned citizen and taxpayer to invalidate the Comelec ruling and restore the “status quo ante.” This should happen sometime today.

Under the law, as clarified by Comelec Resolution 9991, a winning candidate may not take his oath of office if he or his party fails to file his SOCE within the deadline fixed by law. All the candidates have filed their individual SOCEs on time, but their party—the ruling Liberal Party—has failed to do so and has asked for a 14-day extension of the non-extendible deadline.

The campaign finance office called for strict compliance with the law and denial of the requested extension, but the banc decided to extend the deadline until June 30. The law does not grant the Comelec any such authority, but speaking for the banc, Commissioner Rowena Guanzon, one of the four commissioners who voted to extend, said that “procedural rules cannot prevail over the people’s sovereign will.”

An absurdity?
Justifying the ruling, the Comelec spokesman pointed out that if the law were followed to the letter, the Vice-President-elect, five senators-elect, 40 governors-elect and 115 congressmen-elect would not be able to assume office, with incalculable adverse consequences to the operations of the entire government. This would be an absurdity, the spokesman said.

We respectfully disagree. Indeed, it would be most unfortunate if all these elected candidates were barred from taking their oath of office because their party had failed to do its basic duty. But this would be merely a consequence of the normal operations of the law. There is nothing absurd about the law, so by no means could we call it an absurdity.

Indeed, it would be an absurdity if, during the time that the candidates and the LP were preparing their SOCE, a major earthquake, tsunami, epidemic, terrorist attack or any other kind of force majeure struck and destroyed the nation’s cities and countryside, and all LP offices everywhere, and yet the Comelec insisted that they submit their SOCE on time, as if the national calamity did not exist.

Without any force majeure occurring, a real absurdity would arise if hundreds of winning candidates and their respective parties neglected to comply with the simplest legal requirement and yet were spared from any penalty because those who were supposed to enforce the law had decided to bend it, believing they possessed a power they did not have. What the Comelec has done to prevent a so-called absurdity is the real absurdity, which seeks to trample upon the law.

Guanzon’s statement
Commissioner Guanzon’s statement that procedural rules cannot rise above the people’s sovereign will, properly applied and understood, merits no debate. But there are written and unwritten rules attached to the grant of a sovereign mandate to ensure its validity and legitimacy. One such condition is that no candidate must accept financial contributions from an illegal or prohibited source nor spend more money in excess of the amount allowed by law.

For this purpose, the candidate and his party are required to submit a complete and accurate SOCE within an inflexible period fixed by law. This requirement cannot be waived because it is supposed to perfect a candidate’s and his party’s participation in the electoral process. If the SOCE shows that the candidate or his party had received donations from an illegal source, or had spent more money than was allowed by law, then he would have to be summarily disqualified by the Comelec, regardless of his claim to a “landslide victory.”

There have been high-profile examples of this, the latest being the popular candidate E.R. Ejercito, who won the 2013 governorship of Laguna, but was disqualified for spending more than he was allowed by law, according to his SOCE.

Ministerial act
All winning candidates will have to take their oath of office at noon of June 30 in accordance with law. The June 8 deadline allows the Comelec a reasonably sufficient time to go through the SOCE of winning candidates to see whether each of them, together with their respective political parties, had complied with the law governing campaign contributions and expenses. Extending that deadline to June 30 would deny the Comelec the material time needed to examine the SOCE properly, especially those filed on the last day or the last few days.

It would thus reduce the filing of the SOCE, and its reception by the Comelec, into mere ministerial acts. The Comelec would no longer have the material time needed to discover that a particular candidate was in willful violation of the law governing the execution of this important document and had to be prevented from taking his oath of office.

The fact that the Vice-President-elect, five senators-elect, 40 governors-elect, and 115 congressmen-elect will not be able to take their oath of office because of the LP’s failure to comply with the law is not a problem of the Comelec, whose duty it is to enforce the law, but solely that of the candidates and the LP, which has failed to comply with the law. This should ultimately lead to LP’s disenfranchisement as an “irresponsible party,” even without the massive post-election migration of its members to Duterte’s new party.

Scary scenario
I am not competent to describe the scenario that should obtain if and when the elected candidates mentioned above are unable to assume office. I can only speculate it would be scary. In the case of the Vice President, the Constitution provides that “whenever there is a vacancy in the Office of the Vice President during the term for which he has been elected, the President shall nominate a Vice President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.”

