Migrante Opposition

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(3)

In the May 2004 elections, Oppositor participated therein and obtained 0.8644 percent of the votes cast under the party-lists system. In the May 2007 elections, Oppositor did not participate therein. On 09 March 2007, prior to the May 2007 elections, Oppositor formally informed the Honorable Commission in a letter dated 06 March 2007, attaching therewith the Oppositor’s Executive Board Resolution No. 02-06 dated 17 December 2006, that Oppositor shall consolidate and strengthen its ranks and membership and not participate in the May 2007 party-list elections. A copy of the said letter dated 06 March 2007 and the Oppositor’s Executive Board Resolution No. 02-06 dated 17 December 2006 are attached hereto as Annexes “B” and “B-1”.

(4)

Oppositor has the intention to participate in the May 2010 party-list elections.

(5)

On 18 September 2009, Oppositor filed an Urgent Petition for Relief with the Honorable Commission, docketed as EM 09-003, for purposes of the May 2010 party-list elections.

(6)

The said Petition arose from the Honorable Commission Resolution No. 7819 dated 12 February 2007 entitled “In Re Cancellation of Registration or Delisting of Sectoral Parties, Organizations or Coalitions under the Part-List System Pursuant to COMELEC Resolution No. 7718”, which delisted Democratic Alliance (DA) from the list of registered sectoral parties, organizations or coalitions under the party-list system on the reason of DA’s failure to obtain at least two (2) percent of the votes cast under the party-list system in an election (2001 elections) and failure to participate in the succeeding election (2004 elections). To this date, Oppositor has not received any notice from the Honorable Commission as to whether it has given due course to the said Petition. 2

(7)

On 13 October 2009, without any prior notice and hearing, the Honorable Commission En Banc promulgated Resolution No. 8679 entitled “In the Matter of the Failure of Party-List Organizations to comply with Section 6 (8) of Republic Act No. 7941” which delisted Oppositor, together with twenty-five (25) other partylists, from the list of registered national, regional or sectoral parties, organizations or coalitions under the party-list system on the reason of Oppositor’s failure to obtain at least two (2) percent of the votes cast under the party-list system in an election (2004 elections) and failure to participate in the succeeding election (2007 elections).

(8)

This Opposition is filed in accordance with said Resolution No. 8679 stating the following, thus: “Any national, regional sectoral party or organizations or coalitions adversely affected may personally or through authorized representative file a verified opposition on October 26, 2009 during office hours. The Clerk of the Commission shall assign a docket number which must be consecutive according to the order of receipt and must bear the year and prefixed as SPP (MP).” (Emphasis supplied)

(9)

This Opposition is filed on the following grounds, thus:

I. THE HONORABLE COMMISSION DID NOT NOTIFY OPPOSITOR, AND NO HEARING WAS EVER CONDUCTED, PRIOR TO THE ISSUANCE OF RESOLUTION NO. 8679 WHICH DELETED OPPOSITOR FROM THE LIST OF REGISTERED NATIONAL, REGIONAL OR SECTORAL PARTIES, ORGANIZATIONS OR COALITIONS UNDER THE PARTY-LIST SYSTEM, IN VIOLATION OF THE MANDATORY REQUIREMENT OF PRIOR NOTICE AND HEARING UNDER SECTION 6 OF REPUBLIC ACT NO. 7941 OR THE PARTY-LIST SYSTEM ACT. 3

II. THE REASON USED BY THE HONORABLE COMMISSION IN DELETING OPPOSITOR IS NOT AMONG THE GROUNDS ENUMERATED UNDER SECTION 6 OF REPUBLIC ACT NO. 7941 OR THE PARTY-LIST SYSTEM ACT FOR THE REMOVAL OR CANCELLATION OF THE REGISTRATION OF ANY NATIONAL, REGIONAL OR SECTORAL PARTY, ORGANIZATION OR COALITION UNDER THE PARTYLIST SYSTEM, AND SUCH REASON IS NOT WITHIN THE SCOPE OF SECTION 6 (8) OF THE PARTY-LIST SYSTEM ACT.

