REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA CITY
EN BANC
LORD ALLAN JAY Q. VELASCO,
Petitioner,
- versus -
G.R. No. 211140
For: Petition for Mandamus Under
Rule 65 With a Prayer for Temporary
Restraining Order and Injunction
HON. SPEAKER FELICIANO R.
BELMONTE, JR., SECRETARY
GENERAL EMILIA B. BARUA-YAP
AND REGINA ONGSIAKO REYES,
Respondents.
x ------------------------------------------- x
MOTION FOR RECONSIDERATION
Respondent REGINA ONGSIAKO REYES (“Rep. Reyes”), by counsel,
respectfully moves for a reconsideration and setting aside of the Decision of the
Honorable Court dated 12 January 2016 (copy of which was received on 19 January
2016) and further states:
1. FIRST. In justifying the Decision, the Honorable Court said:
The important point of reference should be the date the
COMELEC finally decided to cancel the Certificate of Candidacy
(COC) of Reyes which was on May 14, 2013. The most crucial
time is when Reyes's COC was cancelled due to her non-eligibility to
run as Representative of the Lone District of the Province of
Marinduque -for without a valid COC, Reyes could not be
treated as a candidate in the election and much less as a duly
proclaimed winner. That particular decision of the COMELEC was
promulgated even before Reyes's proclamation, and which was
affirmed by this Court's final and executory Resolutions dated June 25,
2013 and October 22, 2013.
This Court will not give premium to the illegal actions of a
subordinate entity of the COMELEC, the PBOC who, despite
knowledge of the May 14, 2013 resolution of the COMELEC En Banc
cancelling Reyes' s COC, still proclaimed her as the winning candidate
on May 18, 2013. Note must also be made that as early as May 16,
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2013, a couple of days before she was proclaimed, Reyes had already
received the said decision cancelling her COC. These points clearly
show that the much argued proclamation was made in clear defiance of
the said COMELEC En Banc Resolution.
2. Notably, the Honorable Court has not cited even one constitutional or
statutory provision to support its conclusion of “illegal actions of a subordinate
entity” and “clear defiance of the said COMELEC En Banc Resolution.”
3. Respondent respectfully requests the Honorable Court to take judicial
notice of the fact that a delay in the proclamation of the candidate who garnered
highest number of votes, in the absence of an Order of suspension of such
proclamation issued by the Comelec, is an election offense. If non-proclamation or
delay in the proclamation of the Respondent as the winning candidate is considered
an election offense, how can doing the exact opposite then be considered as “illegal
actions”?
4. Section 231 of the Omnibus Election Code mandates the continuous and
expeditious canvasing of the results of the elections and the immediate proclamation
of the winners thereof upon preparation of the certificate of canvass. The provision
states:
Sec. 231. Canvass by the board. - The board of canvassers
shall meet not later than six o'clock in the afternoon of election day at
the place designated by the Commission to receive the election returns
and to immediately canvass those that may have already been received.
It shall meet continuously from day to day until the canvass is
completed, and may adjourn but only for the purpose of awaiting the
other election returns from other polling places within its jurisdiction.
Each time the board adjourns, it shall make a total of all the votes
canvassed so far for each candidate for each office, furnishing the
Commission in Manila by the fastest means of communication a
certified copy thereof, and making available the data contained therein
to the mass media and other interested parties. As soon as the other
election returns are delivered, the board shall immediately resume
canvassing until all the returns have been canvassed.
The respective board of canvassers shall prepare a certificate
of canvass duly signed and affixed with the imprint of the thumb of
the right hand of each member, supported by a statement of the votes
received by each candidate in each polling place and, on the basis
thereof, shall proclaim as elected the candidates who
obtained the highest number of votes cast in the province, city,
municipality or barangay. Failure to comply with this requirement
shall constitute an election offense.
Subject to reasonable exceptions, the board of canvassers
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must complete their canvass within thirty-six hours in
municipalities, forty-eight hours in cities and seventy-two hours in
provinces. Violation hereof shall be an election offense
punishable under Section 264 hereof.
With respect to the election for President and Vice-President,
the provincial and city boards of canvassers shall prepare in
quintuplicate a certificate of canvass supported by a statement of votes
received by each candidate in each polling place and transmit the first
copy thereof to the Speaker of the Batasang Pambansa. The second
copy shall be transmitted to the Commission, the third copy shall be
kept by the provincial election supervisor or city election registrar; the
fourth and the fifth copies to each of the two accredited political
parties. (Emphasis supplied)
5. In fact, even if not all the of the returns have been received (or set aside) by
the Board of Canvassers, the board is still required to proclaim the candidate who
got the highest number of votes if the returns not yet received (or set aside) will not
materially affect the result of the elections. Thus, Sections
Sec. 233. When the election returns are delayed, lost
or destroyed. - In case its copy of the election returns is missing, the
board of canvassers shall, by messenger or otherwise, obtain such
missing election returns from the board of election inspectors
concerned, or if said returns have been lost or destroyed, the board of
canvassers, upon prior authority of the Commission, may use any of
the authentic copies of said election returns or a certified copy of said
election returns issued by the Commission, and forthwith direct its
representative to investigate the case and immediately report the
matter to the Commission.