Complicated VP
But aside from the SOCE issue confronting Vice-President-elect Leni Robredo, her election is under serious question by her closest rival, Sen. Ferdinand (Bongbong) Marcos, Jr., who has alleged massive fraud, particularly in Muslim Mindanao, and has announced his intention to file a formal election protest before the Presidential Electoral Tribunal, on June 28. This complicates the issue of vacancy in the Office of the Vice President, and how the above-quoted constitutional provision will apply.

Effects on Senate presidency
With respect to the vacancies occurring in Congress, the Constitution provides for special elections to fill up such vacancies. Meantime, the five Senate vacancies would reduce the 24 regular Senate members to only 19; in the House, the 115 vacancies would leave 177 active members. Both Houses would still have enough members to constitute a majority, but in the Senate, the five vacancies could alter the fight for the Senate presidency.

Sen. Aquilino Pimentel 3rd, the PDP-Laban’s lone member, was earlier reported to have sewed up with the support of the LP. But with Senate President Frank Drilon, top-ranking LP, and four others out in the cold, another senator could emerge to challenge Pimentel’s prospective Senate presidency.

In the case of the 40 governors-elect, they will simply be succeeded by their vice governors, thereby ensuring the uninterrupted operations of the provincial governments concerned. The LGUs are the least likely to be adversely affected by these developments.

Simplifying govt
Should the Supreme Court sustain the Comelec and confirm the extension of the SOCE deadline, President-elect Duterte might be encouraged to seriously consider his earlier “promise” to remove unwanted and unhelpful elements in government and simplify the running of government.

The simplification of his inaugural appears to be but a first step. Instead of holding the inaugural at the Rizal Park, where past Presidents had held theirs, President-elect Duterte will hold his at the Rizal Ceremonial Hall of Malacañang Palace, before a limited and controlled audience of 500 guests. He will be sworn into office by Associate Supreme Court Justice Bienvenido Reyes, a fraternity brother of the Lex Talionis Fraternitas at the San Beda College of Law, where they both studied law.

The choice of Reyes to administer the incoming President’s oath of office is reported to have caused “palpitations” on the part of Chief Justice Maria Lourdes Sereno, whom President B.S. Aquino 3rd pole-vaulted from the most junior position to her present post after he had the late former Chief Justice Renato Corona impeached and removed from office on one “non-impeachable” offense by paid members of the House and the Senate impeachment court. At the time Reyes, a 2011 Aquino appointee, was offered the chance to become Chief Justice, but he formally declined being included in the “short list” of nominees “out of respect for the senior justices.”

Chief Justice fears
Although Duterte has not telegraphed any moves against the Chief Justice, Sereno appears to entertain fears that what Aquino had done to Corona the new President might do to her, without his having to invent any valid grounds for her impeachment and removal the way Aquino invented grounds against Corona. It is not clear whether Sereno has been invited to the Duterte inaugural.

Although the Vice President is traditionally sworn into office together with the President, this will not happen this time. Even if the High Court resolves the SOCE issue in favor of the LP, and all legal obstacles to Leni Robredo taking her oath are withdrawn, the plan is for her to hold her own separate oath-taking somewhere else. We do not have the precise details as of now, but we can be sure it will not be held at the Quirino Grandstand, and neither Sereno nor any other SC justice will administer her oath. Regardless of the venue, according to reports, a barangay official from Caramoan, Camarines Sur, will do the honors.

The apparent motif is one of extreme simplicity, which should create the intended news headlines. But the barangay official concerned might not have the competent authority to administer the oath to the incoming Vice President, especially if he or she would perform the act in Metro Manila, far away from his or her territorial jurisdiction.

fstatad@gmail.com

source:  Manila Times

4 key issues that divide SC justices in Grace Poe case

MANILA, Philippines – The 5-hour oral arguments on Tuesday, February 2 give the public a glimpse on the issues that divide the Supreme Court justices in the disqualification cases against presidential candidate Grace Poe.

Lawyer Arthur Lim, a member of the Commission on Elections, answered questions from the justices in the 3rd round, defending the poll body’s decision to cancel Poe’s certificate of candidacy on the grounds that she “misrepresented” her residency and citizenship. In other words, Comelec said Poe was not a natural-born citizen and lacked the 10-year residency, 2 basic requirements to run for president.

In these exchanges, 4 key takeaways emerged:

1.When the count for the 10-year residency requirement starts.

Justice Mariano del Castillo, who will write the decision, raised the point that the count for Poe’s residency should start on October 21, 2010, when she “expatriated” herself before the U.S. embassy in Manila. “This was when she gave up her domicile in the US,” Del Castillo said. It was the first time in the series of oral arguments that this reckoning point was brought up.

