PETITION FOR CERTIORARI AND PROHIBITION (WITH …...for the Issuance of a Writ of Preliminary...

REPUBLIC OF THE PHILIPPINES SUPREME COURT

MANILA KABATAAN PARTY-LIST REPRESENTED BY REP. JAMES MARK TERRY L. RIDON AND MARJOHARA S. TUCAY; SARAH JANE I. ELAGO, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES; VENCER MARI E. CRISOSTOMO, CHAIRPERSON OF THE ANAKBAYAN; MARC LINO J. ABILA, NATIONAL PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES; EINSTEIN Z. RECEDES, DEPUTY SECRETARY-GENERAL OF ANAKBAYAN; CHARISSE BERNADINE I. BAÑEZ, CHAIRPERSON OF THE LEAGUE OF FILIPINO STUDENTS; ARLENE CLARISSE Y. JULVE, and SINING MARIA ROSA L. MARFORI,

Petitioners,

- versus -

COMMISSION ON ELECTIONS,

Respondent. x----------------------------------------x

G.R. No. ______________ Petition for Certiorari and Prohibition with Application for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order

PETITION FOR CERTIORARI AND PROHIBITION

(WITH APPLICATION FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY

RESTRAINING ORDER)

Kabataan Partylist v. COMELEC of 32

PETITIONERS, through the undersigned counsel, unto the Honorable Supreme Court, most respectfully state that:

The great constitutional corrective in the hands of the people against usurpation of power, or corruption by their agents is the right of suffrage; and this when used with calmness and deliberation will prove strong enough.

-Andrew Jackson

NATURE OF THE PETITION 1. This is a original action for CERTIORARI and

PROHIBITION under Rule 65 of the Rules of Court with an application for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order (TRO) against the respondent Commission on Elections (COMELEC) and for the exercise of judicial review to assail the constitutionality of the deactivation of registration of voters without biometrics and enjoin the implementation of provisions of the Republic Act No. 10367 or “An Act Providing for Mandatory Biometrics Voter Registration.”

2. This petition seeks the nullification of COMELEC

Resolution No. 9721, dated June 26, 2013, Resolution No. 9863, dated April 1, 2014, and Resolution No. 10013, all related to deactivation of voter registration records in the May 9, 2016 National and Local Elections, as directed by the assailed Republic Act No. 10367.

3. The prayer for the exercise of judicial review to assail the

constitutionality and enjoin the implementation of Republic Act No. 10367 and the declaration of respondent COMELEC’s Resolution No. 9721, Resolution No. 9863, and Resolution No. 10013 as null and void are anchored on two (2) crucial grounds:

4. First, Republic Act No. 10367 and its implementing

regulations are unconstitutional as these impose an unconstitutional, additional substantive requirement imposed on the exercise of suffrage, thus violating Section 1, Article V of the 1987 Constitution.

Section 1, Article V of the 1987 Constitution states – Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months


immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Emphasis supplied.) 5. In contravention of the above-stated constitutional

provision, Republic Act No. 10367 and its implementing regulations imposed an additional substantive requirement for all voters, both old and new registrants, to submit for mandatory biometrics validation or risk being deactivated or removed precinct book of voters, thus effectively barring them from the exercise of their right to vote.

6. Further egregious is the fact that voters with active records

according to Republic Act No. 8189, the antecedent Voters Registration Law of 1996, comprise bulk of those who will be deactivated. The deactivation of registered voters qualified under Republic Act No. 8189 is incompatible with the tenet that laws with penal sanctions should apply prospectively and not retrospectively.

7. Secondly, the biometrics validation gravely violates due

process as it an unreasonable deprivation of the constitutional right to vote for millions of Filipinos who have failed to register their biometric information despite existing and active registration – in effect a voter’s re-registration – for various reasons whether personal or institutional.

8. Applying the strict scrutiny test for questioning State

actions that involve fundamental rights, there should be compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In the case at bar, respondent fails to justify the curtailment, nay, arrogation of the fundamental right of suffrage.

9. The implementation of Republic Act No. 10367 and its

corresponding implementing regulations cause the disenfranchisement of more than three (3) million registered voters, according to official data from respondent COMELEC. This constitutes almost six (6) percent of the estimated 52.2 million registered voters for the upcoming 2016 national and local elections.

10. Under the circumstances obtaining in this case, herein

Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law which will promptly and immediately relieve herein Petitioners from the injurious effects of the unconstitutional acts of the respondent in the issuance and implementation of the assailed Resolutions.

11. Petitioners are likewise praying for the issuance of a writ of

preliminary injunction and/or temporary restraining order due to the seriousness and extreme urgency of the matters involved, as well as


the grave and irreparable injuries that are sustained and will continue to be sustained by Petitioners due to the assailed acts of respondent.

12. This Petition involves the constitutionality of law and

questions of law, well within the jurisdiction of the Honorable Court. Article VIII, Section 5 of the 1987 Philippine Constitution is instructive:

Section 5. The Supreme Court shall have the following powers: (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. c) All cases in which the jurisdiction of any lower court is in issue. d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. e) All cases in which only an error or question of law is involved. 13. In the instant Petition, the serious and grave constitutional

questions involved in this case and the repercussions of the unconstitutional acts of the respondent on the separation of powers between the executive and legislative branches of government and on the statute which provides for a system of continuing registration of voters to prevent the disenfranchisement of millions of voters constitute exceptional and compelling circumstances to justify resort to this Honorable Court’s jurisdiction in the first instance.

14. Furthermore, at the core of the issues raised in the instant

Petition is a most important constitutional right – the right of suffrage.


TIMELINESS OF THE PETITION

15. Republic Act No. 10367 or “An Act Providing for Mandatory Biometrics Voter Registration,” was signed as law by President Benigno S. Aquino on February 3, 2013.

16. Respondent COMELEC issued three resolutions

implementing R.A. 10367, all stating that the registration records of voters without biometrics data who failed to submit for validation on or before the last day of filing of applications for registration for the purpose of the May 9, 2016 National and Local Elections shall be deactivated in the last ERB hearing to be conducted prior to said election, and that deactivated voters shall not be allowed to vote.

17. Petitioners attach hereto as Annex “A” the certified true

copy of Resolution No. 9721 dated June 26, 2013; as Annex “B” the certified true copy of Resolution No. 9863 dated April 1, 2014; and as Annex “C” the certified true copy of Resolution No. 10013 dated November 3, 2015.

