Monday, January 7, 2013

COMELEC MUST KNOW THAT STATUS QUO ORDER DOES NOT ORDER DISQUALIFICATION










COMELEC MUST KNOW THAT STATUS QUO ORDER DOES NOT ORDER DISQUALIFICATION 

The Motion for Clarification I wrote below questions the Commission on Elections' plan to exclude the "Lucky 13" partylist groups,  including Alab ng Mamamahayag (ALAM), from the PCOS ballot.just because the Supreme Court has not issued a Mandatory Injunction specifically instructing the Comelec to include the 13 in the ballot.

These 13 were newly-organized partylist groups whose applications for accreditation were denied by the Comelec but who have filed a petition before the Supreme Court.  

The Supreme Court issued STATUS QUO ORDER enjoining the parties to observe the status prevailing before the issuance of the Comelec's disqualification resolutions without prejudice to the final ruling of thee High Court.

Please read my pleading so that you will know the finest arguments I have imagined.

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Republic of the Philippines
Commission on Election
Manila

EN BANC


IN RE: PETITION FOR REGISTRATION
UNDER THE PARTY-LIST SYSTEM OF
REPRESENTATION IN CONNECTION
WITH THE MAY 13, 2013 NATIONAL
AND LOCAL ELECTIONS, AND
SUBSEQUENT ELECTIONS THEREAFTER


ALAB NG MAMAMAHAYAG, represented
by BERTENI CATALUÑA CAUSING                           Case No. SPP-12-127(PL)
Petitioner,
x----------------------------------------------x


Urgent Motion
for
Clarification


Petitioner ALAB NG MAMAMAHAYAG (ALAM), by the undersigned law firm, respectfully moves for the CLARIFICATION FOR INCLUSION of ALAM and twelve (12) other partylist groups similarly situated in the official PCOS ballots.

This motion for clarification is being filed as an urgent matter.

This motion was prompted by various news reports quoting the Honorable Chairman Sixto U. Brillantes Jr. that the 13 groups, including ALAM, should have not been included in the raffle and it was a matter of clerical error that the same groups were included during the January 4, 2013 raffle to determine the placement of partylist candidates in the official PCOS ballot. 

Additionally, it was also quoted that Honorable Chairman Sixto U. Brillantes Jr. issued statements that any of the 13 partylist groups, including ALAM, that fails to get a mandatory injunction from the Supreme Court will not be included in the official PCOS ballots.

Candidly, ALAM is banking on the wisdom of Chairman Brillantes because he is a bar topnotcher and has been reputed to be one of the brilliant election lawyers the country has have.

Also, Comelec Commissioner Rene V. Sarmiento also issued statements that these 13 partylist groups that got Status Quo Ante Order from the Supreme Court shall should have also not been included in the same raffle and that these groups shall be removed from the list of partylist groups to be included in the PCOS ballots.

Commissioner Sarmiento also issued a statement that says that the Comelec may remove these 13 partylist groups and the members of the Commission will discuss what to do with the slots that will be left vacant once these 13 are removed.

This group “of LUCKY 13” have these things in common: (a) they all applied for accreditation for the first time; (b) they were all disqualified by the division and the en banc Comelec; (c) they all filed petitions before the Supreme Court challenging the resolutions of the divisions and the en banc; and (d) the Supreme Court issued Status Quo Ante Orders in all their petitions.

Meanwhile, the Status Quo Ante Orders (SQAO) directed the parties “TO OBSERVE THE STATUS QUO PREVAILING BEFORE THE ISSUANCE OF TEH ASSAILED COMELEC RESOLUTIONS...WITHOUT PREJUDICE TO THE FINAL RULING OF THIS COURT ON THE MERITS.

One thing is certain.

The observance of the SQAO shall be “WITHOUT PREJUDICE TO THE FINAL RULING OF THE SUPREME COURT ON THE MERITS.”