The board of canvassers, notwithstanding the fact that
not all the election returns have been received by it, may
terminate the canvass and proclaim the candidates elected on
the basis of the available election returns if the missing election returns
will not affect the results of the election.
6. When the canvass of the returns that were set aside will affect the result of
the election, it is only then that “no proclamation shall be made except upon orders
of the Commission after due notice and hearing.” This is the only instance where the
proclamation made in violation of this section is declared “null and void.” Section 238
states:
Sec. 238. Canvass of remaining or unquestioned
returns to continue. - In cases under Sections 233, 234, 235 and
236 hereof, the board of canvassers shall continue the canvass of the
remaining or unquestioned election returns. If, after the canvass of all
the said returns, it should be determined that the returns which have
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been set aside will affect the result of the election, no proclamation
shall be made except upon orders of the Commission after due notice
and hearing. Any proclamation made in violation hereof shall be null
and void.
7. From the foregoing, it is clear that the general rule is for the board of
canvassers to proclaim the winner upon completion of the canvass where the results
of the election will no longer be affected. It must be emphasized that failure to do so
is defined as an election offense for which the person responsible shall be liable for
imprisonment of not less than one (1) year but not more than six (6) years” pursuant
to Section 264 of the Omnibus Election Code.
8. Aside from the foregoing mandatory provisions of the Omnibus Election
Code, the Comelec itself issued Resolution No. 9648 which mandated the
proclamation of the winning candidate in the absence of an Order for the suspension
of the proclamation issued by the Commission. Section 28 of COMELEC Resolution
No. 9648 clearly requires this, to wit:
n) PROCLAMATION OF THE WINNING CANDIDATES
A candidate who obtained the highest number of
votes shall be proclaimed by the Board, except for the
following:
1. In case the certificate of candidacy of the candidate
who obtains the highest number of votes has been cancelled
or denied due course by a final and executory Decision or
Resolution, the votes cast for such candidate shall be considered
stray, hence, the Board shall proceed to proclaim the candidate who
obtains the second highest number of votes, provided, the latter’s
certificate of candidacy has not likewise been cancelled by a final and
executory Decision or Resolution;
2. In case a candidate has been declared a nuisance
candidate by final and executory Decision or Resolution, the
votes cast for the nuisance candidate shall be added to the candidate
who shares the same surname as the nuisance candidate and thereafter,
the candidate who garnered the highest number of votes shall be
proclaimed;
In case of two or more candidates having the same surnames as the
nuisance candidate, the votes cast for the nuisance candidate shall be
considered as stray votes and shall not be credited to any candidate;
In case the nuisance candidate does not have the same surname as any
candidate for the same position, the votes cast for the nuisance
candidate shall be considered as stray votes; and
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3. In case a candidate has been disqualified by a final
and executory Decision or Resolution and he obtains the highest
number of votes cast for a particular position, the Board shall not
proclaim the candidate and the rule of succession, if allowed by law
shall be observed. In case the position does not allow the rule of
succession under Republic Act No. 7160, the position shall be deemed
vacant.
In all cases, a Decision or Resolution is deemed final and executory if,
in case of a Division ruling, no motion for reconsideration is filed
within the reglementary period, or in cases of the ruling of the
Commission En Banc, no restraining order was issued by the Supreme
Court within five (5) days from receipt of the Decision or Resolution.
In cases where a Petition to Deny Due Course or cancel a
Certificate of Candidacy, Declare a Nuisance Candidate, or for
Disqualification remains pending with the Commission on the
day of the canvassing and no order of suspension of
proclamation is issued by the Commission En Banc or Division
where said Petition is pending, the Board shall proceed to
proclaim the winner.
In cases where the generated/printed COCP does not reflect the true
winner for a particular position by reason of the circumstances stated
above, the Board is authorized to effect the necessary correction on the
entry for said position, to reflect the true winner as determined in
accordance with the foregoing rules, provided all the members of the
Board countersign such entry. Such fact shall be entered in the
Minutes. (Emphasis supplied)
9. It is clear from the foregoing administrative regulation that in the absence
of a “final and executory Decision or Resolution”, proclamation should ensue as a
matter of course. This was the holding ruling of the Honorable Court in Jalosjos vs.
