Wednesday, January 9, 2013

OPEN LETTER TO GRACE PADACA



OPEN LETTER TO GRACE PADACA



January 9, 2013
Manila

To: HON. MA. GRACIA CIELO MAGNO PADACA

Hello Ma'am Grace,

We revolt!

I believe you are our only hope that honesty and decency will put an end to mediocrity as well as stealth and filth at the Commission on Elections.

In case I am an unknown to you, I am Atty. Berteni "Toto" Cataluña Causing, a Gerry Roxas Leadership Awardee like you.

WE ARE REVOLTING TO THE GROSS IGNORANCE SHOWN BY COMMISSIONERS WHO ARE LAWYERS AND CHAIRMAN SIXTO BRILLANTES JR., A BAR TOPNOTCHER AT THAT.

 We are filing a disbarment action and an impeachment complaint for betrayal of public trust, or after their term of office a case before the Ombudsman for violation of Section 3(e) of Republic Act 3019 against all of them for promulgating this manifestly unjust Resolution No. 9604.

We forgive and spare you because you are not a lawyer.

Our partylist is ALAB NG MAMAMAHAYAG (ALAM), one of the 13 groups that were excluded by the Comelec in your Resolution No. 9604 dated January 7, 22013.

The justification cited by that Resolution No. 9604 was Comelec Resolution No. 9591, because this limits the list only to the newcomers denied of their application for accreditation but were able to get "mandatory injunction."

This is GROSS IGNORANCE, Ma'am.

I beg your pardon in proclaiming this.

Why?

The first reason is this:

On June 15, 2012, the Comelec promulgated Resolution No. 9467 where its Section 1 states that those partylist applicants denied by the Comelec that still have pending petitions before the Supreme Court are allowed to participate in the raffle for the determination of the placement of the partylist groups in the official PCOS ballot.

Comelec sent three notices to ALAM and 12 other groups situated similarly as ALAM’s to participate in the raffle in all three occasions that it was set, including the last that occurred on January 4, 2013. ALAM drew Slot No. 34.

If we understand Status Quo order issued in our petition on December 4, 2012 as preserving what were there before the denial by the Comelec, those that must be preserved includes Resolution No. 9467.

Therefore, the new Resolution No. 9591 that was issued only after the Status Quo orders were issued CANNOT AMEND Resolution No. 9467.  The Status Quo order prohibits the Comelec from amending or revoking Resolution No. 9591.

I am attaching here the whole copy of the Urgent Petition for Certiorari that we filed on January 8, 2012 before the Supreme Court, where we set forth the other legal reasons showing Resolution No. 9591 as a big mistake.  If you are interested to read it you have a reference. Please don't hesitate to consult your lawyers.

Another reason is this. IF THE STATUS QUO ORDERS PROHIBIT DISAPPROVAL AND EXCLUSION, WHAT DOES IT MEAN? THE LOGICAL ANSWER? There is no other that is left after the process of deduction removes “disapproval or exclusion” but APPROVAL.

Still another reason:  COMPARE THIS SITUATION WITH HUMAN BEINGS AS CANDIDATES WHO WERE DISQUALIFIED OR WHOSE CERTIFICATES OF CANDIDACIES WERE CANCELLED BEFORE THE ELECTION DAY BUT THAT THEIR NAMES ARE NOT REMOVED FROM THE BALLOTS BECAUSE THEY APPEALED.   

Is it not discriminating against groups that are marginalized in the first place but will not be treated similarly as human beings as candidates?  What are the substantial differences or distinctions between human beings as candidates and partylist groups as candidates?

One more reason:  Section 72 of the Omnibus Election Code mandates that as long as the disqualification or the cancellation of the certificates of candidacies are not yet final or are still being challenged, they can still be proclaimed if they won.  This section does not classify that it is only applicable to human beings as candidates, so that the Comelec cannot make classifications and reject the partylist.

By the way, why will the Comelec arrogate unto itself the whim and caprice to remove applicants when it cannot assure itself that its decisions are correct but are only subject to the inherent biases?

Detailed and other legal reasons and principles are stated in our URGENT PETITION to the Supreme Court filed on January 8, 2013.

It is up to you, Ma'am, to listen to our reverberating cry for justice.

I am not seeking favor. It is up to you to decide on your conscience based on what you honestly believe is just and right.