Nevertheless, to prove the existence of these news reports, the following news stories and web addresses are hereby enumerated:

1.      “Brillantes refuses to OK Comelec raffle” – Rappler, which news story is found in this URL, http://www.rappler.com/nation/19150-brillantes-refuses-to-validate-historic-comelec-raffle;

2.      “Listahan sa balota ng party-list groups, nai-raffle na ng Comelec” – DZMM, which news story is found in the URL, http://dzmm.abs-cbnnews.com/news/National/Listahan_sa_balota_ng_party-list_groups,_nai-raffle_na_ng_Comelec.html;

3.      “Comelec raffles party-list slots” – Journal Online, which news story is found at this URL, http://www.journal.com.ph/index.php/news/top-stories/42391-comelec-raffles-party-list-slots;

4.      “Shadings of SC terminology cited as cause of Comelec boo-boo” – Malaya Business News Online, which news story is found at this URL, http://www.malaya.com.ph/index.php/news/nation/21085-shadings-of-sc-terminology-cited-as-cause-of-comelec-boo-boo;

5.      “Comelec to decide today on disqualified party-list groups” – Philippine Star, which news story is found at this URL, http://www.philstar.com/headlines/2013/01/07/894146/comelec-decide-today-disqualified-party-list-groups;

6.      “13 partylists should not be part of Comelec raffle, says Brillantes” – Inquirer, which news story is found at this URL, http://newsinfo.inquirer.net/335153/13-partylists-should-not-be-part-of-comelec-raffle-says-brillantes.

7.      “Confusion mars party-list raffle” – Tribune, which news story is found at this URL, http://www.tribune.net.ph/index.php/nation/item/8753-confusion-mars-party-list-raffle.

There were dozens of other website delivering substantially the same news story.



The Position of ALAM


            With the respect, the opinion and position of Alab ng Mamamahayag (ALAM) is that the “LUCKY 13” partylist groups that included ALAM must be included in the PCOS ballot, unless the Supreme Court issued final rulings denying their respective petitions.



The Justifications


In summary, there are at least sixteen (16) justifications why ALAM and 12 others similarly situated groups must be included in the PCOS ballot unless the Supreme Court denies their respective petitions are as follows:

1.      What is being enjoined in the main by the Status Quo Ante Order (SQAO) of the Supreme Court is the Comelec’s decision NOT TO ENFORCE its denial of accreditation to ALAM and 12 other similarly-situated partylist groups;

2.      Non-inclusion of ALAM and the 12 others in the official PCOS will VIOLATE the Status Quo Ante Orders (SQAOs).

3.      Non-inclusion of ALAM and the 12 others in the official PCOS will PREJUDICE the final ruling of the Supreme Court on the merits;

4.      Non-inclusion of ALAM and the 12 others in the official PCOS will RENDER MOOT and ACADEMIC their petitions and the rulings of the Supreme Court;

5.      Non-inclusion of ALAM and the 12 others in the official PCOS ballot is AN ACT OF PRE-EMPTION and it is tantamount to dictating the Supreme Court as to what should it be its decision;

6.      Non-inclusion of ALAM and the 12 others in the official PCOS will be a DISRESPECT to the Supreme Court;

7.      Non-inclusion of ALAM and the 12 others in the official PCOS will be a violation to the RULE OF DEFERENCE;

8.      Non-inclusion of ALAM and the 12 others in the official PCOS will be  a CULPABLE VIOLATION OF THE CONSTITUTION, a ground for impeachment;

9.      Status Quo Orders (SQOs) carry with it the implied directive to include the names of the individual candidates or partylist candidates in the PCOS ballots;

10.  It is impossible to REVERSE the system of Precinct Count Optical Scan (PCOS) and Consolidation and Canvassing System (CCS) machines and the printing of the ballot template if only to allow later ALAM or any of the 12 other partylist groups once the Supreme Court grants any of their respective petitions;

11.  Prudence dictates inclusion;

12.  Inclusion is not prejudicial to the Comelec;

13.  Inclusion is not prejudicial to the voters;

14.  Inclusion is not prejudicial to the Supreme Court’s final ruling on the petitions of these “Lucky 13” groups;

15.  Inclusion in the raffle carries with it the implied inclusion in the PCOS and CCS and the printing of the ballot template;

16.  Inclusion in the raffle was commanded by Comelec Resolution No. 9467.

17.  Inclusion in the PCOS and CCS and the printing of the ballot template is the middle ground and the fairest of all solutions to the confusion.