Comelec (G.R. No. 192474; 26 June 2012), to wit:
It is of course argued, as the COMELEC law department
insisted, that the proclamation of Jalosjos was an exception to the
above-stated rule. Since the COMELEC declared him ineligible to run
for that office, necessarily, his proclamation was void following the
ruling in Codilla, Sr. v. De Venecia. For Erasmo, the COMELEC still has
jurisdiction to issue its June 3, 2010 order based on Section 6 of
Republic Act 6646. Section 6 provides:
Section 6. Effects of Disqualification Case. 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. If for any reason a candidate is
not declared by final judgment before an election to be
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disqualified and he is voted for and receives the winning
number of votes in such election, the Court or
Commission shall continue with the trial and hearing of
the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence
of his guilt is strong.
Here, however, the fact is that on election day of 2010
the COMELEC En Banc had as yet to resolve Erasmos appeal
from the Second Divisions dismissal of the disqualification
case against Jalosjos. Thus, there then existed no final judgment
deleting Jalosjos name from the list of candidates for the congressional
seat he sought. The last standing official action in his case
before election day was the ruling of the COMELECs Second
Division that allowed his name to stay on that list. Meantime,
the COMELEC En Banc did not issue any order suspending his
proclamation pending its final resolution of his case. With the fact of
his proclamation and assumption of office, any issue regarding his
qualification for the same, like his alleged lack of the required
residence, was solely for the HRET to consider and decide. (Emphasis
supplied)
10. SECOND. This brings the discussion then as to when a decision or
resolution becomes final executory which is the second issue herein being questioned
in this Motion for Reconsideration. The Honorable Court concluded that the 14 May
2013 Resolution became final and executory immediately after its issuance “since no
restraining order was forthcoming” from the Supreme Court. The Honorable Court
said:
That Velasco now has a well-defined, clear and certain right to
warrant the grant of the present petition for mandamus is supported by
the following undisputed facts that should be taken into consideration:
First. At the time of Reyes's proclamation, her COC was
already cancelled by the COMELEC En Banc in its final finding in its
resolution dated May 14, 2013, the effectivity of which was not
enjoined by this Court, as Reyes did not avail of the prescribed remedy
which is to seek a restraining order within a period of five (5) days as
required by Section 13(b), Rule 18 of COMELEC Rules. Since no
restraining order was forthcoming, the PBOC should have refrained
from proclaiming Reyes.
10. Respondent respectfully submits that such ruling is contrary to the very
clear provisions of the applicable law and the Constitution.
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11. Under the 1987 Constitution, only the election contests involving elective
municipal and barangay officials are “final, executory, and not appealable.” Article IX
C, Section 2 (2) states:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
xxx
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction over
all contests involving elective municipal officials decided by trial courts
or general jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction.
Decision, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay offices shall
be final, executory, and not appealable. (Emphasis supplied)
12. Thus, the Constitution clearly provides that only in the exercise of its
appeallate jurisdiction involving municipal and barangay offices are the Comelec’s
decisions and resolutions considered final and executory.
13. On the other, Section 5 (e) of Republic Act No. 6646 mandates that the
decision or resolution of the Comelec becomes final and executory only after the
lapse of five (5) days. The provision reads:
Section 5. Procedure in Cases of Nuisance Candidates. xxx
(e) The decision, order, or ruling of the Commission shall, after five
(5) days from receipt of a copy thereof by the parties, be
final and executory unless stayed by the Supreme Court. (Emphasis
supplied)
14. Section 5 of R.A. No. 6646 or the procedure outlined therein is
applicable to cases of cancellation of certificate of candidacy pursuant to Section 7 of
R.A. No. 6646 which states:
Section 7. Petition to Deny Due Course To or Cancel a Certificate
of Candidacy. - The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy as
provided in Section 78 of Batas Pambansa Blg. 881.
15. From the foregoing provision of Section 5 of R.A. No. 6646, there can be
no doubt as to the meaning thereof that the “decision, order or ruling” of the
Comelec does not become immediately final and executory upon its issuance but
only after the lapse of five (5) days from receipt by the parties.
16. In the case of Respondent, the 14 May 2013 Resolution was received by
her only on 16 May 2013 and going by Section 5 (e) of R.A. No. 6646, it only
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became final and executory five days thereafter or on 21 May 2013. Thus, as of the
18 May 2013 proclamation of Respondent, there was no legal impediment for her
proclamation.
17. Contrasting the provision of Section 5 (e) of R.A. No. 6646 with the
above-quoted portion of the Decision of the Honorable Court, there can be no other
conclusion than that the pronouncement of the Honorable Court is clearly contrary
to the said provision of the law. For the Honorable Court to espouse a rule contrary
to the applicable provision of the law, notwithstanding some regulation as its basis, is
to enforce an “illegal action” or sanction an illegality for the benefit of the “son of a
Member of the Court.”