18. On October 14, 2015, petitioner organizations formally

appealed for respondent COMELEC to extend the period for voters registration and biometrics capture, through an URGENT REQUEST to the Commission on Elections En Banc. Respondent has yet to respond or comment as of even time.

19. Thus, on October 29, 2015, Petitioner Ridon, together with

several other students and youth, filed a petition for prohibition and mandamus before this Honorable Court, docketed as G.R. No. 220918, questioning the COMELEC’s termination of voters registration on October 31, 2015.

20. Based on the COMELEC Resolutions, active voters that fail

to submit to the biometrics validation procedure shall be deactivated and will be expunged from the roll of voters starting November 16, 2015.

21. Thus, this Petition to enjoin the deactivation of voters,

pursuant to Resolution Nos. 9721, 9863, and 10013 is timely, having been filed within the sixty (60) day period mandated by Rule 65 of the Rules of Court.

THE PARTIES

22. Petitioner KABATAAN PARTY-LIST, as represented by its party-list representative in the House of Representatives, JAMES MARK TERRY L. RIDON, and its national president, MARJOHARA


S. TUCAY, is a youth sector party-list currently serving in the House of Representatives. Both are of legal age and Filipino, and also suing in their personal capacities. The office address of Kabataan Party-list is at North Wing Rm. 616, House of Representatives, Batasan Hills, Quezon City. For this purpose, the copy of the Board Resolution authorizing Ridon and Tucay to file this complaint for and in behalf of KABATAAN PARTY-LIST is hereto attached as ANNEX “D.”

23. Petitioner SARAH JANE I. ELAGO, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP), an alliance organization of tertiary student councils in the Philippines, is 24 years old and Filipino. Her office address is at 1139-A, P. Guevarra St., Brgy. Central Market, Sta. Cruz, Manila. She is a registered voter.

24. Petitioner VENCER MARI E. CRISOSTOMO,

CHAIRPERSON OF THE ANAKBAYAN, a national youth mass organization, is of legal age and Filipino. His residential address is at 56 Caimito, Mapayapa Village 1, Quezon City. He is a registered voter.

25. Petitioner MARC LINO J. ABILA, NATIONAL

PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP), a national formation of campus student publications, is 23 years old and Filipino. His office address is at 1139-A, P. Guevarra St., Brgy. Central Market, Sta. Cruz, Manila. He is a registered voter.

26. Petitioner EINSTEIN Z. RECEDES, DEPUTY

SECRETARY-GENERAL OF ANAKBAYAN, a national youth mass organization, is of legal age and Filipino. His residential address is at 25 Mozart St., Ideal Subdivision, Capitol District, Quezon City.

27. Petitioner CHARISSE BERNADINE I. BAÑEZ,

CHAIRPERSON OF THE LEAGUE OF FILIPINO STUDENTS, a national student mass organization, is of legal age and Filipino. Her residential address is at 444 M.F. Jhocson St., Sampaloc, Manila. She is a registered voter.

28. Petitioner ARLENE CLARRISE Y. JULVE, 26 years old, is

a member of AGHAM Advocates of Science and Technology for the People. She is a Filipino and is registered voter since October 2009 and has actively participated in past national elections. Her residential address is at Block 24 Lot 7 Phase 4 Soldiers Hills 4, Molino 6, Bacoor City, Cavite.

29. Petitioner SINING MARIA ROSA L. MARFORI, 37 years

old, is a Filipino and a registered voter who has participated in the


past two general elections. Her residential address is at 56 Caimito Street, Mapayapa Village 1, Quezon City.

30. All notices, orders, resolutions, judgment and other court processes pertinent to ALL PETITIONERS may be served through counsel at 3F Maaralin cor. Matatag Sts., Central District, Quezon City 1109.

31. Respondent COMMISSION ON ELECTIONS is the

administrative body which has issued and implemented Resolution Nos. 9721, 9863, and 10013. Respondent’s office address is Palacio Del Gobernador Building, Intramuros, Manila where it may be served notices, orders, resolutions, judgment and other court processes.

JURISDICTIONAL AVERMENTS

A. Parties have legal standing

32. Petitioner Kabataan Party-List, the first and only youth party-list group in Philippine Congress today, is suing for and in behalf of its constituency. It is a large network of energized and pro-active young people who are leaders in various organizations, and formations, with a membership of over 90,000 youth across the country.

33. The issuance and implementation of Resolution Nos.

9721, 9863, and 10013 are ultra vires acts on the part of respondent for instituting additional substantive qualifications for voters in violation of the 1987 Philippine Constitution as such acts constitute a clear usurpation of the legislative power of Congress.

34. Verily, the unconstitutional acts of the respondent infringe

upon the prerogatives of herein Petitioner, through its representative Ridon, as legislator.1

35. Hence, Petitioner Ridon has locus standi as a legislator. 36. Moreover, the issues raised hereunder are of

transcendental importance which must be settled early given the far-reaching implications of the unconstitutional acts of respondent on the separation of powers between the executive and legislative branches of government and on the citizens’ fundamental right of suffrage.

1 Gonzales v. Macaraig Jr., 191 SCRA 452 (2000) and Sandoval v. PAGCOR, G.R. No. 138982, November 29, 2000


37. Petitioners Tucay, Elago, Crisostomo, Abila, Recedes, and Bañez, are suing in their capacities as concerned citizens under the same grounds as petitioner Ridon. This is a suit for and in behalf of millions of unregistered, deactivated and delisted voters, particularly those who are members of their respective organizations.

38. Petitioners Julve and Marfori are directly aggrieved, real

parties in interest who will suffer injury traceable to the act challenged herein. This Petition is a motion to redress that injury. Petitioner Julve is considered an active voter within the purview of R.A. 8189. In fact, in the 2013 senatorial elections, she served as a Poll Clerk at Saint Alphonsus Liguori Integrated School Brgy. Molino 2, Bacoor City, Cavite. However, when she checked her registration status recently, she found out that the Commission on Elections has deactivated her registration due to failure to submit to the mandatory biometrics procedure.