The Discussions


WHAT IS ENJOINED BY SQAO IS COMELEC’S
ORDER DENYING THE ACCREDITION OF ALAM


            This can never be any clearer.

            When the Supreme Court issued a Status Quo Order, it in effect commands the Comelec not to enforce its order denying accreditation to ALAM and 12 other similarly-situated partylist groups.

            This is so even as the SQO is not also an order for the Comelec to deny ALAM and 12 other similarly-situated groups.

            This logical inference is very clear.

            When ALAM filed its petition for accreditation as a partylist group for the 2013 Partylist Elections, it was not yet denied of its accreditation.

            When the Comelec’s Second Division denied ALAM’s petition for accreditation but ALAM timely filed a motion for reconsideration, there is no denial of accreditation that can be spoken of yet.

            When the Comelec’s En Banc denied ALAM’s motion for reconsideration and ALAM filed a timely petition before the Supreme Court, there is no denial of accreditation that can be spoken of yet. 

There is NOTHING in any of the resolutions of the Comelec, including Resolution No. 9366 (setting out the rules of procedure for partylist application for accreditation and other related matters), that says that a decision of the Commission En Banc must be executed immediately if a petition for certiorari is filed before the Supreme Court.

NOW, there are only two things that can happen with respect to the application for accreditation of any partylist group: DENIED or APPROVED.

If it cannot be said that the partylist application of any group is denied, ONLY ONE THING IS LEFT.

So that if it is not denied, then it is APPROVED.

There is no middle ground.

Precisely, this is the wisdom behind why the Comelec itself promulgated on 15 June 2012 its Resolution No. 9467.

BUT if the Supreme Court issued a Status Quo order, it becomes all the more express and explicit that the partylist groups having pending petitions before the Supreme Court CANNOT BE DEEMED DENIED.

And because the Comelec has no reason to say that ALAM and 12 other similarly-situated groups are denied of their application for accreditation, the only logical conclusion for the Comelec to take is to CONCLUDE that ALAM is deemed approved until the Supreme Court says otherwise with finality.


NON-INCLUSION IN PCOS BALLOT
VIOLATES STATUS QUO ANTE ORDER


            The non-inclusion of ALAM and the 12 others in the official PCOS ballot will VIOLATE the Status Quo Orders (SQOs) of the Supreme Court.

This is so because it will violate the statuses existing at the time before the issuance by the Commission of the resolution disqualifying ALAM and the 12 other similarly-situated groups.

Perhaps, the Commission overlooked their resolutions denying the accreditation petitions of the “Lucky 13” groups are not the only things that were there at the time of the issuance of its en banc resolution denying the petition for accreditation of ALAM and 12 other similarly-situated groups.

Perhaps, the Commission overlooked that it issued Resolution No. 9467 which states in Section 1, as follows:

SEC. 1 Requirement. – Only party-list groups/coalitions accredited by or duly registered with the Commission and which have manifested their desire to participate in the party-list election, may participate in the raffle for purposes of determining their order of listing in the ballot. However, party-list groups/coalitions whose petitions for accreditation have been denied by the Commission and have pending petitions before the Supreme Court questioning the decision of the Commission shall also be allowed to participate in the raffle.


Because Resolution No. 9467 has been one of the status quo matters at the time of the issuance of the Status Quo Ante Orders, the Comelec is bound to observe Resolution No. 9467.