18. Thus, even granting for the sake of argument that the aforesaid ruling of
the Honorable Court is supported by the Section 13 (b), Rule 18 of the Comelec
Rules, it is still invalid for being contrary to the Constitution and the laws. Article 7
of the Civil Code is very clear on this matter, to wit:
Art. 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern,
Administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to the laws or the
Constitution. (Emphasis supplied)
19. But then, even a cursory examination of the applicable provision of the
Rules of Procedure of the Comelec does not support the interpretation of the
Honorable Court that the Comelec’s resolution is immediately final and executory
unless a restraining order is secured from the Supreme Court within five (5) days
from its receipt by Respondent. Section 13 or Rule 18 of the Comelec Rules of
Procedure states:
Sec. 13. Finality of Decisions or Resolutions. a. In ordinary actions, special proceedings, provisional remedies and
special reliefs a decision or resolution of the Commission en banc
shall become final and executory after thirty (30) days from its
promulgation
b. In Special Actions and Special Cases a decision or resolutions of the
Commission en banc shall become final and executory after
five (5) days from its promulgation unless restrained by the
Supreme Court.
c. Unless a motion for reconsideration is seasonably filed, a decision
or resolution of a Division shall become final and executory after
the lapse of five (5) days in Special actions and Special cases and
8
after fifteen (15) days in all other actions or proceedings, following
its promulgation. (Emphasis supplied)
19. Thus, like Section 5 (e) of R.A. No. 6646, the above-quoted provision of
the Comelec Rules is very clear in that the resolution becomes final and executory
only after the lapse of five (5) days from promulgation. Even counting the five (5)
days from the promulgation of the Resolution on 14 May 2013, the resolution was
still not final and executory when Respondent was proclaimed on 18 May 2013 since
the five (5) days was due to lapse on 19 May 2013.
20. THIRD. The Honorable Court likewise ruled as determinative the
following, to wit:
Second. This Court upheld the COMELEC decision
cancelling respondent Reyes's COC in its Resolutions of June 25,
2013 and October 22, 2013 and these Resolutions are already final
and executory.
21. With all due respect, the Honorable Court acts as though its
Resolutions of 25 June 2013 and 22 October 2013 were rendered in a
vacuum and nothing happened in the interim. The Honorable Court
conveniently forgot or dismissed the fact that Respondent was proclaimed
on 18 May 2013, took her oath of office on 7 June 2013 before the Speaker
of the House of Representatives and on 27 June 2013 before the President
of the Philippines, and assumed the duties of the office of Representative at
noon of 30 June 2013.
22. Thus, as early as 30 June 2013, Respondent fulfilled all the three
(3) requirements laid down by the Honorable Court in its 25 June 2013
Resolution. It must be noted that as of 30 June 2013, the 25 June 2013
Resolution of the Honorable Court was not yet final and executory.
23. Moreover, the 22 October 2013 Resolution of the Honorable
Court essentially arrogated unto itself the jurisdiction of the HR ET by
annulling the proclamation of Respondent on the novel doctrine of that she
was not “duly proclaimed” despite knowing very well its lack of jurisdiction
to do so. Considering the absence of jurisdictional competence on the part
of the Honorable Court in rendering its Resolution, the ruling is void and
can be questioned anytime as discussed in the following sections. It is
respectfully submitted that the Honorable Court should not rue the “re litigation” of these issues but should view this instead as a n opportunity for
it to correct a clearly unconstitutional, illegal and erroneous ruling whose
sole beneficiary is the “son of a Member of the Court.”
24. FOURTH. The Honorable Court wants to reverse the effects of
such undeniable facts by inventing the legal fiction that Respondent did not
have, allegedly, a valid proclamation, to wit:
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Fourth. When Reyes took her oath of office before
respondent Speaker Belmonte, Jr. in open session, Reyes had NO
valid COC NOR a valid proclamation.
Thus, to consider Reyes's proclamation and treating it as a
material fact in deciding this case will paradoxically alter the wellestablished legal milieu between her and Velasco.
25. Aside from the Honorable Court’s unconstitutional, illegal and
erroneous claim that the 14 May 2013 Resolution became immediately final
and executory which should have made the board of canvassers refrain from
proclaiming Respondent on 18 May 2013, the Honorable Court has not
cited any provision of the Constitution, the laws or Comelec Resolutio n
(aside from the wrongly interpreted Section 13 (b), Rule 18 of the Comelec
Rules) to support such novel doctrine of no valid proclamation.