For the Comelec, July 18, 2006 is the earliest time Poe can be considered a resident. It was at this time that she re-acquired her citizenship, as granted by the Bureau of Immigration (BI). Lim said that the Comelec “wanted to accommodate her position” but this still fell short of 10 years.

But Justice Teresita De Castro pointed out that Poe gave “false claims” to the BI, saying that she was born to Fernando Poe Jr. and Susan Roces, hiding the fact that she was a foundling.

If the count begins October 2010, Poe would have been a resident for only less than 6 years.

2. Will the Court engage in “judicial legislation?” Shouldn’t Congress pass legislation to address foundlings’ eligibility for government positions?

Chief Justice Maria Lourdes Sereno elaborated on her earlier position that thousands of foundlings will be discriminated against should the Supreme Court say that Poe, herself a foundling, is not a natural-born citizen. Many government positions, both elective and appointive, require that holders be natural-born citizens.

For almost 3 hours, Sereno repeatedly made this point. In response, Lim kept going back to the “core issue,” saying that this is for Congress and not for the Supreme Court to resolve. “The sad plight of foundlings is not the issue here…Let’s not lose sight of the fact that Poe is seeking the highest position…Comelec doesn’t want to lose focus on what is at stake. This problem [foundling rights] should be addressed by Congress.”

He added that the Court could be engaging in “judicial legislation.”

Justice Arturo Brion, who was the last to ask questions, followed through. “If the constitutional provision on natural-born citizenship is unreasonable, what is the remedy?” To which Lim answered, “Amend the Constitution.”

Brion is one of the 3 justices who dissented in the Senate Electoral Tribunal decision saying Poe is a natural-born citizen. The other 2 are Justices Antonio Carpio and De Castro.

3. Adoption laws as a defense was not raised by Poe’s counsel before the Comelec.

Brion wanted to know if Poe’s camp used the country’s adoption laws as defense before the Comelec. Sereno had repeatedly argued that these presume foundlings to be Filipino citizens.

Lim said that Poe’s defense was anchored on international laws. To which Brion asked, “You heard it first before the Supreme Court?” He was apparently alluding to Sereno, who brought up adoption laws as defense in the last oral arguments and told Poe’s counsel to look at “rich” domestic laws when they file their expanded briefs.

Lim said he was “not sure” if this line of defense came up first in the Supreme Court.

4. In weighing evidence on Poe’s citizenship and residency, what standards will be used?

Sereno and Justice Marvic Leonen harped on this point. Sereno wanted to know what kind of proof the Comelec wanted from Poe.

Leonen pursued a similar line of questioning and asked Lim to cover this in the poll body’s brief.

Lim said that the evidence presented by Poe was “not enough.” The Comelec was after “substantial evidence.”

The justices are expected to deliberate on these key issues as decision time nears.

So far, 4 justices have kept quiet during all the oral arguments: Lucas Bersamin, Bienvenido Reyes, Francis Jardeleza and Jose Mendoza. The last appointee of President Aquino to the Court,Justice Alfredo Benjamin Caguiao has not participated in the oral arguments since his appointment. It is not clear if he will take part in the voting.

The next oral arguments will take place February 9. – Rappler.com

SC nixes Comelec plea for more time to answer Gordon petition

THE Supreme Court (SC) denied the plea of the Commission on Elections (Comelec) to be given more time to answer the petition filed by former Sen. Richard Gordon seeking to compel the poll body  to issue receipts for votes cast during the May 9  elections.

At a media briefing, SC Spokesman Theodore Te said the Court denied the Comelec’s motion during its regular en banc session on Tuesday, and decided to maintain their earlier order for the poll body to respond to the motion within five days.

“The Court denied respondent Comelec’s motion for extension of time to submit comment. The Court’s order of February 23, 2016, gave respondent Comelec an inextendible period of five days within which to comment,” Te said.

It will be recalled that, in his petition for mandamus, Gordon, who is also running for the Senate in this year’s elections, said the poll body should implement Section 7 (e) of Republic Act (RA) 9369, or the automated election law, which states that the Voter Verification Paper Audit Trail (VVPAT) is one of the minimum systems capabilities of the automated-election system and a major security feature of the vote- counting machine.

Gordon noted that the VVPAT allows every voter to confirm whether the machine cast the vote correctly based on the choice of the voter, thereby ensuring the integrity of the elections.