Respectfully yours,


BERTENI "TOTO" CATALUÑA CAUSING
President, ALAM

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

READ THE ENTIRE COPY OF THE URGENT PETITION OF ALAM BELO



Republic of the Philippines
Supreme Court
Manila



ALAB NG MAMAMAHAYAG (ALAM)
represented by ATTY. BERTENI
CATALUÑA CAUSING,
Petitioner,

-versus-                                                          G.R. No. ___________
                                                                        [From: SPP NO. 12-127 (PL)]
                                                                       

COMMISSION ELECTIONS,
Respondent,
x--------------------------------------------------------x


Urgent Petition
for Certiorari
with
Extremely Urgent
Application
for
Temporary Restraining Order (TRO)


Petitioner ALAB NG MAMAMAHAYAG (ALAM), by the undersigned law firm, URGENTLY FILES this Petition for Certiorari with EXTREMELY URGENT application for Temporary Restraining Order (TRO).


The Timeliness

            On 7 January 2013 (today), the public respondent Commission on Elections promulgated Resolution No. 9604, the subject of the certiorari.

            It was a resolution done without notifying the grievously affected parties, petitioner ALAB NG MAMAMAHAYAG (ALAM) and twelve (12) other partylist groups similarly situated.

            Since it is being filed today (7 January 2013), there is no issue as to its timeliness considering that this is a certiorari action.


The Parties


            The petitioner is ALAB NG MAMAMAHAYAG (ALAM), whose principal office of business is located at Ground Floor, National Press Club Bldg., No. 1 Magallanes Drive, Intramuros, Manila.

            In this case, it is represented by its president, BERTENI CATALUÑA CAUSING, who also acts as the lead counsel in this petition and he as a lawyer and as the representative of ALAM may be served with processes at his law office, RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES, Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila.

            The respondent is the COMMISSION ON ELECTIONS (Comelec), that may be served with orders and other processes at its headquarters at 8th Floor, Palacio del Gobernador, General Luna St. corner Andres Soriano St., Intramuros, Manila.


The Reasons for Allowance


            This is a petition for certiorari ground on EXTREMELY GRAVE ABUSE OF DISCRETION by the Commission on Elections.

On its own, or motu proprio, the public respondent promulgated Resolution No. 9604 dated 7 January 2013 (today), resolving to EXCLUDE FROM THE LIST thirteen (13) partylist organizations, including ALAB NG MAMAMAHAYAG (ALAM), of partylist groups allowed to take part in the 2013 Partylist Elections.

Worst, despite knowledge that at least 13 partylist groups will be gravely affected, the public respondent did not have the temerity of at least respecting the due process rights of the “Lucky 13” groups, including ALAM.  The public respondent did not inform the same parties that they were up for agenda today (January 7, 2013) and that their rights might be severely affected.

The public respondent was fully aware that the petitioner and 12 other similarly-situated groups were called in and allowed to participate in the raffle for the purpose of determining placements or slots in the official PCOS ballots.

It is elementary to any lawyer that the petitioner and the 12 others already AQUIRED VESTED RIGHT TO BE PROTECTED BY DUE PROCESS CLAUSE OF THE CONSTITUTION after it had already drawn their slot numbers for their placements in the official PCOS ballot.

In the case of ALAM, it drew Slot No. 34 in the PCOS ballot during the raffle held for the purpose on January 4, 2013.

Yet, the Comelec did not even call in the petitioner and the 12 others to be given a day in court even for a summary hearing to show cause why they should not be excluded from the list.

The Comelec cannot hide behind their claim that it was their mistake that ALAM and the 12 others were allowed to join the raffle.

BUT MOST IMPORTANTLY, the Comelec has been under a standing injunction issued by the Supreme Court with respect to ALAM and the 12 others.

The Comelec must have known that the Supreme Court issued a Resolution dated December 4, 2012 requiring the parties to OBSERVE THE STATUS QUO PREVAILING BEFORE THE ISSUANCE OF ITS CHALLENGED RESOLUTIONS, including the one issued against ALAM.

Further, the Supreme Court stated that this Status Quo order is WITHOUT PREJUDICEE TO THE FINAL RULING OF THE SUPREME COURT.

This resolution was issued in consolidated petitions, including the one filed by ALAM docketed G.R. No. 204139.

All these were known by the Comelec because the same Court resolution was served on the Comelec.

Despite this knowledge of the injunction and despite the knowledge that the act of prejudicing ALAM and 12 others are prohibited by the Status Quo orders, it is without doubt that the public respondent committed these acts with malice, a manifestation of bias.