39. Petitioner Marfori likewise is an active voter, who was

informed by the Commission on Elections via registered mail that her voting records were also deactivated due to failure to submit to the mandatory biometrics procedure. She received two letters: initial notice to present herself before the COMELEC for biometrics capture in July 2015, and final notice to validate her registration in October 2015. She attempted several times to validate her registration, but was deterred by the long lines that took up too much time from her work. A photograph of the notices, as well as the covering address slip, from respondent COMELEC are attached as Annexes “E” and “E-1”, and “F” and “F-1”. The originals are with petitioner Marfori, in case the COMELEC reopens registration and biometric capture.

40. All of the petitioners have locus standi as concerned

citizens seeking to enforce a public constitutional right. B. There are legal and factual grounds to directly invoke the jurisdiction of this Court.

41. There are legal and factual grounds for the petitioner to directly invoke the jurisdiction of this Honorable Court.

42. This Petition is covered by the exception on principle of

hierarchy courts, and there is legal and factual basis justifying direct recourse to this Honorable Court through this Petition for Certiorari and Prohibition. In Ernesto Dy vs. Hon. Gina M. Bibat- Palamos, etc., et al.2:

2 G.R. No. 196200, September 11, 2013


“Under the principle of hierarchy of courts, direct recourse to this Court is improper because the Supreme Court is a court of last resort and must remain to be so in order for it to satisfactorily perform its constitutional functions, thereby allowing it to devote its time and attention to matters within its exclusive jurisdiction and preventing the overcrowding of its docket. Nonetheless, the invocation of this Court’s original jurisdiction to issue writs of certiorari has been allowed in certain instances on the ground of special and important reasons clearly stated in the petition, such as,(1) when dictated by the public welfare and the advancement of public policy; (2) when demanded by the broader interest of justice; (3) when the challenged orders were patent nullities; or (4) when analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of the case.” 43. Petitioners submit that this case is covered by the first,

second and third exceptions enumerated in the above-cited case. The Petition raises issues affecting a constitution right. It involves the interest of the public, especially so of the millions who will be deprived of their right to vote. This interest is being violated by the issuance of the assailed resolutions which are patent nullities in view of the failure of the public respondents to observe procedural and. C. Exhaustion of Administrative Remedies is not applicable in this case.

44. In Philip L. Go, et al. vs. Distinction Properties Development and Construction, Inc.3, this Honorable Court enumerated the instances where exhaustion of administrative remedies may be dispensed with allowing direct resort to judicial remedy. Thus, this Honorable Court held:

“The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. It has been held, however, that the doctrine of exhaustion of administrative remedies and the doctrine of primary jurisdiction are not ironclad rules. In the case of Republic of the Philippines v. Lacap, the Court enumerated the numerous exceptions to these rules, namely: (a) where there is estoppel on the part of the

3 G.R. No. 194024, April 25, 2012


party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) where the application of the doctrine may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) where the issue of non-exhaustion of administrative remedies has been rendered moot; (j) where there is no other plain, speedy and adequate remedy; (k) where strong public interest is involved; and (l) in quo warranto proceedings.” (Emphasis supplied) 45. This case is covered by the multiple exceptions to the

principle of exhaustion of administrative remedies. As previously stated, the assailed Resolutions are patent nullities, the implementation of which is detrimental to public interest. Moreover, there is urgency to this Petition considering that the deactivation of voters began on November 16, 2015, and whatever available administrative remedy will not be sufficient and speedy to give ample remedies to the petitioners.

46. Besides, there is no available and clear procedure

designed to afford an adequate and timely opportunity to question the propriety of the deactivation. These are sufficient justifications for the petitioner to resort to judicial remedy without exhausting administrative remedies.

47. The same grounds also compelled the petitioners to file

this Petition without seeking a reconsideration of the assailed resolutions. Thus, the filing of this Petition for Certiorari without filing a Motion for Reconsideration is likewise justified under the circumstances.4

48. The petitioners validly availed of the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court considering that the respondent usurped an authority the exercise of which requires the exercise of discretion and is considered to be quasi-judicial in nature. As such, it is correctible through certiorari proceedings under Rule 65 of the Rules of Court.

4 Please see: Nemia Castro vs. Rosalyn Guevarra, et al., G.R. No. 192737, April 25, 2012


STATEMENT OF FACTS AND OF THE CASE

49. On February 15, 2013, President Aquino signed into law R.A. 10367, known as the Biometrics Law, a consolidation of Senate Bill No. 1030 and House Bill No. 3469 and passed by the Senate and the House of Representatives on December 12, 2012 and December 11, 2012, respectively.

50. Section 3 of R.A. 10367 provides that all registered voters

whose biometrics data – which include photograph, fingerprint, and signature details from the voter – have not yet been captured should submit to the validation or biometrics capturing procedure.

51. Section 7 of the same law provides that “voters who fail

to submit for validation on or before the last day of filing of application for registration for purposes of the May 2016 elections shall be deactivated pursuant to this Act.” RA 10367 defines deactivation as “the removal of the registration record of the registered voter from the corresponding precinct book of voters for failure to comply with the validation process.”

52. Section 8 of RA 10367 further provides for a system of

reactivation, to wit, “Reactivation. – Those deactivated under the preceding section may apply for reactivation after the May 2016 elections following the procedure provided in Section 28 of Republic Act No. 8189.” 53. On June 26, 2013, respondent COMELEC released

Resolution No. 9721, which serve as the implementing rules and regulations of R.A. 10367. Under this resolution, COMELEC provided the procedure for validation, deactivation, and reactivation of voter records.

54. The resolution formally instituted the “no biometrics data,

no boto (voting)” policy in this wise: “Sec. 8. Deactivation. - The registration records of voters without biometrics data who failed to submit for validation on or before the last day of filing of applications for registration for the purpose of the May 9, 2016 National and Local Elections shall be deactivated in the last ERB hearing to be conducted prior to said elections. Deactivated voters shall not be allowed to vote. Deactivation under this section shall comply with the requirements on posting, ERB hearing and service of


individual notices to the deactivated voters.” (Emphasis supplied.) 55. Ominously, the same resolution noted that as of the last

day of registration and validation for the May 13, 2013 Elections on October 31, 2012, the total number of registered voters without biometrics data is nine million eighteen thousand two hundred fifty-six (9,018,256). The said number of active registered voters, if unable to undergo the validation procedure stipulated under RA 10367 will be subject to deactivation and are in danger of losing their right to vote in the 2016 national and local elections.