DISCUSSION I. THE HONORABLE COMMISSION DID NOT NOTIFY OPPOSITOR, AND NO HEARING WAS EVER CONDUCTED, PRIOR TO THE ISSUANCE OF RESOLUTION NO. 8679 WHICH DELETED OPPOSITOR FROM THE LIST OF REGISTERED NATIONAL, REGIONAL OR SECTORAL PARTIES, ORGANIZATIONS OR COALITIONS UNDER THE PARTY-LIST SYSTEM, IN VIOLATION OF THE MANDATORY REQUIREMENT OF PRIOR NOTICE AND HEARING UNDER SECTION 6 OF REPUBLIC ACT NO. 7941 OR THE PARTY-LIST SYSTEM ACT. The Honorable Commission did not notify Oppositor, and no hearing was ever conducted, prior to the issuance of Resolution No. 8679 which deleted Oppositor from the list of registered national, regional or sectoral parties, organizations or coalitions under the party-list system, in violation of the mandatory requirement of prior notice and hearing under Section 6 of Republic Act No. 7941 or the PartyList System Act. (10) Section 6 of the Party-List System Act is clear and categorical about the

requirements of notice and hearing prior to the removal or cancellation of the registration of any national, regional or sectoral party, organization or coalition, thus:

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“Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:” (Emphasis supplied) (11) The foregoing provision is unequivocal about such requirement of prior notice and

hearing, whether such removal or cancellation of the registration of a party-list is done motu proprio or upon verified complaint of any interested party. (12) However, despite such definite requirements under the Party-List System Act, the

Honorable Commission never bothered to notify Oppositor, and no hearing was ever conducted, prior to the issuance of Resolution No. 8679. In fact, Resolution No. 8679 is absent of any reference with respect to any compliance by the Honorable Commission with the mandatory requirement of prior notice and hearing. (13) Verily, the Honorable Commission has manifestly violated Section 6 of the Party-

List System Act in issuing Resolution No. 8679 without compliance with the requirement of prior notice and hearing mandated under said statute. (14) Thus, absent such compliance by the Honorable Commission with the requirement

of prior notice and hearing mandated under Section 6 of the Party-List System Act, and such non-compliance arbitrarily deprives Oppositor of its right to due process prescribed under said statute, Resolution No. 8679 is clearly illegal and a patent nullity.

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II. THE REASON USED BY THE HONORABLE COMMISSION IN DELETING OPPOSITOR IS NOT AMONG THE GROUNDS ENUMERATED UNDER SECTION 6 OF REPUBLIC ACT NO. 7941 OR THE PARTY-LIST SYSTEM ACT FOR THE REMOVAL OR CANCELLATION OF THE REGISTRATION OF ANY NATIONAL, REGIONAL OR SECTORAL PARTY, ORGANIZATION OR COALITION UNDER THE PARTYLIST SYSTEM, AND SUCH REASON IS NOT WITHIN THE SCOPE OF SECTION 6 (8) OF THE PARTY-LIST SYSTEM ACT. The reason used by the Honorable Commission in deleting Oppositor is not among the grounds enumerated under Section 6 of Republic Act No. 7941 or the Party-List System Act for the removal or cancellation of the registration of any national, regional or sectoral party, organization or coalition under the party-list system. (15) In Resolution No. 8679, the Honorable Commission has delisted Oppositor on the following reason, thus: “Participation/Percentage of Votes May 10, 2004 Elections

May 14, 2007 Elections

Reasons for Deletion

Did not participate

Failed to get two percent of the votes cast in 2004 and did not participate in the 2007 elections”

xxx 19. MIGRANTE 0.8644%

(Emphasis supplied) (16) With all due respect, the foregoing reason cited by the Honorable Commission in

Resolution No. 8679 in delisting Oppositor is not among the grounds enumerated under the Party-List System Act for the removal or cancellation of the registration of a party-list. The grounds for removal or cancellation of such registration are clearly and categorically stated under Section 6 of the Party-List System Act, thus: “Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any 6

interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: It is a religious sect or denomination, organization or association organized for religious purposes; It advocates violence or unlawful means to seek its goal; It is a foreign party or organization; It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; It violates or fails to comply with laws, rules or regulations relating to elections; It declares untruthful statements in its petition; It has ceased to exist for at least one (1) year; or It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.” (Emphasis supplied) (17) Clearly, “failure to get two (2) percent of the votes cast in one (1) election and

failure to participate in one (1) election” is nowhere among the grounds enumerated above. There is nothing in the above enumerated grounds which state that “failure to get two (2) percent of the votes cast in one (1) election and failure to participate in one (1) election” is a ground for the removal or cancellation of the registration of a party-list. (18) Thus, as the reason cited and used by the Honorable Commission against Oppositor

in deleting the latter from the list of registered national, regional or sectoral parties, organizations or coalitions is not a ground provided for by the Party-List System Act, Resolution No. 8679 is clearly illegal and a patent nullity.