The act of not giving ALAM and 12 others the opportunity to explain and the act of defying the Status Quo order are more than sufficient to conclude that the public respondent COMMITTED EXTREMELY GRAVE ABUSE OF DISCRETION amounting to total lack or excess of jurisdiction.

Earlier in the day, ALAM filed before the Comelec an Urgent Motion for Clarification owing to the fact that Comelec Chairman Sixto Brillantes Jr. and Commissioner Rene V. Sarmiento had announced to the media a day before that they would revoke the raffle numbers drawn by ALAM and the 12 others similarly-situated.

Only to turn out that this Urgent Motion for Clarification was rendered MOOT AND ACADEMIC.

Because this is a separate matter that involves separate facts, this petition is filed as an action separate from ALAM’s petition for certiorari in connection with the denial by the Comelec of ALAM’s petition for accreditation for the 2013 Partylist Elections.

Another reason why this is filed separately is to simplify the issue for easier and speedier resolution.

A certified true copy of the challenged Resolution No. 9604 is attached hereto as ANNEX “A.”

Hence, reasons dictate that this petition be given due course.


The Brief Facts

            On 15 June 2012 public respondent Commission on Elections promulgated Resolution No. 9467, which states, among others:

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.


            On 7 November 2012, the Comelec denied the motion for reconsideration filed by ALAM against the Order issued by its Second Division, denying the petition for accreditation of ALAM on the ground of lack of “track record” although recognizing the national existence of the petitioner.  (Please refer to the records of G.R. No. 204139.)

            On 19 November 2012, the petitioner filed its Petition for Review and Certiorari and Prohibition challenging the resolution of the Comelec En Banc denying ALAM’s motion for reconsideration.  Therein, three Commissioners and the Chairman signed for the denial, two commissioners signed for the granting of the motion, and one for abstention. (Please refer to the records of G.R. No. 204139.)

            On December 4, 2012, the Supreme Court issued a consolidated resolution covering among others, the petition of Alab ng Mamamahayag (ALAM) entitled “ALAB NG MAMAMAHAYAG (ALAM) represented by ATTY. BERTENI CATALUÑA CAUSING VS COMMISSION ON ELECTIONS” and docketed as GR No. 204139.

            The same resolution ordered all “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.”

            On 06 December 2012 the Comelec promulgated Resolution No. 9572 issuing no other matter except for changing the date of raffle for the partylist from December 14, 2012 at 1:30 p.m. to December 17, 2012 at 1:30 p.m.

            On 12 December 2012, the Comelec promulgated Resolution No. 9577 resetting the date of raffle to January 4, 2013 at 1:30 p.m.

            Two days before January 4, 2013, the petitioner read the announcement of the raffle on the website of the Comelec, listing therein ALAM as one of those participating therein.

            On January 4, 2013, ALAM participated in the raffle and it was called to draw its slot number.

            During the draw, ALAM secretary general Edwin R. Alcala drew Slot No. 34.

            The same was announced subsequently in almost all news websites and broadcast entities and published the next day in hard copies of the newspapers.     

The announcement prompted ALAM to prepare the Urgent Motion for Clarification to ask the Comelec to clarify its position with respect to ALAM and 12 other similary-situated groups.

On January 7, 2013, in the morning, the petitioner filed its Urgent Motion for Clarification.

The Comelec called up the office of petitioner ALAM advising to pick up a resolution.

Shocked, the said resolution, Resolution No. 9604, promulgated 7 January 2013, resolved as follows:

NOW THEREFORE, pursuant to the powers vested in it by the Constitution, the Omnibus Election laws, the Commission RESOLVED, as it hereby RESOLVES, to EXCLUDE from the list those new applicants who were not able to secure Mandatory Injunction, namely:

xxx     xxx     xxx

3. Alab ng Mamahayag (ALAM) Slot No. 34

xxx     xxx     xxx


This shocked ALAM president, Atty. Berteni Cataluña Causing, because he has known that the situation is akin to Section 72 of the Omnibus Election Code, that says:

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.


Section 72 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.

What also shocked Atty. Causing is the fact that there is this Resolution No. 9467 that is covered and protected by the Status Quo order of the Supreme Court issued in favor of ALAM on December 4, 2012.

As such, even Atty. Causing knew that there exists this Resolution No. 9591 that amended Resolution No. 9467 but he was so confident that this later resolution cannot amend Resolution No. 9467 because of the protection of the Status Quo Order.

Hence, this petition is filed.