56. On April 1, 2014, respondent COMELEC released

Resolution No. 9863 which amended certain portions of Resolution No. 9853. Among other things, COMELEC added under Resolution No. 9863 a new ground for the deactivation of voters – the failure to submit for validation pursuant to RA 10367.

57. In Resolution No. 9863, COMELEC instructed Election

Registration Boards (ERBs) in the country to deactivate the voter registration records not only of those disqualified by law due to criminal sentences and failure to participate in two successive preceding regular elections, but also those who will fail to submit to biometrics voter registration.

58. Under Resolution No. 9863, active voters who fail to

submit for validation will be deactivated and expunged from the voter registration records, and will not be allowed to participate in the 2016 national and local elections. The said move effectively disqualifies active voters from exercising their right of suffrage due to the imposition of a new substantive requirement.

59. On November 3, 2015, COMELEC issued Resolution No.

10013 which promulgated the “procedures in the deactivation of registration records of voters who do not have biometrics data in the Voter’s Registration System’ after the October 31, 2015 deadline of registration and validation. Among other things, COMELEC clarified in this resolution that only voters without biometrics data will be deactivated, explaining that the registration records of voters “with incomplete biometrics data and those corrupted data in the database shall not be deactivated and be allowed to vote in the May 9, 2016 national and local elections.

60. This clarification springs from reports published by the

media back in June 2015 that some two million voter biometrics data


stored in the central office of COMELEC were found to be corrupted5. The clarification on the status of voters with incomplete biometrics, meanwhile, sought to address the fact that close to half a million registered voters have incomplete biometrics information.

61. The revelation that some two million voter biometrics data

have been corrupted has raised concerns on the infringement and/or threat to privacy posed by the mandatory collection of biometrics data.

62. In consonance with these issuances related to the

implementation of RA 10367, respondent COMELEC conducted the #NoBioNoBoto (No Biometrics, No Vote) campaign, which supposedly aims to spread awareness to everyone who will be affected by the new policy.

63. Despite the #NoBioNoBoto campaign, however, official

data provided by respondent COMELEC through an official communication dated October 22, 2015 to petitioner Ridon6 showed that only three million five hundred ninety-nine thousand nine hundred six (3,599,906) registered voters have undergone the mandatory biometrics validation procedure, as of September 30, 2015.

64. In the same communication to petitioner Ridon,

COMELEC revealed that a total of three million fifty-nine thousand six hundred one (3,059,601) registered voters remain without biometrics data as of September 30, 2015. According to COMELEC, this figure is equivalent to 5.86 percent of the total fifty-two million two hundred thirty-nine thousand four hundred eighty-eight (52,239,488) registered voters for the 2016 national and local elections. A certified true copy of said document along with the attached tables is integrally attached to this petition as Annex “G.”

65. It is thus apparent that over three (3) million registered

voters stand to illegally lose their right of suffrage in the May 9, 2016 national and local elections without the benefit of due process due to the implementation of an additional requirement that is patently unconstitutional.

66. Hence, this Petition.

5 Aquino, Leslie Ann. “Close to 2-M biometrics data files corrupted.” Manila Bulletin, June 28, 2015. Retrieved from http://www.mb.com.ph/close-to-2-m-biometrics-data-files-corrupted/ Last accessed November 22, 2015. 6 Letter of Atty. Teopisto E. Elnas, Jr. to Kabataan Partylist Rep. Terry Ridon dated October 22, 2015, providing latest available data of registered voters with and without biometrics.

http://www.mb.com.ph/close-to-2-m-biometrics-data-files-corrupted/

http://www.mb.com.ph/close-to-2-m-biometrics-data-files-corrupted/


GROUNDS IN SUPPORT OF THE PETITION

I.

BIOMETRICS VALIDATION AND DEACTIVATION UNDER REPUBLIC ACT NO. 10367 AND ITS IMPLEMENTING

REGULATIONS ARE AN UNCONSTITUTIONAL SUBSTANTIAL REQUIREMENT IMPOSED ON THE EXERCISE OF SUFFRAGE

II.

BIOMETRICS VALIDATION GRAVELY VIOLATES CONSTITUTIONAL DUE PROCESS, APPLYING THE STRICT SCRUTINY TEST, AS IT IS NOT POISED AS A COMPELLING

REASON FOR STATE REGULATION AND IS AN UNREASONABLE DEPRIVATION OF THE RIGHT TO SUFFRAGE

ARGUMENTS

I BIOMETRICS VALIDATION AND DEACTIVATION UNDER REPUBLIC ACT NO. 10367 AND ITS IMPLEMENTING REGULATIONS ARE AN UNCONSTITUTIONAL SUBSTANTIAL REQUIREMENT IMPOSED ON THE EXERCISE OF SUFFRAGE

67. Section 1, Article V of the 1987 Constitution states –

Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Emphasis supplied.)

68. The above-mentioned constitutional provision constitutes

a general grant of right to citizens on the exercise of the right of suffrage, with clear prohibitions on the imposition of substantive requirements such as literacy, property, among others as a condition precedent for the exercise of suffrage.


69. The right to suffrage – a right heavily guarded and guaranteed by the Constitution – lies at the heart of our democracy. Except for requirements already enshrined in the Constitution, no other substantive requirement should be imposed to hinder qualified voters from the exercise of such sacred right. Imposing new limits to the right to vote is tantamount to piercing through the very fabric of our nationhood.

70. In the concurring and dissenting opinion of Chief Justice Reynato C. Puno in Macalintal v. COMELEC7, he discussed the liberalization of the right of suffrage and discussed the fundamental qualifications in the exercise of the right to suffrage, stating thus –

x x x The 1987 Constitution further liberalized the right of suffrage. For the first time, it required Congress to provide a system for absentee voting by qualified Filipinos abroad and to design a procedure for the disabled and the illiterates to vote without assistance from other persons. Be that as it may, four qualifications existing since the 1935 Constitution were retained: (1) Filipino citizenship; (2) age; (3) one year residence in the Philippines; and (4) six months residence in the place where the voter proposes to vote. The wisdom of these four qualifications has not been questioned at any given time in the history of our suffrage. It is easy to see the reason. Suffrage is a political right appertaining to citizenship. Each individual qualified to vote is a particle of popular sovereignty, hence, the right of suffrage cannot be extended to non-citizens. As an attribute of citizenship, suffrage is reserved exclusively to Filipinos whose allegiance to the country is undivided. It is also conceded that the right of suffrage can be exercised only by persons of a certain age. Nobody could doubt the reason for preventing minors from taking part in the political exercise. Voting is an act of choice and involves prescience. It requires not only a familiarity of political realities but also the maturity to make reasoned choices out of these realities. But citizenship and age requirements are not enough. For the vote to be more meaningful as an expression of sovereignty, the voter must possess more than a passing