26. On the contrary, Section 6 of R.A. No. 6646 require that in
order for the proclamation to be suspended, a motion therefor should be
applied for and granted by the Commission. The provision states:
Section 6. Effect of Disqualification Case. - 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. 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, the Court or Commission shall continue with
the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong.
(Emphasis supplied)
27. Without a doubt, the Comelec did not issue an Order for the
suspension of the proclamation of Respondent. Likewise, there was no
motion filed in SPA 13-053 (DC) for the suspension of the proclamation of
Respondent. Hence, there was no legal impediment for her proclamation.
28. To reiterate and in accordance with the Jalosjos ruling, at the
time of Respondent’s proclamation on 18 May 2013, there was no final and
executory judgment cancelling her certificate of candidacy. Hence, there
can be no question on the validity of Respondent’s proclamation.
29. In this connection, it would not be amiss to point out that under
Section 25 of Republic Act No. 8436, as amended, requires for the
proclamation to be conducted forthwith upon completion of the canvass, to
wit:
SECTION 25. Canvassing by Provincial, City, District
and Municipal Boards of Canvassers. - The city or municipal
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board of canvassers shall canvass the votes for the president, vicepresident, senators, and parties, organizations or coalitions
participating under the party-list system by consolidating the
electronically transmitted results or the results contained in the data
storage devices used in the printing of the election returns. Upon
completion of the canvass, it shall print the certificate of canvass of
votes for president, vice-president, senators and members of the
House of Representatives and elective provincial officials and
thereafter, proclaim the elected city or municipal officials, as the case
may be.
The city board of canvassers of cities comprising one or more
legislative districts shall canvass the votes for president, vice-president,
senators, members of the House Representatives and elective city
officials by consolidating the certificates of canvass electronically
transmitted or the results contained in the data storage devices used in
the printing of the election returns. Upon completion of the
canvass, the board shall produce the canvass of votes for
president, vice-president, and senators and thereafter, proclaim the
elected members of the House of Representatives and city
officials.
xxx
The district board of canvassers of each legislative district
comprising two municipalities in the Metro Manila area shall canvass
the votes for president, vice-president, senators and members of the
House of Representatives by consolidating the certificates of canvass
electronically transmitted from the city/municipal consolidating
centers or the results contained in the data storage devices submitted
by the municipal board of canvassers of the component municipalities.
Upon completion of the canvass, it shall produce a certificate
of canvass of votes for president, vice-president and senators and
thereafter, proclaim the elected members of the House of
Representatives in the legislative district.
The district/provincial board of canvassers shall canvass the
votes for president, vice-president, senators, members of the House of
Representatives and elective provincial officials by consolidating the
results electronically transmitted from the city/municipal
consolidating centers or the results contained in the data storage
devices submitted by the board of canvassers of the municipalities and
component cities. Upon completion of the canvass, it shall
produce the certificate of canvass votes for president, vicepresident and senators and thereafter, proclaim the elected
members of the House of Representatives and the provincial
officials.
xxx
30. Hence, the proclamation of the winning candidate is mandatory in
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character and may only be suspended by order of the Commission. In the absence of
such suspension order, the proclamation is legal and valid.
31. FIFTH. The Honorable Court likewise ignored the Constitution when it
ruled as follows:
Third. As a consequence of the above events, the COMELEC
in SPC No. 13-010 cancelled respondent Reyes's proclamation
and, in turn, proclaimed Velasco as the duly elected
Member of the House of Representatives in representation of the
Lone District of the Province of Marinduque. The said
proclamation has not been challenged or questioned
by Reyes in any proceeding.
32. The Honorable Court conveniently ignored the fact that at the time SPC
No. 13-010 annulled the proclamation of Respondent on 10 July 2013, the
Commission on Elections was already devoid of jurisdiction over the Respondent. At
that time, Respondent was already proclaimed, has taken her oath of office and
assumed her duties as Representative – thus, a full-fledged Member of the House of
Representatives even under the standards set in the 25 June 2013 Resolution of the
Honorable Court in Reyes vs. Comelec.
33. In this connection, the Honorable Court is respectfully reminded of the
relevant provisions of the Omnibus Election Code on protest and quo warranto
petitions.