It must be recalled that Resolution No. 9467 was promulgated on 15 June 2012.  The SQO was issued by the Supreme Court in its En Banc Resolution on December 4, 2012.  As such, there is no issue that the SQO was issued much later to cover Resolution No. 9467.

Also, the Comelec’s final denial of ALAM’s petition was contained in a resolution dated November 7, 2012, a date that is much later than the date of promulgation of Resolution No. 9467.

During the interregnum from June 15, 2012 and November 7, 2012, there has been no resolution that was promulgated to amend Resolution No. 9467. 

The amending resolution, Resolution No. 9591, was promulgated December 19, 2012, already way past the time the Supreme Court issued the SQO.

For sure, there is no argument that if the Commission violates its own Resolution No. 9467 it will also be a violation to the SQO of the Supreme Court in the case of these “Lucky 13.”

Now, if Resolution No. 9467 mandates that partylist groups whose petitions for accreditation were denied by the Comelec but have pending petitions before the Supreme Court questioning the decision of the Commission shall be allowed to participate in the raffle, the Comelec is obliged to follow its own resolution.

And if ALAM and the 12 other similarly-situated groups were notified to participate in the raffle on January 4, 2013, and that that these “Lucky 13” were indeed allowed to draw their numbers, the obvious purpose of Resolution No. 9467 is to include them in the PCOS ballots if the following conditions are met: (a) if the printing of PCOS ballots must start because time is running out; (b) the printing once started is IRREVERSIBLE; and (c) the petitions of the concerned partylist groups are still pending with the Supreme Court.

The irreversibility nature of the procedure is the key to understand the purpose of Resolution No. 9467.

Once the Commission finalizes the list of candidates and send the database for the printing of the template of the PCOS ballots and for the programming of the names of the candidates in the Consolidation and Canvassing System (CCS), that act cannot be reversed anymore once the start button is pressed.  It is impossible to go back to start from Step No. 1 again.

In other words, once the list is finalized and the printing is ordered, IT WILL BE IRREVERSIBLE. 

To prove the irreversibility of the PCOS system, the dissenting opinion of Justice Roberto Abad in the case decided by the Supreme Court, Philippine Guardians Brotherhood vs Comelec, G.R. No. 190529, March 22, 2011, is being cited here, to wit:

On January 25, 2010 (a Monday) PGBI filed its motion for reconsideration of the Court’s January 12, 2010 resolution that dismissed its petition. It also asked anew for the issuance of a TRO.

Meantime, on January 30, 2010 the COMELEC published the certified final list of candidates for both local and national positions by posting it on its website, with the following statement: "Should there be misspelling, omission or other errors, the concerned candidate shall call the Law Department’s attention within 5 days from this publication for the purpose of correction."

Also on January 30, 2010 the COMELEC submitted to Smartmatic-TIM, Inc. the data base the latter was to use for the configuration of the Precinct Count Optical Scan (PCOS) and Consolidation and Canvassing System (CCS) machines and the printing of the ballot template. The submission of this data base to Smartmatic-TIM was the irreversible point against any further attempt to insert in the list the names of other candidates or parties to be voted on in the national and local elections of May 10.

On February 2, 2010 (a Tuesday), acting on PGBI’s motion for reconsideration dated January 25, the Court resolved to issue an order directing the COMELEC to revert PGBI’s case to the status quo prior to the controversy, meaning that COMELEC was to reinstate PGBI’s name in the official list of parties and individuals that could be voted on in the elections. The Court caused the resolution to be served on the COMELEC on the same day, February 2.

On February 3, 2010 the COMELEC noted the Court’s status quo order which, if enforced according to it, meant recalling the data base that was then being used in the on-going configuration of the PCOS and CCS machines and the printing of the ballot template. As it happened, Smartmatic-TIM had in fact finished 500 of the 1,674 ballot templates needed for the elections and was about to submit these to the COMELEC on the same day for verification and approval. Such a recall, COMELEC added, would have meant a failure to print 4.8 million ballots on time.