7 Chief Justice Puno, Reynato. Concurring and Dissenting Opinion, Macalintal v. COMELEC. G.R. No. 157013. July 2003.


acquaintance with the problems and prospects of the country. Thus, residence is imposed as a qualification to exclude a stranger and a newcomer, unacquainted with the conditions and needs of the community and not identified with the latter. The residence requirement is also necessary for administrative purposes such as the preparation of accurate list of voters. xxx

71. In fact, this constitutional right has been a right given

utmost significance such that in a line of cases, the exercise of the right of suffrage is indispensable to the existence of a republican government.

72. In Macolor v. Amores, it was stated that the right of

suffrage is predicated upon the theory that the people who bear the burden of government should share in the privilege of choosing the officials of that government.8

73. In Pungutan v. Abubakar, Justice Laurel was further

quoted on the importance of the right of suffrage to republicanism, stating thus –

xxx 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. What was so eloquently expressed by Justice Laurel comes to mind:

"As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily

8 Macolor v. Amores. G.R. No. L-6806. November 5, 1953.


points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority."

xxx

74. It is thus respectfully submitted that the current

controversy on the constitutionality of validation and deactivation under R.A. No. 10367 and its implementing regulations must be viewed with the overwhelming consideration that the constitutional exercise of the right of suffrage must be protected instead of restricted. Biometrics validation rises to the level of additional, substantial qualification where there is penalty of deactivation

75. Section 1 of R.A. No. 10367 states that it is the policy of the State to establish a clean, complete, permanent and updated list of voters through the adoption of biometric technology.

76. While this statutory state policy is indeed a laudable

objective, it must however be stated that it should proceed without running afoul with the constitutional prohibition on the imposition of substantial requirements in the exercise of suffrage.

77. The necessary question therefore is this: Does biometrics

validation and deactivation rise to the level of a substantive qualification, akin to property and literacy, to merit a ruling of unconstitutionality?

78. It is our most respectful position that biometrics validation

and deactivation under R.A. 10367 and its implementing regulation rises to the level of an unconstitutional substantive qualification on the constitutional right of suffrage.

79. As early as the 1973 Constitution, the imposition of

substantive requirements such as property and literacy had been constitutionally prohibited.

80. The reason for this is to reflect the democratic and

republican nature of the elections, in which the non-ability to read or write and the non-possession or non-ownership of property shall not bar any citizen from the exercise of the right of suffrage.

81. This meant that the uneducated and the poor have as

much of a right to vote as the educated and the rich.


82. The statutory requirement of biometric validation under

R.A. No. 10367 and its implementing regulation is no different from the unconstitutional requirement of literacy and property, because mere non-validation already absolutely curtails the exercise of the right of suffrage through deactivation.

83. It is our submission that the framers of the Constitution did not envision that a mere technology solution such as biometrics validation should curtail the right of suffrage.

84. Biometrics validation is a mere tool for the positive

identification of voters and does not purport itself as the substitute for other proof of the fundamental requirements for the exercise of the right of suffrage.

85. Voters should still, without issue, be able to show their

credentials to the election officers in the precinct even without biometrics validation, whether through their Voter’s ID Card, or other accompanying documents as proof of the fundamental requirements for the exercise of the right.

86. If the concern of the COMELEC in implementing this

technology solution is to remove dead, redundant, and other similar types of voters from its master list, there are many other ways to do so without imposing this unconstitutional substantive requirement.

87. In fact, the COMELEC could have proceeded with

biometrics validation without this constitutional question if there was no penalty of deactivation.

88. By imposing the penalty of deactivation in the event of

failure to validate, it has risen to the level of an unconstitutional substantive requirement in the exercise of the right of suffrage. Biometrics deactivation is not the disqualification by law contemplated by the 1987 Constitution

89. Section 1, Article V of the 1987 Constitution states –

Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property,


or other substantive requirement shall be imposed on the exercise of suffrage. (Emphasis supplied.)

90. Some might be of the view that biometrics deactivation

due to non-validation under R.A. No. 10367 constitutes the disqualification by law contemplated under the 1987 Constitution.

91. This view is incorrect, because disqualification by law

arises only in the event of a criminal conviction in which the offense committed has among its penalties either the perpetual or temporary special disqualification for the exercise of the right of suffrage.

92. The disqualification contemplated in the Constitution

necessitates the completion of full criminal proceedings with conviction before such disqualification arises.

93. Furthermore, biometrics validation and deactivation

cannot be the disqualification by law contemplated in the 1987 Constitution because it is a disqualification that does not even comply with constitutional due process. Under COMELEC Resolution Nos. 9721, 9863, and 10013, which are implementing regulations of RA 10367, there is no such process or proceeding outlined. In fact, COMELEC Resolution No. 9863 insipidly and illegally added biometrics deactivation as ground for disqualification of a registered voter.

94. Unlike criminal disqualification of the right of suffrage

which undergoes trial and conviction before any disqualification is imposed, biometrics validation and deactivation proceeds without notice and hearing to voters.

95. Surely, the framers did not contemplate a disqualification

by law of the right of suffrage which would violate other constitutional rights.

96. Biometrics, at the very least, is a type of registration that

has been imposed for voter registrants February 2013 onwards. 97. In fine, these are the most compelling constitutional

reasons for the declaration of unconstitutionality of biometrics validation and deactivation under R.A. No. 10367 and its implementing regulations.

98. The overarching consideration in resolving this question

must be the constitutional grant of right to the citizens to exercise their right of suffrage, not the technology solutions intended by statute and its regulations.


II BIOMETRICS VALIDATION GRAVELY VIOLATES CONSTITUTIONAL DUE PROCESS, APPLYING THE STRICT SCRUTINY TEST, AS IT IS NOT POISED WITH COMPELLING REASON FOR STATE REGULATION AND IS AN UNREASONABLE DEPRIVATION OF THE RIGHT TO SUFFRAGE

99. All plausible infringements on the fundamental right to vote are to be appreciated using the standard of strict scrutiny, under the due process guaranty against arbitrary governmental encroachment against the life, liberty and property of individuals.