The reason used by the Honorable Commission in delisting Oppositor is not within the scope of Section 6 (8) of the Party-List System Act. 7

(19) The second and third whereas clauses in Resolution No. 8679 have mentioned

Section 6 (8) of the Party-List System Act, thus: “WHEREAS, Section 6, item no. 8 of Republic Act No. 7941, otherwise known as the Party-List System Act, provides: Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: xxx (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. WHEREAS, Comelec Resolution No. 2847 promulgated 25 June 1996 entitled: “In Re: Rules and Regulations Governing the Election of the Party-List Representatives through the Party-List System”, which states: Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: xxx (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.” (Emphasis supplied) That is all there is to it. The said clauses simply mentioned said Section 6 (8), and nothing more. (20) Then the fifth and last whereas clause went on simply stating that pursuant to the

powers granted to the Honorable Commission, it was ordering the deletion of twenty-six (26) party-lists, including Oppositor, from the list of registered national, regional or sectoral parties, organizations or coalitions, and stating the respective reasons for such deletion across the respective names of the deleted party-lists, thus: 8

“NOW, THEREFORE, pursuant to the powers granted by the Constitution, the Omnibus Election Code, Republic Act No. 7941 and other election, the Commission hereby orders: To DELETE the following party-lists from the list of registered national, regional or sectoral parties, organizations or coalitions: 1.

Participation/Percentage of Votes May 10, 2004 Elections

May 14, 2007 Elections

Reasons for Deletion

xxx 19. MIGRANTE 0.8644%

Did not participate

Failed to get two percent of the votes cast in 2004 and did not participate in the 2007 elections”

(Emphasis supplied) That is all there is to it. Though Section 6 (8) of the Party-List System Act has been mentioned twice in Resolution No. 8679, the Honorable Commission, however, has used a reason against Oppositor, quoted above, different from said Section 6 (8), as already discussed above. (21) Moreover, Resolution No. 8679 does not state in clear and categorical terms

whether the actual reason used by the Honorable Commission in delisting Oppositor is within the scope of Section 6 (8) of the Party-List System Act mentioned twice in said Resolution. (22) The fact is, Resolution 8679, in its fourth whereas clause, has impliedly stated that

the reason “failure to obtain two (2) percent of the votes cast in one (1) election and failure to participate in one (1) election” is not within the scope of Section 6 (8) of the Party-List System Act, thus: “WHEREAS, a party registered for the two (2) preceding elections shall be considered to have failed to obtain at least two per centum (2%) of the votes cast under the party-list system if the latest “Party-List Canvass Reports” for said elections show that the percentage obtained by said party did not reach two per centum (2%) of the votes cast therein. However, this shall not apply if a party, although receiving less 9

than two per centum (2%) of the votes cast under the party-list system in the May 2007 National Elections, was allocated a seat during said election pursuant to the Decision of the Supreme Court in the case of Barangay Association for National Advancement and Transparency (BANAT) vs. Commission on Elections, G.R. No. 179271, and Bayan Muna, A Teacher, and Abobo vs. Commission on Elections, G.R. No. 179295, as we as, the Resolutions of the Commission implementing the said Decision.” (Emphasis supplied) (23) The said fourth whereas clause is clear that a party-list shall be considered to have

failed to obtain at least two (2) percent of the votes cast under the party-list system if the latest “Party-List Canvass Reports” for the two (2) preceding elections show that the percentage obtained by said party-list did not reach two (2) percent of the votes cast therein. (24) Thus, only party-lists which participated in said two (2) preceding elections but

failed to obtain at least two (2) percent of the votes cast under the party-list system are considered to have failed to obtain such required percentage of votes. This must be so because the said fourth whereas clause has referred to “Party-List Canvass Reports” showing the failure of party-lists to obtain two (2) percent of the votes cast under the party-list system. Only party-lists which participated in an election are necessarily included in “Party-List Canvass Reports”, and party-lists which did not participate in an election are not included therein precisely because said party-lists did not participate in an election. (25) Hence, a party-list is considered to have failed to obtain at least two (2) percent of

the votes cast under the party-list system in an election only if said party-list has participated in said election and has failed to obtain at least two (2) percent of the votes cast under the party-list system. Yes, Oppositor participated in the May 2004 elections and failed to obtain at least two (2) percent of the votes cast under the party-list system. That is only one instance. But in the May 2007 elections, Oppositor did not participate therein, thus not included in the “Party-List Canvass Report” for the May 10

2007 elections. Hence, Oppositor is not considered to have failed to obtain at least two (2) percent of the votes under the party-list system in the May 2007 elections because Oppositor did not participate therein and is not included in the “Party-List Canvass Report” for said election. Thus, Oppositor failed to obtain at least two (2) percent of the votes cast under the party-list system only once, in the May 2004 elections, and not twice. (26) Section 6 (8) of the Party-List System Act is clear and categorical that the ground

for the removal or cancellation of the registration of a party-list is “failure to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections”. Again, Oppositor has failed to obtain at least two (2) percent of the votes cast under the party-list system only once, not twice. (27) Thus, there is no reason to delete Oppositor from the list of registered national,

regional or sectoral parties, organizations or coalitions under the party-list system. And the actual reason used by the Honorable Commission in delisting Oppositor in not within the scope of Section 6 (8) of the Party-List System Act. (28) To reiterate, the above-quoted provision under Section 6 (8) of the Party-List

System Act provides two (2) instances by which the registration of a party, organization or coalition under the party-list system shall be removed or cancelled, thus: First, if a party, organization or coalition fails to participate in the last two (2) preceding elections for the constituency in which it has registered; or Second, if a party, organization or coalition fails to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections for the constituency in which it has registered.