So that if assuming that the Comelec’s last day to print the PCOS ballot is now, it is duty-bound to include the name of ALAM in the official ballot.  OTHERWISE, it cannot pay with money the priceless and inviolable right to be listed in the PCOS ballot once the Supreme Court rules in favor of ALAM.

So that it is logical that when the last day for the Comelec to submit the final list for printing came and there is no decision yet from the Supreme Court, which decision is almost impossible to happen before the final day for printing could come, the Comelec has no discretion.   It is mechanical and ministerial for it to include the name of ALAM in the official PCOS ballot.

To say otherwise is not logical.

And if otherwise is not logical, there is no other conclusion but that logic dictates that ALAM and 12 other similarly-situated groups must be included in the official PCOS ballot.


NON-INCLUSION OF ALAM IN PCOS BALLOT IS
PREJUDICIAL TO THE FINAL RULING OF SC


Non-inclusion of ALAM and the 12 others in the official PCOS ballot will surely PREJUDICE the final ruling of the Supreme Court on the merits.

For what would be is the directive of the Supreme Court when it said:

“(c) REQUIRE the parties to observe the STATUS QUO prevailing before the issuance of the assailed COMELEC Resolutions...without prejudice to the final ruling of this Court on the merits.”


If the Comelec will not include ALAM and the 12 other similarly-situated groups in the final PCOS ballot and the Supreme Court has not yet decided on the petition of ALAM, the result may be any of the two: (a) if the SC decides later in favor of ALAM, the final ruling of the SC is prejudiced; (b) if the SC decides later to deny ALAM’s petition, the final ruling of the SC is not prejudiced.

Neither the Comelec nor ALAM can predict what would be the Supreme Court’s final ruling.  But in the face of the truth that prejudice against the final ruling has a 50% chance of happening, logic dictates for the Comelec to be on the safe side.

And the safe side is only one: INCLUSION OF ALAM IN THE PCOS BALLOT.

NON-INCLUSION OF ALAM IN PCOS BALLOT
RENDERS THE PETITION AND FINAL RULING
MOOT AND ACADEMIC; LIKE EXECUTION OF
A “DEATH SENTENCE” WITHOUT A VERDICT


Non-inclusion of ALAM and the 12 other similarly-situated groups in the official PCOS will RENDER MOOT and ACADEMIC their petitions and the final rulings of the Supreme Court.

It is also like executing the “death sentence” on ALAM without any verdict.

It is an antithesis to the immortal shout of Voltaire: “STRIKE! BUT HEAR ME FIRST!”

Everybody, including any juridical person such as ALAM, is entitled to due process.

Nobody can be punished without giving a chance to prove innocence.

In this case, the innocence of ALAM will be proven or disproven only after the Supreme Court finally rules on its petition.

Hence, until such final ruling unfavorable to ALAM comes, ALAM cannot be executed in the gallows.

It is like a convict sentenced to death.   If there is a pending petition before the Supreme Court in the hope of a reprieve, no country in the world executes any death convict until the final verdict of its Highest Court is delivered, no matter how correct the decision of the jury or the trial court or no matter how strong the evidence of guilt is.

Ergo, it is not only that the non-inclusion will render the petition of ALAM and the final ruling of the Supreme Court moot and academic.

It is also a death sentence without a final verdict.

This is not a simple certiorari petition on a civil case whereby the lower court concerned can proceed to implement its challenged order if the higher court does not issue a mandatory injunction or a temporary restraining order (TRO) or a preliminary injunction.

This is like a criminal case where what is at stake is liberty or death of the accused.

Under the Revised Rules of Criminal Procedure, a decision of the Regional Trial Court on the appeal from the Municipal Trial Court is expressly stated as not final and executor if the accused filed a timely petition for review.

Under the Rules of Civil Procedure, where only money or property is at stake, the decision of the Regional Trial Court on the appeal from the Municipal Trial Court is expressly stayed or not implemented.