100. In the case of White Light Corporation v. City of Manila9,

the Supreme Court delved into the standards for judicial review of statutes or ordinances.

“In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access, and interstate travel.” 101. The standard requires that there is a legislative

classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. COMELEC’s biometric validation system creates artificial classifications of voters

102. In the case at bar, petitioners contend that the imposition of new guidelines as to registration creates classes of voters, among them: first-time voters registered directly through biometrics between

9 G.R. No. 122846, January 20, 2009


May 2014 and October 2015; prior voters who have complete biometric information encoded and updated between May 2014 and October 2015; voters from the prior two groups but with incomplete biometric information; those who are considered active voters prior to November 16, 2015 but have no biometric data; those who are definitely unregistered.

103. Using this taxonomy, only the first time registrants and

“re-registrants” would be allowed to vote. Notwithstanding COMELEC pronouncements that those with incomplete information would still be allowed to vote, the current regime when strictly applied only entitles those with complete biometric information processed between May 2014, when the COMELEC began registration for the 2016 elections, and October 31, 2015, the prescribed deadline.

104. Ergo, those falling outside that class are to be deactivated

and not allowed to vote. This is made very clear in COMELEC’s tagline, “#No Bio, No Boto”, and emphasized in Resolution No. 9721:

“Sec. 8. Deactivation. - The registration records of voters without biometrics data who failed to submit for validation on or before the last day of filing of applications for registration for the purpose of the May 9, 2016 National and Local Elections shall be deactivated in the last ERB hearing to be conducted prior to said elections. Deactivated voters shall not be allowed to vote. Deactivation under this section shall comply with the requirements on posting, ERB hearing and service of individual notices to the deactivated voters.” 105. Where the policy of the state is to obtain a “clean,

complete, permanent and updated list of voters”10, it cannot be shown that biometric validation, especially for those voters who fall outside the “privileged” class, the obedient group, is State regulation that is narrowly tailored and fit towards the purpose.

106. Biometric validation discriminates against groups of

citizens who may have faulty or incomplete biometric information, those who have already registered but are incapable of trooping to the COMELEC offices or malls, those who patiently waited but were not accommodated, and those who were not adequately informed and guided about the new policy.

107. There is already an existing system of registration that

strives towards the same objectives. Respondent COMELEC cannot

10 Section 1, Declaration of Policy, RA 10367


insist that its new system, i.e. biometric validation, blanket supersedes and overruns the previous one, though it may be manual.

108. Applying the strict scrutiny test, the burden is thence on

the government to prove that the artificial classification created is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.

109. What constitutes compelling interest? The Court in

Serrano v. Gallant11 opined in this wise: “[It] is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history. It is akin to the paramount interest of the state for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards, or in maintaining access to information on matters of public concern.”

110. Petitioners submit that the means forwarded by the

biometrics law, and the COMELEC resolutions that penalize non-compliance, are simply not closely fit nor hewn to the State interest of accurate voters details to forward clean and honest elections. Deactivation by November 16, 2015 involves the appurtenant issue of premature termination of registration

111. COMELEC Resolution No. 9863 sets the timeframe for

deactivation, as such: “B. 2. The Election Registration Board (Boards) shall: (a) Deactivate the VRRs based on the following grounds: x x x 7. Those who failed to submit for validation despite notice on or before October 31, 2015. Deactivation for cases falling under this ground shall be made during the November 16, 2015 Board hearing. x x x” 112. Fixing the schedule on such date necessarily references

the precursor case petitioners filed on October 29, 2015. The deadline of November 16, 2015 for deactivation is premature, being well ahead of the schedule for continuing registration prescribed by R.A. 8189.

11 G.R. No. 167614, March 24, 2009


113. Section 8 of The Voter’s Registration Act of 1996 is clear and categorical about the system of continuing registration of voters, thus:

“Section 8. System of Continuing Registration of Voters. – The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.” (Emphasis supplied)

114. The foregoing provision is unequivocal and definite that “the filing of application of registration of voters shall be conducted daily but no registration shall be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.”

115. The start of the 120-day prohibitive period is on January

9, 2015 and until May 9, 2015. Thus, the last day for the filing of application of registration – alongside biometrics capture – should be January 8, 2015 instead of October 31, 2015 laid down in the assailed COMELEC resolutions, about seventy (70) days less than that prescribed by the statute.

116. Respondent COMELEC has issued the assailed

resolutions based on its power to issue rules and regulations in the implementation of election laws. Petitioners do not deny that respondent COMELEC has the power to issue rules and regulations for the filing of the application of registration of voters.

117. However, it is noteworthy to emphasize at this moment

the well-settled doctrines as regards the power to promulgate implementing rules and regulations and the nature and character of such implementing rules and regulations, thus:

“It must be stressed that the power of administrative officials to promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. The implementing rules and regulations of a law cannot extend the law or expand its coverage, as the power to amend or repeal a statute is vested in the legislature. xxx. All that is required is that xxx the regulation does not contradict but conforms with the standards prescribed by law.” [The Public Schools District Supervisors Association v. Hon.


Edilberto C. De Jesus, G.R. No. 157286, June 16, 2006] (Emphasis supplied) “The implementing rules cannot add to or detract from the provisions of the law it is designed to implement.” [The Honorable Secretary of Finance v. The Honorable Ricardo M. Ilarde, G.R. No. 121782, May 9, 2005] (Emphasis supplied) 118. Thus, it cannot be gainsaid that by providing a period

different than that prescribed under Section 8 of The Voter’s Registration Act of 1996, respondent COMELEC has actually amended the said statute. The assailed Resolution has detracted from said Section 8 and has amended The Voter’s Registration Act of 1996. And this is manifestly an unconstitutional exercise of legislative power; it is beyond the province of administrative agencies, thus a serious and grave violation of the 1987 Philippine Constitution. Voters to be deactivated are not afforded due process

119. COMELEC attempts to remedy its position by providing opportunities for voters to protest their deactivation or delistment.