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(29) The last two (2) preceding elections prior to the May 2010 party-list elections were

the May 2004 and May 2007 party-list elections. Oppositor participated in the May 2004 party-list elections but did not participate only in the May 2007 party-list elections. Hence, Oppositor did not fail to participate in the last two (2) preceding elections, as Oppositor failed to participate in only one (1) preceding election – the May 2007 party-list elections – since Oppositor participated in the May 2004 partylist elections. Thus, the first instance above does not apply against the Oppositor. (30) The second instance states the failure to obtain a certain percentage of votes – at

least two per centum (2%) of the votes cast under the party-list system – in two (2) preceding elections. Logically, since the second instance speaks of “failure to obtain a certain percentage of votes,” it presupposes that the concerned party, organization or coalition has participated in the elections by which it has failed to obtain such a required percentage of votes. For how could the concerned party, organization or coalition have the chance and opportunity to obtain such a required percentage of votes if it did not participate in an election in the first place? (31) And such participation in an election by which the concerned party, organization or

coalition has failed to obtain such a certain percentage of votes refers – under the second instance – to participation in two (2) preceding elections. (32) Again, prior to the May 2010 party-elections, Oppositor participated in only one (1)

preceding election – the May 2004 party-list elections – by which it failed to obtain at least two per centum (2%) of the votes cast under the party-list system. Oppositor has participated in only one (1) preceding election, and not in two (2) preceding elections. Hence, Oppositor did not fail to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections, as Oppositor has participated in only (1) preceding election by which Oppositor has failed to obtain at least two per centum (2%) of the votes cast under the party-list 12

system. Thus, the second instance likewise does not apply against the Oppositor. (33) Section 6 (8) of the Party-List System Act states “last two (2) preceding elections”

for non-participation or “two (2) preceding elections” for failure to obtain at least two (2) percent of the votes cast. Not one (1) but last two (2) preceding elections as instances of failure to participate; not one (1) but two (2) preceding elections as instances of failure to obtain at least two (2) percent of the votes cast. (34) Under Section 6 (8) of the Party-List System Act, the failure to participate and the

failure to obtain the required percentage of votes are two different classifications. Non-participation is non-participation in an election. Failure to obtain a certain percentage of votes is failure to obtain a certain percentage of votes. In failure to obtain a certain percentage of votes, one has to participate in an election precisely to obtain votes, and such votes shall be counted. And if the votes obtained are less than two (2) percent, a party fails to obtain said certain percentage of votes. (35) How can a non-participating party be considered to have failed to obtain a certain

percentage of votes if said party did not participate in an election in the first place, and there are no votes for said party to speak of from the beginning? That is why the non-participation and the failure to obtain a certain percentage of votes are two different classifications under Section 6 (8) of the Party-List System Act. (36) Verily, any of the two (2) instances above under Section 6 (8) of the Party-List

System Act by which the registration of a party, organization or coalition under the party-list system shall be removed or cancelled does not apply against the Oppositor. (37) Therefore, Oppositor should be allowed by the Honorable Commission, and be

considered qualified and eligible, to participate in the May 2010 party-list elections.

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PRAYER WHEREFORE, premises considered, it is most respectfully prayed of the Honorable Commission the following: (1)

That this Verified Opposition be given due course;

(2)

That

Oppositor

MIGRANTE

SECTORAL

PARTY

OF

OVERSEAS

FILIPINOS AND THEIR FAMILIES be reinstated in the list of registered national, regional or sectoral parties, organizations or coalitions under the party-list system, and be considered qualified and eligible and therefore allowed to participate in the May 2010 party-list elections; and (3)

That this Verified Opposition be resolved at the earliest possible opportunity for the Oppositor to have sufficient time to avail of other remedies available under the law in case of an adverse decision. Other reliefs just and equitable under the circumstances are likewise prayed for.

RESPECTFULLY SUBMITTED. Quezon City for Manila. 23 October 2009.

National Union of Peoples’ Lawyers Third Floor, Erythrina Buuilding No. 1, Matatag corner Maaralin Sts. Central District, Quezon City (02) 920.6660

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