But under most of the Rules of Administrative Procedure, where what is at stake is the job or employment, the decision of the Ombudsman or the Chief of the Philippine National Police is immediately executed.

The difference between the criminal law and the civil law on one hand and the administrative law on the other hand is that life, liberty and property are FUNDAMENTAL RIGHTS while the right to employment is a mere privilege conferred.

Now, where do we place the right of suffrage that is at stake in this case?

There is no doubt that the right of suffrage is also a FUNDAMENTAL RIGHT. Actually, it is a RIGHT HIGHER THAN A PROPERTY RIGHT.

Right of suffrage is like a right to life and liberty. All these rights are INVIOLABLE. They cannot be denied when demanded.

In fact, imprisonment is higher in degree if a grave coercion is for the purpose of preventing any person from exercising his right to vote and right to be voted upon.

Right of suffrage is given primacy in the hierarchy of rights because it is where the future of the country and democracy begins and depends.

So that if the decision of an appellate court is stayed or the imprisonment or the order to pay is not implemented, the same must be said of the right of suffrage: the decision of the Comelec to deny due course to or cancel the certificate of candidacy or disqualify for being nuisance must also be stayed if the aggrieved party timely files a petition before the Supreme Court.

This also proceeds from the theory that the Comelec cannot always assure that its decision is correct so that it must be reviewed first before it can be allowed to deprive rights related to election.

Give me death or my vote!


NON-INCLUSION IN PCOS BALLOT
PRE-EMPTS THE SUPREME COURT


To not include ALAM and the 12 other similarly-situated groups in the official PCOS ballot is AN ACT OF PRE-EMPTION and it will be tantamount to dictating the Supreme Court as to what to do with the pending petitions.

The Supreme Court is the highest judicial body in the country. 

To remove from the Supreme Court its only means to make its decision no longer a reality is compelling it to lose its face before the people. 

It is like dictating upon it to agree to the decision of the Comelec for after all the Comelec will decide anyway to strip a partylist group of the right of suffrage.

As such, to pre-empt the Supreme Court as to what it would say is like dictating on it as to what it should do and the Judiciary’s independence is hampered.

It is also like a rule of the arrogant for the Comelec to pre-empt the Supreme Court.

The last bastion of liberty, justice and honor of the people is no one but the Supreme Court. 

For sure, any act of pre-emption will undermine or destroy the Supreme Court’s reputation before the people.

This cannot be permitted.


NON-INCLUSION IN PCOS BALLOT
DISRESPECTS THE SUPREME COURT


As demonstrated above that the final ruling of the Supreme Court would be prejudice and rendered moot and academic, and that the pre-emption cannot be permitted as an act of a dictatorship, it is no doubt a big disrespect to the Supreme Court for the Comelec not to include ALAM and the 12 other similarly-situated groups in the official PCOS ballot.

It will be an unforgivable. It is a DISRESPECT to the Supreme Court in the highest order. 

Of course, it needs no argument that it is a must that any act that disrespects the majesty of the Supreme Court is totally unacceptable.

So that the Comelec’s hands are tied. It cannot say otherwise. It has no choice.

It cannot exclude ALAM and 12 other similarly-situated groups from the PCOS ballot.


NON-INCLUSION IN PCOS BALLOT VIOLATES
THE PRINCIPLE OF DEFERENCE


            If in a simple certiorari action in any civil case the lower courts even observe deference to the higher courts, with more reason that the Comelec give deference to the wisdom of the order and the people.

            This rule of deference in a simple certiorari case is being observed even without any status quo order or any temporary restraining order, as long as a petition for certiorari is filed.

            With more reason that deference by the Comelec is imperative when the Supreme Court issued a status quo order.

            If the Comelec says that it is confused, with more reason that it must resolve the doubts in favor of not causing prejudice to ALAM. 

To exclude ALAM from the PCOS ballot is no doubt a prejudice.

            Additionally, it is a principle in the election law that all doubts shall be resolved in favor of the will of the voters.