34. Petitions for protest under the Omnibus Election Code is found in Section
250 thereof which requires that the petition should be filed within ten (10) days from
proclamation. The provision reads:
Sec. 250. Election contests for Batasang Pambansa,
regional, provincial and city offices. - A sworn petition
contesting the election of any Member of the Batasang Pambansa or
any regional, provincial or city official shall be filed with the
Commission by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten days
after the proclamation of the results of the election. (Emphasis
supplied)
35. The same rule is true with respect to the filing of the petition for quo
warranto, to wit:
Sec. 253. Petition for quo warranto. - Any voter
contesting the election of any Member of the Batasang Pambansa,
regional, provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition
for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
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Any voter contesting the election of any municipal or barangay
officer on the ground of ineligibility or of disloyalty to the Republic of
the Philippines shall file a sworn petition for quo warranto with the
regional trial court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation of the results of
the election. (Emphasis supplied)
36. It is the proclamation that is the reckoning date for the filing of the
petitions for protest and quo warranto. It is likewise the reckoning date when the
jurisdiction of the House of Representatives Electoral Tribunal kicks in and the
Comelec is kicked out.
37. Thus, as pointed out by Respondent in her Comment in a long line of
decisions, the Supreme Court said that proclamation delineates the jurisdiction of the
Comelec and the HRET. In the aforecited case of Jalosjos, the Court said:
While the Constitution vests in the COMELEC the power
to decide all questions affecting elections, such power is not without
limitation. It does not extend to contests relating to the election,
returns, and qualifications of members of the House of Representatives
and the Senate. The Constitution vests the resolution of these contests
solely upon the appropriate Electoral Tribunal of the Senate or the
House of Representatives.
The Court has already settled the question of when the
jurisdiction of the COMELEC ends and when that of the HRET
begins. The proclamation of a congressional candidate
following the election divests COMELEC of jurisdiction over
disputes relating to the election, returns, and qualifications
of the proclaimed Representative in favor of the HRET.
Here, when the COMELEC En Banc issued its order dated June
3, 2010, Jalosjos had already been proclaimed on May 13, 2010 as
winner in the election. Thus, the COMELEC acted without
jurisdiction when it still passed upon the issue of his qualification and
declared him ineligible for the office of Representative of the Second
District of Zamboanga Sibugay.
xxx
Consequently, the Court holds in G.R. 192474 that the
COMELEC En Banc exceeded its jurisdiction in declaring Jalosjos
ineligible for the position of representative for the Second District of
Zamboanga Sibugay, which he won in the elections, since it had ceased
to have jurisdiction over his case. Necessarily, Erasmos petitions (G.R.
192704 and G.R. 193566) questioning the validity of the registration
of Jalosjos as a voter and the COMELECs failure to annul his
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proclamation also fail. The Court cannot usurp the power vested by
the Constitution solely on the HRET. (Emphasis supplied)
38. Given that the Comelec was without jurisdiction when it issued its
Resolution dated 10 July 2013 annulling Respondent’s proclamation, the Resolution
was void and can be attacked collaterally or at any time following the ruling in Galicia
vs. Manliquez (G.R. No. 155785; 13 April 2007) where it was ruled as follows:
The settled rule is that a judgment rendered or final order
issued by the RTC without jurisdiction is null and void and may
be assailed any time either collaterally or in a direct action or by
resisting such judgment or final order in any action or
proceeding whenever it is invoked, unless barred
by laches. Indeed, jurisprudence upholds the soundness of an
independent action to declare as null and void a judgment rendered
without jurisdiction as in this case.
39. SIXTH. Given the foregoing discussion of the applicable constitutional and
statutory provisions, the conclusion of the Honorable Court that Respondent has
“absolutely no basis” to serve as Representative is clearly bereft of any constitutional,
legal and administrative basis. The Honorable Court said:
Fifth. In view of the foregoing, Reyes HAS ABSOLUTELY
NO LEGAL BASIS to serve as a Member of the House of
Representatives for the Lone District of the Province of
Marinduque, and therefore, she HAS NO LEGAL PERSONALITY
to be recognized as a party-respondent at a quo warranto proceeding
before the HRET.
And this is precisely the basis for the BRET' s December 14,
2015 Resolution acknowledging and ruling that it has no jurisdiction over
the twin petitions for quo warranto filed against Reyes. Its finding was
based on the existence of a final and executory ruling of this Court in
G.R. No. 207264 that Reyes is not a bona fide member of the
House of Representatives for lack of a valid proclamation. To reiterate
this Court's pronouncement in its Resolution, entitled Reyes v.
Commission on Elections45 —
The averred proclamation is the critical pointer to
the correctness of petitioner's submission. The
crucial question is whether or not petitioner [Reyes]
could be proclaimed on 18 May 2013. Differently
stated, was there basis for the proclamation of petitioner
on 18 May 2013?
Dates and events indicate that there was no
basis for the proclamation of petitioner on 18 May 2013.
Without the proclamation, the petitioner's oath of office
is likewise baseless, and without a precedent oath of
office, there can be no valid and effective assumption of
office.