He pointed out that VVPAT is a “critical and indispensable” security feature of the automated-voting machine, one that the Comelec must implement.

Gordon said the Comelec must not be allowed to violate the law, as it has done so in the 2010 and 2013 elections, adding that this is one of the reasons there are those who questioned the credibility of the automated-election system, owing to the failure of the poll body to implement the safeguards, such as presenting the source code for review and disabling the use of digital signatures.

Comelec Chairman Andres Bautista said the poll body has decided against printing the receipt, because it might be used for vote- buying, and that it would result to the vote-counting process being extended from six to seven hours, since it takes about 13 seconds to print a receipt, meaning each machine would have to run for that long for the receipts.

Gordon hits back at Macalintal

THE main author of the landmark election automation law, comebacking Sen. Richard Gordon, hit back at election lawyer Romulo Macalintal on Tuesday for saying the law did not mandate the issuance of receipts to voters.

Gordon, who last week filed a petition asking the SC to compel the Comelec to activate the Voter Verified Paper Audit Trail (VVPAT) for the May 9 elections, said Macalintal should check his facts before dishing out “selective arguments.”

Gordon was reacting to Macalintal’s published reaction, criticizing Gordon for filing a “misleading and speculative petition.”

The former senator, who once also chaired the Congressional Oversight Committee on Poll Automation, drew attention to RA 9639’s Sections E, F and N, governing the required documentation and verification system after the country scuttled manual elections.

“Depriving voters of a chance to verify through a receipt if their votes were accurately reflected means you are asking them to put their full and exclusive trust in a machine which can be monkeyed around with,” Gordon told the BusinessMirror.

The issue here, he added, “is guaranteeing the integrity of the polls, and letting people have full confidence in the outcome of the elections.”

This will be crucial, Gordon stressed, in ensuring political stability, especially in light of indications this will be a tight race. “If a winner is declared on a small margin, imagine how hard it will be to assure people that the vote is clean, especially if they don’t have receipts and were forced to blindly trust the machines.”

At the same time, Gordon observed that the Comelec never even activated the onscreen verification, which is now being touted as a possible replacement for VVPAT.

He pointed out that the law contemplates receipts, a paper audit trail, and it is time to enforce that, lamenting that it was taken lightly along with other security features in the 2010 and 2013 elections.

Gordon shot down arguments that a paper trail would invite vote buying, noting the hypocrisy of those who say people should be forced to trust the system enough without demanding receipts while, at the same time, accusing them of being a party to vote-buying.

The comebacking senator also noted that the earlier SC decision being cited by Macalintal was rendered even before the country held its first automated elections in 2010.

He noted that in 2010, neither the VVPAT nor onscreen verification was activated. That year the Comelec was also blasted by critics for also failing to put into action a source-code review and for not compelling its watchdog, the Parish Pastoral Center for Responsible Voting, to seriously carry out the random manual audit in timely fashion as required by law.

To buttress his argument, Gordon further cited specific requirements in the law which mandates “provision for voter verified paper audit trail; system auditability which provides supporting documentation for verifying the correctness of reported election results; and, provide the voter a system of verification to find out whether or not the machine has registered his choice.”

source:  Business Mirror

'It is quite clear that a former Filipino who reacquires Philippine citizenship pursuant to RA 9225 has to perform an act to acquire or perfect his or her Philippine citizenship'


SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler

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FULL TEXT: Comelec chief Bautista's separate opinion on Grace Poe's citizenship

'It is quite clear that a former Filipino who reacquires Philippine citizenship pursuant to RA 9225 has to perform an act to acquire or perfect his or her Philippine citizenship'

Camille Elemia

@CamilleElemia

Published 7:15 AM, December 24, 2015

Updated 7:15 AM, December 24, 2015

SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler

MANILA, Philippines – Chairman Andres Bautista is one of two dissenters in the decision of the Commission on Elections (Comelec) en banc rejecting the 2 motions for reconsideration of presidential aspirant Grace Poe on questions about her citizenship and residency.

The en banc voted on 5 points concerning the cases filed before the 1st and 2nd divisions:

• the poll body's jurisdiction over the issue
• Poe's residency
• Poe's citizenship
• whether there was deliberate intention on her part to mislead the electorate on her residency and citizenship status
• whether the appeal will be granted or not

All commissioners said the poll body has jurisdiction over the cases and that Poe is not a natural-born Filipino.

For the residency issues, 5 commissioners, including Bautista, voted against Poe. Only commissioners Luia Guia and Christian Robert Lim voted in favor of Poe.