            Because the function of determining which partylist should win or not depends on the will of the voters, the best the Comelec could do is defer to the will of the voters.

Let the voters decide on the fate of ALAM.

After all, this is more of a political question that only the voters can decide as to what should be the answer.


NON-INCLUSION IN PCOS BALLOT IS
CULPABLE VIOLATION OF THE CONSTITUTION


To not include ALAM and the 12 other similarly-situated groups in the official PCOS ballot is a CULPABLE VIOLATION OF THE CONSTITUTION, a ground for impeachment.

This is because the Constitution proclaims that the SOLE and EXCLUSIVE POWER to determine qualifications, returns and election as to any member of the House of Representatives belongs only to the same body through its House of Representatives Electoral Tribunal (HRET).

For the Comelec to insist on not including ALAM because it already “disqualified ALAM,” the term it has habitually used over the years, is like arrogating unto itself the exclusive power of the House of Representatives through the HRET.

            This is also a violation of a high order.  As such, it is no doubt that it is a ground for impeachment.


SQO IMPLIEDLY DIRECTS INCLUSION
OF CANDIDATES IN PCOS BALLOT


As shown above the SQO directs the enforcement of Resolution No. 9467.

Resolution No. 9467 mandates the inclusion in the raffle of partylist groups having pending petitions before the Supreme Court.

The inclusion of ALAM and 12 other similarly-situated groups in the raffle therefore impliedly carries the directive that it shall also be included in the PCOS ballot.

The same is the treatment if the affected party is a human being who was disqualified by the Comelec but that he managed to get a Status Quo Order from the Supreme Court.  This human being must be included in the PCOS ballot.

For what the heck is the purpose of the raffle?

Resolution No. 9467 is very clear: for the purpose of determining the placements of the partylist groups in the PCOS ballot.

Why would then Comelec now say that it will remove the “Lucky 13” from the list of those who would be included in the PCOS ballot unless they are able to get a mandatory injunction from the Supreme Court?

That is a grave abuse of discretion to say the least.

In many occasions it happened that the Comelec include in the official ballots the candidates for mayor or other positions despite the resolution of its division or en banc cancelling the certificate of candidacy or disqualifying the persons concerned.

This is consistent with Section 72 of the Omnibus Election Code that says that a candidate that is a subject of a disqualification or a cancellation of his certificate of candidacy must be submitted to the electorate to be voted upon if the disqualification or a cancellation case is not yet final.

To be clear, let Section 72 be read:

Sec. 72. Effects of disqualification cases and priority. - The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office.


 If this rule is applied to human beings as candidates, with more reason that it must be applied to partylist groups.  To say otherwise is a violation of the equal protection clause because there is no substantial distinction between natural persons and juridical persons, except that in the latter they are marginalized.

Now, since the Constitution recognize social justice to equalize all persons in the contest for privileges and enjoyment of rights, ordained the creation of partylist groups as representatives in the House of Representatives to represent the marginalized.

In the case of ALAM, there is no finality yet of the decision of the Comelec disqualifying or disapproving its application for accreditation.  If that is so, the same law under Section 72 of the OEC must apply with the same vigor to the case of ALAM and 12 other similarly-situated groups.

Ergo, there is no other conclusion but that ALAM must be included in the PCOS ballot.

Impossibility to include ALAM later when SC decides
in its favor and ballots already ordered for printing


As demonstrated above, the system of Precinct Count Optical Scan (PCOS) and Consolidation and Canvassing System (CCS) machines and the printing of the ballot template is an irreversible process.

Once started, it can never be stopped for the purpose of including new partylists that get that go signal from the Supreme Court.

Because this situation is abhorrent in the highest order, it must be avoided.

And the only way to avoid it is to include the “Lucky 13” groups in the PCOS ballot.


Prudence dictates inclusion of ALAM


            As demonstrated in the foregoing discussions, there is no other rule that must be observed by the Comelec but prudence.

            And to observe prudence is to avoid the grotesque and revolting events to happen.