14
"More importantly, we cannot disregard a fact
basic in this controversy — that before the
proclamation of petitioner on 18 May 2013, the
COMELEC En Banc had already finally disposed of the
issue of petitioner's [Reyes] lack of Filipino citizenship and
residency via its Resolution dated 14 May 2013. After 14
May 2013, there was, before the COMELEC, no longer
any pending case on petitioner's qualifications to run for
the position of Member of the House of
Representatives. x x x."
As the point has obviously been missed by the
petitioner [Reyes] who continues to argue on the basis of
her "due proclamation," the instant motion gives us the
opportunity to highlight the undeniable fact we here
repeat that the proclamation which petitioner
secured on 18 May 2013 was WITHOUT ANY
BASIS." (Emphasis supplied.)
Put in another way, contrary to the view that the
resort to the jurisdiction of the HRET is a plain, speedy and
adequate remedy, such recourse is not a legally available remedy to
any party, specially to Velasco, who should be the sitting Member of
the House of Representatives if it were not for the disregard by the
leadership of the latter of the binding decisions of a constitutional
body, the COMELEC, and the Supreme Court
40. While the HRET, led by Justice Velasco, points to the case of Reyes vs.
Comelec as its basis for its 14 December 2015 Resolution, the Honorable Court in
this case points to the HRET Resolution in support of its ruling in this case. In all
case, the rulings woefully failed to cite any Constitutional and legal basis therefor.
Thus, as shown in the foregoing discussion whereby all the points raised by the
Honorable Court were discussed vis-à-vis the relevant and applicable provisions of
the Constitution, the law and administrative regulations, all that the Honorable
Court can come up with is a reference to a clearly unconstitutional, illegal and
erroneous decision that favors the “son of a Member of the Court.”
41. While it can be argued that the Honorable Court certainly had jurisdiction
in affirming the Comelec Resolutions when it rendered its 25 June and 22 October
2013 Resolutions, the same cannot be said when it usurped the powers of the HRET
when it extended the effect of the Comelec resolution to justify and annul the
proclamation of Respondent. Such a void judgment for want of jurisdictional
competence can never be a source of a right.
42. SEVENTH. The Honorable Court was duped and became an unwitting
tool into believing that the 14 December 2015 Resolution of the HRET was validly
rendered just so that the “son of a Member of the Court” can be hurriedly allowed to
sit in Congress. This is what happens when the Court acts without the benefit of a
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comment from the other concerned parties and merely relies on their unnamed
sources.
43. For the information of the Honorable Court, the 14 December 2015
Resolution of the HRET was rendered with Ms. Luzviminda Ilagan as the swing vote
that gave herein petition the majority in the HRET. The Honorable Court is hereby
informed that as early as 15 October 2015, Ms. Ilagan ceased to be a Member of the
House of Representatives as she forfeited her seat when she filed her candidacy for
councilor in Davao City under the party of HUGPONG SA TAWONG LUNGSOD
(a copy of the COC and CONA is attached hereto as Annexes “A” & “B”).
44. Section 15 of R.A. 7941 is clear on such forfeiture of the congressional
seat in case of change in party affiliation, to wit:
Section 15. Change of Affiliation; Effect. Any elected party-list
representative who changes his political party or sectoral
affiliation during his term of office shall forfeit his seat: Provided,
That if he changes his political party or sectoral affiliation within six (6)
months before an election, he shall not be eligible for nomination as
party-list representative under his new party or organization.
(Emphasis supplied)
45. The Petitioner herein, and perhaps, his father as well, may not be
strangers to this issue as Petitioner’s mother who was once a party-list representative
has filed her certificate of candidacy for a local position. It is not far-fetched to
imagine that she may have done so under using a political party, not a sectoral party,
as a vehicle for her campaign. Thus, the Philippine Congress may possibly have at
least two (2) persons occupying party-list seats who no longer have a right thereto.
46. The foregoing discussion clear show that Petitioner, the LOSER in the
2013 congressional elections in Marinduque, has NO RIGHT whatsoever in the
office that he claims and is therefor not entitled to a writ of mandamus.
47. NINTH. Lastly, the Honorable Court takes the view that the Public
Respondent’s “disregard” of binding decisions of the Comelec and the Supreme
Court is the only thing keeping Petitioner from sitting as a Member of the House of
Representatives.
48. Respondent respectfully submits to the Honorable Court that all the
respondents in this case as well as all the Members of Congress took the oath to
support and defend the Constitution and to obey the laws. They not only have the
right or option to do so, they have the compelling obligation to do so. That being
said, the Honorable Court, with all due respect, does not have the monopoly over
the Constitution and the laws.
49. It is first and foremost the Congress that is saddled with the bounden duty
to interpret the Constitution in relation to the laws they are crafting. It is the
Congress who has the singular competence to dictate and ensure the intendment of
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every law that they pass. It is Congress’s ultimate responsibility to ensure that the
laws they pass are being enforced dutifully and are not being defeated by faulty and
erroneous interpretation.