Meanwhile, only 3 out of the 7 commissioners – Guia, Christian Lim, and Bautista – voted in favor of Poe, saying there was no deliberate intent on her part to mislead the public on her residency status.

As for alleged intent to mislead people on her citizenship status, only Bautista and Commissioner Al Parreño voted in favor of Poe. Lim inhibited from voting on this issue.

Ultimately, 5 voted against Poe's motions, except for Christian Lim and Baustista. The majority were commissioners Parreño, Guia, Arthur Lim, Rowena Guanzon, and Sheriff Abbas.

In his separate opinion on the 1st division case, Baustista said the mere fact that Poe reacquired her citizenship through Republic Act 9225 means she performed an act to perfect her Filipino citizenship, making her a naturalized, not natural-born, Filipino.

Here is the full text of Bautista's concurring and dissenting opinion on the en banc decision upholding the earlier ruling of the 1st division to cancel Poe's certificate of candidacy:

Please refer to the relevant paragprahs in my Concurring and Dissenting Opinion vis-à-vis the Resolution of the Commission En Banc in the case of Elamparo v. Llamanzares, SPA No. 15-001 (DC)

However, I wanted to add a few paragraphs in respect of the issue raised in SPA No. 15-139 (DC) regarding the status of former Filipinos who reacquire their Philippine citizenship pursuant to R.A. 9225.

The 1987 Constitution is clear in its definition of a natural-born citizen. Section 2, Article of the Constitution provides:

“Section 2. Natural-born citizens who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.”

Thus, under said definition, a Philippine citizen who acquired his or her citizenship from birth must have acquired it without having to perform any act to acquire or perfect his or her Philippine citizenship.

Republic Act No. 9225 otherwise known as the “Citizenship Retention and Reacquisition Act of 2003” was enacted to allow the reacquisition and retention of Philippine citizenship for natural-born citizens who have lost Philippine citizenship by reasons of their naturalization as citizens of a foreign country. In the landmark case of Bengson III v. HRET and Cruz (G.R. No. 142840, 7 May 2001) involving repatriation under Republic Act No. 2630, the Supreme Court explained that repatriation results in the recovery of the original nationality. In Tabasa v. Court of Appealss (G.R. No. 125793, 29 August 2006) which involved repatriation under Republic Act No. 8171 otherwise known as an “Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos,” the Supreme Court likewise declared that repatriation has the effect of allowing a former Filipino to recover his natural-born citizenship. Parreño v. Commission on Audit (G.R. No. 16224, 7 June 2007) characterized the procedure under Republic Act No. 9225 as in the form of repatriation.

It is important to keep in mind that the Constitution is the paramount law of the land which is deemed written in every statute and contract (Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997). The doctrine of constitutional supremacy as enunciated in the Manila Prince Hotel requires that Republic Act No. 9225 must be read and interpreted in a way that would harmonize it with the Constitution. Laws should not be given an interpretation that would render it unconstitutional. As early as Haydee Herras Teehankee v. Director of Prisons, et. Al. (G.R. No. L-278, 18 July 1946), the Supreme Court, citing 11 Am. Jur., Constitutional law, Section 97, ruled to construe the law in consonance with the mandates of the Constitution, thus:

“It is an elementary principle that where the validity of a statue is assailed and there are two possible interpretations, the court should adopt the construction which would uphold its constitutionality. It is the duty of courts to adopt a construction of a statute that will bring it into harmony with the constitution, if its language will permit.

Given the foregoing, there can only be one interpretation of Republic Act 9225 that will do justice to the Constitutional requirements for natural-born citizenship: a former Filipino who reacquired Philippine citizenship should be deemed to be a naturalized Filipino citizen.”

Signed.
J. Andres D. Baustista
Chairman

– Rappler.com

Comelec upholds Poe DQ

Senator given five days to get TRO

Sen. Grace Poe’s name would be stricken off the official list of candidates for President if she failed to get a temporary restraining order (TRO) or any other relief from the Supreme Court (SC) within five calendar days from date of receipt of the en banc’s disqualification order.

“They have to get a TRO once it is an en banc decision from the Supreme Court so that their names will not be removed from the list,” Commission on Elections (Comelec) Chairman Juan Andres Bautista on Wednesday said after the promulgation of the en banc decisions affirming earlier resolutions by the First Division and the Second Division that Poe is not a natural-born Filipino citizen and failed to meet the minimum 10-year residency requirement.

Poe, in a statement, said she expected the ruling.