The Issues


            The issues being submitted for resolution by this petition are as follows:

1.      Whether or not the Commission on Elections committed Grave Abuse of Discretion in promulgating Comelec Resolution No. 9604;

2.      Whether or not the Commission Elections committed Grave Abuse of Discretion in excluding Alab ng Mamamahayag (ALAM) and the 12 other partylist groups similarly situation from the list of for failure to secure Mandatory Injunction despite the existence of the Status Quo Orders in their favor.

3.      Whether or not the Commission on Elections committed Grave Abuse of Discretion in promulgating Comelec Resolution No. 9591 in so far as ALAM and the 12 other similarly-situated groups are concerned;

4.      Whether or not the Commission on Elections committed Grave Abuse of Discretion in using Comelec Resolution No. 9591 to authorize itself to exclude ALAM from the list;

5.      Whether or not the Commission on Elections committed Grave Abuse of Discretion in not following Comelec Resolution No. 9467; and

6.      Whether or not the Commission on Elections committed Grave Abuse of Discretion in not following the command or the spirit of Section 72 of the Omnibus Election Code.

These issues shall be discussed jointly, although presented in another manner.

The Discussions


Acts Evidencing Grave Abuse:
Predetermined to Kick Out Alam


Immediately after the raffle was conducted on January 4, 2013, various news reports were dispatched 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 Brillantes 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. 

This, even as he knew that it was too late.  ALAM and the 12 others cannot secure a mandatory injunction when he announced the requisite at a time when dusk was nearing on that Friday and yet they would conduct their en banc meeting in the morning of Monday.  It was deliberately done so as not to give ALAM and the 12 others that sufficient time to file a motion for injunction.

Candidly, ALAM was 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 Order from the Supreme Court 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 said 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 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 SQO 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.


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.


WHAT IS ENJOINED BY SQO 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.

This should be elementary for the Commissioners and the Chairman to discern.


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 Justifications for the Application of TRO


            On its website, the Comelec set the date of printing of ballots as January 20, 2013.

            If today is January 7, 2013 and the date it set for printing of ballots is January 20, 2013, there is indeed precariously little time left to afford the petitioner any leeway for whatever contingencies.

Considering further the contingencies that are supposed to be unexpected but very much expected as the calendar winds up to the last day of finalization of the candidates and partylist groups, and considering the seeming arrogance of the Comelec on its apparent predetermination to disqualify ALAM, there may have been no more time for the petitioner and 12 other groups similarly situated to take remedial actions, a temporary restraining order is compelling.

The rights of the petitioner are clearly unmistakable.  (ALAM resolution authorizing Atty. Berteni Cataluña Causing is attached hereto as ANNEX “B”.)



The Prayer


WHEREFORE, it is prayed of the Honorable Court to grant the petition of ALAB NG MAMAMAHAYAG (ALAM) as well the 12 other similarly-situated groups to be included in the PCOS ballot.

Additionally, it is prayed that the Temporary Restraining Order (TRO) be issued.  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


Cc:

COMMISSION ON ELECTIONS
Palacio del Gobernador
Intramuros, Manila




EXPLANATION


            Lack of time compelled the service of this motion by registered mail.



BERTENI CATALUÑA CAUSING














x----------------------------------------------x
Republic of the Philippines                )
City of Manila                                     ) SC

VERIFICATION & CERTIFICATE
OF
 NON-FORUM SHOPPING

I, BERTENI C. CAUSING, of legal age, Filipino, a resident of Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila, after having been sworn to in accordance with law, hereby declare under oath that I have caused the preparation of the Urgent Petition for Certiorari with Temporary Restraining Order, read and understood the same and the allegations therein are true and correct of my personal knowledge and based on authentic records.

I further certify that other than this venue and jurisdiction and except for the Commission on Elections, I have not filed any other action having similar facts, parties and reliefs prayed of in any quasi-judicial offices, courts, or tribunal and should I learn one I undertake to inform the Honorable Office about it within five (5) days from knowledge.

IN WITNESS WHEREOF, I sign this Verification and Certificate of Non-Forum Shopping on this 7 January 2013, in the City of Manila.




                                                              BERTENI C. CAUSING
IBP ID No. 60944


SUBSCRIBED AND SWORN TO BEFORE ME this 7 January 2013, in the City of Manila, affiant showing his evidence of identity as written above.

Doc. No.: _________                                                                   Notary Public
Page No.: ________
Book No.: ________
Series of 2013.



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