120. Resolution No. 10013 provides: “A. PRE-ELECTION REGISTRATION BOARD (ERB) HEARING The Election Officers shall: 1. Within three (3) days after the October 31, 2015

deadline, generate and print four (4) sets of lists of voters without biometrics data in the Voter's Registration System (VRS);

2. Registration records of voters with incomplete biometrics data and those corrupted data (biometrics) in the database shall not be deactivated and be allowed to vote in the May 9, 2016 Synchronized National, Local and ARMM Regional Elections;

3. Post the lists of voters without biometrics data in the bulletin boards of the City/Municipal hall , Office of the Election Officer and in the barangay hall a long with the notice of ERB hearing;


4. Send individual notices to the affected voters included in the generated list of voters without biometrics data;

5. Any opposition /objection to the deactivation of records shall be filed not later than November 9, 2015 in accordance with the period prescribed in Section 4. Resolution No. 9853;

6. Submit to the ERB a copy of the list of voters without biometrics data for deactivation;

B. DURING ELECTION REGISTRATION BOARD (ERB) HEARING The ERBs shall, based on the list of voters without biometrics data, order the deactivation of registration records on the ground of "failure to validate"; 1. Indicate in the Minutes of the proceeding the number

of registration records being deactivated; and

2. The conduct of deactivation proceedings shall be summary in nature. No dilatory tactics or scheme that will delay the proceedings shall be countenanced by the Board and the resolution/decision of the objection/opposition shall be based on the evidence presented.

C. POST ELECTION REGISTRATION BOARD (ERB) HEARING The Election Officers shall: 1. Execute the ERB Order by tagging the registration

records of voters without biometrics data and subsequently deactivate the same in the VRS;

2. Remove the deactivated Voters' Registration Records (VRRs) from the corresponding Book of Voters and place the same in the inactive file/folder, properly marked "Deactivated VRR" pursuant to Republic Act No. 10367;

3. Include in the generation and submission of Quarterly Progress Reports, the total number of voters deactivated by reason of failure to validate; and


4. Send individual notices to the deactivated voters within five (5) days from the last day of ERB hearing.”

121. Noticeable among the provisions are the short periods of

time between hearing and notice, and the summary nature of the proceedings. Questionable at present is the actual conduct of the deactivation procedure for the three million who stand to be disenfranchised of their right to vote.

122. But even granting that procedural due process has been

observed, and the issue were to be confined solely to such, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed.

123. Thus, substantive due process as earlier discussed would

complete the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.12

“The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application.”13

Poor experience with biometrics should serve as warning against exacting adherence to the system

124. Authorities have warned that the country will not be able achieve the stated objective of “establish[ing] a clean, complete, permanent and updated list of voters through the adoption of biometric technology.” COMELEC Chairman Andres Bautista himself has recently announced that the poll body will still be using the old manual method of validating voters’ identities for purposes of the

12 Please see White Light. 13 White Light, supra note 8.


2016 national and local elections. In other words, COMELEC itself defeats the sole purpose of biometrics registration by opting for a manual verification process instead of biometric voter authentication.14

125. To deepen the discussion on voter registration and

mandatory biometrics capturing, petitioners feel the need to discuss the experience of other nations.

126. Employing biometrics can only help solve imminent fraud

(e.g. double registration) and not all other problems faced by election management bodies (EMBs) in conducting elections (e.g. vote buying, source code manipulation, etc). This is why EMBs are tasked to study carefully what appropriate voter registration system to employ so that it addresses the needs of the country. Several countries in Africa and Latin America employ biometrics in their voter registration systems and have produced varied results. These countries include Bolivia, Cameroon, Colombia, Cote d’Ivoire, Ghana, Guatemala, Venezuela, and Uganda.

127. In Guatemala, for example, decided in 2007 to use

biometrics in their voter registration. The International Crisis Group (ICG), in a report, said that the registration process has been fairly disastrous:

“The exercise was overambitious from the start. Planners misjudged the time required to retrieve and sort old data from municipalities and then collect and verify new data from around fourteen million Guatemalans. The bad design was compounded by corruption. Deputies in Congress and RENAP’s managers, who have since been replaced, reportedly awarded contracts inappropriately, or at least without sufficient transparency. Ill-qualified cronies were appointed to key positions. The combination of poor design, nepotism and incompetence led, unsurprisingly, to a deficient registration. The exercise has cost far more than originally projected but remains incomplete. Politicians, especially from opposition parties, and some in civil society have accused RENAP of inflating registration numbers so as to benefit the ruling party.”15

14 http://www.manilatimes.net/comelec-jeopardizing-clean-elections-in-2016/228256/ 15 Ibid.

http://www.manilatimes.net/comelec-jeopardizing-clean-elections-in-2016/228256/

http://www.manilatimes.net/comelec-jeopardizing-clean-elections-in-2016/228256/


128. The Guardian reports that Britain’s move to individual voter registration “has made a simple process more complex and potentially less democratic.” Reporter Paul Wheeler said:

“Individual electoral registration voting may be a good idea but the way it has been introduced in the past four years has been a disaster. Voters whose existing details cannot be confirmed by data matching with a single Department for Work and Pensions database of national insurance numbers have to provide additional forms of identification.”16 The most recent attempt in 2013 at this data matching found more than 7 million voters currently on the register were not matched and would need to provide additional evidence of residence. The Cabinet Office insists the switch to individual voter registration will not affect the general election since anyone on the old household register in December 2013 will be entitled to vote in 2015 - but anyone who has moved house in the interim does need to re-register. Wheeler warns that up to 7 million registered voters will be removed from the register if they fail to provide the additional information by the end of 2015. This is comparable to what’s happening in the country as registered voters are burdened to provide their biometric data or risk getting disenfranchised.17 129. Voter registration employing biometrics has delayed the

electoral process in many states. 130. The European Union (EU) observer report from 2010

discusses the launch of a biometric registration phase in Cote d’Ivoire, conducted through a French legal company. “Technically complex and crystallizing the profound lack of confidence between the political parties, the voter registration phase was prolonged from six weeks initially planned and lasted ten (10) months.”18

131. The government of Uganda launched a new photographic

registry in 2001. When put into action in 2006, at least two (2) million people were not able to obtain their ID cards. In 2010 the commission was better prepared but the president demanded that they begin again with a new biometric system using fingerprint technology, requiring everyone to register anew. Four million people registered, 16 http://www.theguardian.com/public-leaders-network/2015/feb/05/missing-voters-individual-electoral-registration-disaster 17 Ibid. 18 Ibid.


but their ID cards were never produced. 46 According to the Commonwealth Observer Group, although the law provides for the issuance of voter cards, the commission decided not to use them because they did not have the resources or time to issue them; therefore, the only identification requirement at the polling station was to have one’s name on the registration list.47 The country is still trying to implement the new biometric system, but as of 2011 only 400 cards were issued.