“I was not surprised with decision of the Comelec en banc. It was expected and I remain undaunted by it. I am a Filipino and qualified to offer myself as President of our country. The Comelec cannot change that, much less deprive our people of their right to choose our next leader.

“We will follow the process and the next and final battleground is in the Supreme Court. I am hopeful and confident that our magistrates, based on jurisprudence and precedents, will be objective and fair in their discernment of my case and, in the end, will let the Filipino people decide who our next President will be.

“Until the high tribunal’s final ruling is out, I remain a candidate for President of the Filipino people,” her statement read.

The First Division is headed by Senior Commissioner Christian Robert Lim with Commissioners Rowena Guanzon and Luie Tito Guia as members. It handled the consolidated case filed by former senator Francisco Tatad, political science professor Antonio Contreras and former law school dean Amado Valdez. It earlier voted 2-1 to disqualify Poe.

In the First Division case, the commission en banc voted 5-2. Bautista and Lim dissented.

The Second Division, on the other hand, is headed by Commissioner Al Parreno as chairman with Commissioners Arthur Lim and Shariff Abas as members. It handled the petition filed by lawyer Estrella Elamparo and voted 3-0 to disqualify Poe.

But in the en banc, the commissioners ruled 5-1-1. The dissenting opinion was again cast by Bautista while Lim inhibited because Elamparo was an associate in his former law firm.

The Comele en banc is composed of Bautista, Christian Lim, Arthur Lim, Guanzon, Abas, Guia and Parreno.

Bautista explained that aside from a TRO, the SC may also issue a mandatory injunction or a status quo ante order, saying any of the three remedies would compel the Comelec to comply.

“But after everything has been said and done, come January we start printing the ballots. We will look at the state of affairs and look what orders come from the Supreme Court and we will follow [them],” the Comelec chief added.

Five-day rule

Commissioner Lim clarified that five calendar-day rule includes holidays but if the last or fifth day falls on a holiday, it would be moved to the next working day as provided under Rule 27 of the Comelec Rules of Procedure.

“Whether or not the Supreme Court is in session, if there is no TRO, we have to remove them. We start editing on January 8,” Lim said. “From the technological standpoint, [in] January will start removing the names from the list.”

But counsel for Poe, lawyer George Garcia, questioned the five-day rule set by the Comelec, saying under the Omnibus Election Code, “it is 30 days from the decision.”

“According to the Rules of Procedure of the Comelec, it is only five days. Look at Section 257 of Omnibus Election Code, even the Constitution, it is 30 days from decision,” Garcia said, adding that if the Comelec would implement it immediately after five days, “we would include it in our MR to the Supreme Court to convince the court to issue a TRO.”

He said the five-day rule is based on Comelec procedure while the 30-day rule is based on substantive law.

“If there is a conflict between [Comelec] procedure and substantive law, the latter will prevail,” according to Garcia.

He explained that the Comelec decision is not executory and as such it could not remove the name of Poe pending final resolution by the SC.

Also according to Garcia, the Comelec procedure was also wrong because it did not consolidate all four cases, which would force them to seek two TROs from the SC.

But Bautista maintained that the en banc decision is executory within five days in the absence of a TRO from the High Court.

“Just because there is a pending case it is not a ground for us not to implement an executory decision of the commission en banc. There has to be an order from the Supreme Cort like temporary restraining order, mandatory injunction or status quo ante order,” he said.

Great disservice to the people

Meanwhile, the Gawa at Prinsipyo Coalition, in a statement, said it would be a grave disservice to Filipinos if the Comelec prematurely excluded Poe’s name from the list because she is clearly a natural-born Filipino and has been a resident of the Philippines for more than 10 years.

“While we are not surprised with the final outcome of the decision of the en banc on Sen. Grace Poe’s certificate of candidacy, we are surprised with the timing [of] this decision given that it is already the holiday season,” it added.

“Christmas is about hope. Do not kill our hope, dear commissioners, Keep Poe’s name in the ballot,” it added.

Palace hoping for fair ruling

Malacanang also on Wednesday expressed hope that the High Court will issue a fair ruling on Poe’s disqualification case.

“In our system of laws, decisions on qualifications of presidential candidates are made by the Comelec and are appealable to the Supreme Court as the final arbiter,” Communications Secretary Herminio Coloma Jr. said in a statement.

“We join our people’s hope and trust that any decision[s] that will eventually be rendered on the matter are imbued with fairness and justice,” he added.

source:  Manila Times

MEL STA. MARIA | SC decision is a setback: 'No Bio No Boto' emasculates our democracy

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