50. Especially when it involves the jurisdictional competence of the House of
Representatives Electoral Tribunal. Especially when it involves the election of
Members of the House of Representatives. Contrary to the conclusions of the
Honorable Court considering the invalidity of the HRET Resolution dated 14
December 2015, there is still pending with the said Tribunal two petitions for quo
warranto whereby the HRET has unquestionably declared its jurisdiction.
51. Congress and the Public Respondents herein, by their intransigence, nay
reasonableness, in upholding and defending the Constitution and the laws should not
be faulted for their stubborn refusal to sit Jusitce Presbitero Velasco’s son as a
Representative. Congress should be thanked for giving the Honorable Court the
opportunity to correct its unconstitutional, illegal, null and void rulings beginning
with the case of Reyes vs. Comelec.
52. This is also an opportunity for the Honorable Court not merely to cite the
Codilla vs. De Venecia case but to altogether abandon it for being contrary to the
Constitution and as a usurpation of the powers of the HRET. The mere fact that
jurisdictional question was not raised before should not preclude the same from being
raised and considered in the present case.
53. TENTH. The remedy of Mandamus has for its purpose the performance
of an act mandated by law. The Honorable Court, with all due respect, has not cited
even a single provision of the law or the Constitution that compels Public
Respondent to perform their duty as directed by the Honorable Court. All that the
Honorable Court has done was cite its own resolution that favored the “son of a
Member of the Court.”
54. It is high time, it is respectfully submitted, for the Honorable Court to
clarify the distinction between a writ of mandamus and a writ of execution and so as
not to confuse the two as it has done in this case. In a writ of mandamus, the basis is
the clear provision of the law that confers an unmistakable right upon the petitioner
and a compelling duty on the respondent only. When it is not the law that is relied
upon for the basis of an alleged right claimed by the petition but a decision of the
courts, the proper remedy is an application for a writ of execution. That is a basic
rule that may have been lost in the justification whose obvious, manifest and blatant
effect is to sit in Congress the “son of a Member of the Court.”
55. Lastly, the Honorable Court’s Decision decreed that the decision is
immediately executory without citing “good reasons” as required under the Rules of
Court and the Internal Rules of the Supreme Court. Respondent respectfully submit
that this exceptional use of the powers of the Court should no longer be invoked and
granted especially when there are multiple parties or respondents as it essentially
deprives the person who is served last of due process of the law. A decision is not
binding and effective as against a party if he or she has not been served with a copy
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thereof notwithstanding that all the other respondents may have already acceded to
and executed the decision pursuant to the directive that it be “immediately
executory.”
56. In parting, a wrong cannot be corrected by another wrong. Especially
when the obvious, manifest, blatant and immediate effect is to sit in Congress the
“son of a Member of the Court.”
57. In view thereof, Respondent moves for the Honorable Court to
reconsider and set aside its Decision and deny the Petition for lack of factual and legal
basis.
RESPECTFULLY SUBMITTED.
Makati City for Manila City, 3 April 2014.
ROQUE & BUTUYAN LAW OFFICES
Counsel for Respondent Rep. Reyes
Antel Corporate Center
Unit 1904, 19th Floor
121 Valero Street, Salcedo Village
Makati City 1227
Email: mail@roquebutuyan.com
Tel. Nos. 887-4445; 887-3894
Fax No. 887-3893
By:
H. HARRY L. ROQUE, JR
Roll No. 36976
PTR No. 5334537/11 Jan 2016/Makati
IBP Lifetime No. 01749/PPLM
MCLE Exempt. No. IV-000513/15 Feb 2013
JOEL RUIZ BUTUYAN
Roll No. 36911
PTR No. 5334536 /11 Jan 2016 – Makati
IBP Lifetime No. 01742/Quezon City
MCLE Comp. No. IV-0011417/11 Jan 2013
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ROGER R. RAYEL
Roll No. 44106
PTR No. 2208483/7 Jan 2016/Quezon City
IBP Lifetime No. 02159/Quezon City
MCLE Comp. No. IV-017519/19 Apr 2013
EXPLANATION
The foregoing pleading was served by registered mail due to time, distance
and manpower constraints.
ROGER R. RAYEL
Copy furnished:
ATTY. MARCELINO MICHAEL I. ATANANTE IV
ATTY. HERMINIO F. VALERIO
Counsels for Respondent Joseph Socorro B. Tan
Unit 201 Cityland Condominium 8
98 Sen. Gil Puyat Avenue, Makati City
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street, Legaspi Village
Makati City
Regina Reyes 2 MR/
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