            If ALAM is not included in the PCOS ballot and it is favored later by the Supreme Court, can the Comelec cure this?  Of course not!

            So that the only way to observe prudence under this situation is to include now the name of ALAM in the PCOS ballot.


Inclusion of ALAM in the PCOS
ballot will not prejudice Comelec

In many occasions that the Comelec includes names of candidates in the ballots even if these candidates were disqualified by it but that the decision has not become final yet.

If it can do that in countless times, it means that is not prejudicial to the Comelec.

The names of ALAM and 12 other similarly-situated groups are but one-liner for each when written in the PCOS ballots.

So that it will cost a space of 13 lines only.

It is therefore a small matter to spare for the Comelec as against the substantive and fundamental right that will be sacrificed if it denies 13 spaces from the “Lucky 13” group.

Moreover, in the 2010 elections, the Comelec allowed 187 partylist groups as against this time that there are only 130+ including ALAM and the 12 others.

If the Comelec was able to accommodate the much higher number of partylist groups in the 2010 elections, there is no reason that it cannot accommodate the “Lucky 13” groups.


Inclusion not prejudicial to voters


There is also no immediate prejudice that can be seen to be caused on the voters if ALAM and the 12 other groups are included in the PCOS ballots.

In the 2010 elections, no voter complained against the long PCOS ballot.

In fact, it was much easier for the voters because they experienced for the first time voting by means of blackening the circles.

There was also no report in the 2010 elections that said that voters found difficulty in voting for their choice of partylists.


Inclusion of ALAM will not prejudice SC final ruling

There is also no doubt that including ALAM and the 12 other similarly-situated groups into the PCOS ballot will not cause prejudice the final rulings of the Supreme Court.

This is so because if the Supreme Court rules disqualifying any of these “Lucky 13”, the only thing to do is not to proclaim if any of them wins and nothing to those that did not win.


Inclusion of ALAM is the middle
ground and the fairest solution


No doubt that in the face of the present confusion, the only fairest solution is the middle ground.  This is akin to a compromise agreement.

So that it is the better end of justice to include ALAM and the 12 other similarly-situated groups in the PCOS ballot.


Inclusion of ALAM commanded
by Resolution No. 9467


As discussed above, including ALAM is actually commanded by Resolution No. 9467 that reigns in the case of ALAM and the 12 other similarly-situated groups owing to the status quo order as explained above.

And to follow the command is to include the 13 in the raffle.  And to include in the raffle is to include them into the PCOS ballots.



The Prayer


WHEREFORE, it is prayed of the Honorable Commission to clarify whether ALAB NG MAMAMAHAYAG (ALAM) and the 12 other similarly-situated groups are included in the PCOS ballot.

And in so clarifying, it is respectfully prayed that it clarifies that they are included as prayed for.   Other reliefs just and equitable are also prayed for.

Respectfully submitted, Manila.  January 7, 2013.

RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila


By:

CIRILO P. SABARRE JR.
IBP No. 856677/ 01-03-2012
PTR No. 11731429 / 01-03-2012
Roll No. 53639  /   MCLE No. IV-0003755 / 12-07-2011




DERVIN V. CASTRO
IBP No. 836900/ 11-18-2010 up to 2012
PTR No. 0335125 / 01-03-2012
Roll No. 53624 / MCLE No. IV-0007336 issued 10 August 2012




BERTENI CATALUÑA CAUSING
IBP No. 894664 / 03-20-2012 / Manila
PTR No. 0675267 / 03-27-2012 / Manila
Roll No. 60944 / MCLE No. IV-0007338 issued 10 August 2012




NOTICE OF HEARING


THE EN BANC CLERK
En Banc Commission
Commission on Elections


            Please submit this motion for the clarification to the En Banc Commission urgently in the soonest possible time, in order not to render this motion moot and academic.



CIRILO P. SABARRE JR. / DERVIN V. CASTRO / BERTENI CATALUÑA CAUSING
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