132. Kenya, a country that requires the use of a national ID

card for registration and voting, has also confronted capacity issues. A 2012 National Democratic Institute (NDI) report noted, “In July 2011, news reports indicated that approximately four million youth were in danger of disenfranchisement due to non-issuance of national identity cards. This was attributed to inadequate material resources to facilitate registration and to issue identity cards, which had resulted in the Ministry’s suspension of issuing new national identity cards between January 2011 and July 2011. While the process has since resumed, it is believed that millions of youth remain under threat of disenfranchisement.”19

133. There are some groups that think that biometric capture

for voter registration is an additional burden on the part of the voter because this creates an “artificial barrier” that disenfranchises voters should they fail to comply. Election expert Tova Wang noted that: “[L]aunching a new biometric system, because it can be so complex and vulnerable to so many different variables, such as environmental and geographical challenges, lack of training and skills, mechanical breakdowns, delays, and usually necessitates to re-registration of every citizen in the country within a finite period of time, can cause disenfranchisement.”20

APPLICATION FOR PRELIMINARY MANDATORY INJUNCTION AND/OR TEMPORARY RESTRAINING

ORDER

134. Petitioners are likewise praying for the issuance of a Preliminary Mandatory Injunction and/or Temporary Restraining Order due to the seriousness and extreme urgency of the matters involved, as well as the grave and irreparable injuries that are sustained and will continue to be sustained by Petitioners due to the unconstitutionality of COMELEC Resolution Nos. 9721, 9863, and 10013, alongside the patent violation of Section 8 of The Voter’s

19 Ibid. 20 Tova Wang (n.d.). Voter Identification Requirements and Public International Law: An Examination of Africa and Latin America.


Registration Act of 1996 with voter deactivation commencing on November 16, 2015, stating thus:

a. That Petitioners replead by reference the foregoing

allegations as well as the allegations hereunder, as part of this application;

b. That grave and irreparable injury results to Petitioner Ridon

as a legislator, who has sustained and will to continue to sustain direct injury by virtue of the usurpation of the legislative power of Congress by respondent in the issuance and implementation of the assailed Resolutions;

c. That grave and irreparable injury results to Petitioners as

concerned citizens, and to the over three million voters who will be deprived of the right to suffrage for the May 9, 2016 elections due to failure to comply with biometric validation;

d. That Petitioners and millions of registrants and voters are

entitled to the relief demanded in the instant Petition, and part of such relief consists in requiring respondent to desist from deactivation of millions of voters registration without biometric information, and parallelly, to extend the deadline of application of registration and biometric capture of voters during the pendency of the present Petition, otherwise the instant Petition may be rendered ineffectual;

e. That the deactivation of the voters registration and non-

extension of deadline of application of registration of voters during the pendency of the present Petition would work injustice to Petitioners and millions of youth registrants and voters who cannot be accommodated by respondent as of October 31, 2015 for purposes of the May 9, 2016 elections, as it would cause the disenfranchisement of millions of voters;

f. That respondent is very adamant in its efforts to delist and

deactivate voters registration without biometric information and refusal to extend the registration of voters and capture of biometric information beyond the October 31, 2015 deadline, in violation of the rights of Petitioners and of millions of first-time youth registrants and voters who cannot be accommodated by respondent as of October 31, 2015 for purposes of the May 9, 2016 elections. Thus, the necessity for a preliminary mandatory injunction in order not to render the judgment ineffectual; and;

g. There is no other plain, speedy, and adequate remedy to

address these pervasive injuries to the Petitioners and to the millions of youth registrants and voters who cannot be accommodated by


respondent as of October 31, 2015 for purposes of the May 9, 2016 elections, before this Petition could be heard by the Honorable Court.

135. Hence, based on the foregoing allegations, Petitioners

are entitled to the issuance of a Preliminary Mandatory Injunction and/or a Temporary Restraining Order to require respondent to desist from deactivating registered voters without biometric information and to extend the system of continuing registration and capture of biometric information of voters until January 8, 2016.

PRAYER WHEREFORE, premises considered, Petitioners most

respectfully pray of the Honorable Court the following: 1. That this Petition be given due course; 2. That a Temporary Restraining Order or a Preliminary

Mandatory Injunction be issued to require the respondent Commission on Elections to desist from deactivating registered voters without biometric information and to extend the system of continuing registration and capture of biometric information of voters until January 8, 2016;

3. That after notice and hearing, a final order is issued: (a) Declaring the respondent Commission on Elections

COMELEC Resolution Nos. 9721, 9863, and 10013 as unconstitutional and void;

(b) Declaring RA 10367 as unconstitutional, as applied to a

classification of citizens; (c) Commanding the respondent Commission on Elections to

desist from deactivating registered voters without biometric information, to reinstate voters who are compliant with the requisites of R.A. 8189 but have already been delisted, and to extend the system of continuing registration and capture of biometric information of voters until January 8, 2016.

Petitioners likewise pray for such other reliefs as are just and

equitable under the circumstances. RESPECTFULLY SUBMITTED. Quezon City for the City of

Manila, November 25, 2015.


MARIA KRISTINA C. CONTI Counsel for the Petitioners Roll of Attorneys No. 63574

IBP Lifetime Member No. 012641 - Batangas PTR No. 0756376C-1/28/2015 - Quezon City

Admitted to the bar 2014, MCLE not yet required 3/F Erythrina Building

1 Maaralin cor. Matatag St. Central District, Quezon City

Telephone number: (+632)9206660 Email address: [email protected]

COPY FURNISHED COMMISSION ON ELECTIONS Palacio Del Gobernador Building Intramuros, Manila OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo St., Legaspi Village Makati City EXPLANATION ON SERVICE BY REGISTERED MAIL Pursuant to Section 11, Rule 13 of the Rules of Court, the office of the undersigned served copies of this Opposition with Motion on the other parties through registered mail due to time, distance and manpower constraints.

MARIA KRISTINA C. CONTI

mailto:[email protected]

PETITION FOR CERTIORARI AND PROHIBITION (WITH …...for the Issuance of a Writ of Preliminary...

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