On January 30, 2010 at 3:00 o'clock (sic) in the afternoon, pursuant to Comelec Minute Resolution No. 10-0042 dated January 19, 2010, the Information Technology Department of Comelec published a list of candidates with the instruction that "(s)hould there be any misspelling, omission or other errors, the concerned candidate must call the Law Department's attention within five (5) days from this publication for the purpose of correction. Thereafter, Comelec shall be relieved from liability"6 and the final list shall then be prepared for printing.7
1) There will be insurmountable and tremendous operational constraints and costs implications in complying with the status quo order.
2) To add the petitioner's party/acronym in the database of the List of Candidates for sectoral party/organization or coalition participating in the party-list system of representation will have a critical impact on the already tight and overstretched election timelines of the Commission. Copy of the Revised Automation Implementation Calendar is hereto attached as Annex "1".
3) Printing of the ballots is an intricate and complicated process. It is not a simple process of encoding data in a computer and printing the ballots using a printer attached to the computer.
4) Prior to the printing of the ballots, several technical and mechanical preparatory activities have to be done which include among other things:
a. Generation and back-up of database containing the candidates['] information;
b. Configuration of Precinct Count Optical Scan (PCOS) machines and Consolidation and Canvassing System (CCS);
c. Creation and design of one thousand six hundred seventy-four (1,674) ballot templates;
d. Production of the ballot templates;
e. Verification of each and every ballot template to ensure that it contains the accurate names of candidates for the national positions and acronyms of sectoral party/organization or coalition participating in the party-list system of representation and their corresponding assignments to the correct districts, provinces, municipalities/cities, and clustered precincts. Since the ballots are precinct-specific to ensure the security of the voting and counting, this means verification of seventy six thousand three hundred forty (76,340) variations of the one thousand six hundred seventy-four (1,674) ballot templates; and
f. Placing several security markings in the ballots.
5) In fact, the installation of the Election Management System, which is used to generate the PCOS machines configuration and ballot templates production have already been in place as of January 25, 2010.
6) To comply with the status quo order will not only affect the printing of the ballots but also have serious implications on other activities of the Commission, such as:
- The setting of configuration of the PCOS and CCS machines;
- Testing of PCOS machines in their actual configuration with the ballots;
- Deployment of PCOS and CCS machines and transmission equipments;
- Checking/testing, demos, and sealing of the PCOS and CCS machines; and
- Shipment of the ballots to all parts of the country.
7) Due to several re-scheduling of the timelines of the Commission, Smartmatic-TIM cautioned that it is extremely risky to change the database containing the candidates' information at this point in time. Any change in the database and other preparatory activities would mean:
- Twelve thousand (12,000) PCOS might not be configured and dispatched to the field on time; and
- Four million eight hundred thousand (4,800,000) ballots might not be printed before the deadline and shipped out on time.
Even if the Commission will resort to contingency measures to configure and ship out the twelve thousand (12,000) PCOS machines on time, the printing of the ballots cannot be completed before May 10, 2010. This means that four million eight hundred thousand (4,800,000) voters might not be able to vote due to lack of ballots, thus disenfranchising them.xxx xxx xxx
10) Hence, the Commission fervently requests the understanding and forbearance of the Honorable Court which is the bastion of our justice system, protector of the democratic processes and our last resort in ensuring a clean, peaceful, orderly and credible May 10, 2010 elections, to take a second look on the status quo order issued on February 2, 2010.8
The preceding pronouncement [referring to the Court's Resolution granting PGBI's petition] may appear to be inconsequential and a pyrrhic victory in view of the error and omission to include the name of the petitioner in the ballots for the scheduled elections. How this Honorable Commission will find the means and/or alternative to comply with and/or implement the directive in said decision is a matter left to its judgment and discretion.
Be that as it may, it is the petitioner's considered view that a definitive ruling, including the grant of its Motion for Reconsideration in SPP No. 09-004 (MP), be expressly made in order that the limitation prescribed in Section 6(8) of R.A. No. 7941, replicated in COMELEC Resolution No. 2847, promulgated on June 25, 1996, will not apply to herein petitioner for purposes of the May 2013 elections.
While the implementation of the dispositions in the said Resolution has become a physical impossibility, it is petitioner's respectful submittal that it should not be penalized for not being able to participate in the coming May 10, 2010 party-list election. [parenthetical note at 1st paragraph supplied; underscoring in the original].
The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice.
Under our Rules of Court, contempt is classified into direct and indirect. Direct contempt, which may be summary, is committed "in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so."
Indirect contempt, on the other hand, is not committed in the presence of the court and can be punished only after notice and hearing. Disobedience or resistance to a lawful writ, process, order or judgment of a court or injunction granted by a court or judge constitutes indirect contempt. We quote Section 3, Rule 71 of the Rules of Court, enumerating the acts punishable as indirect contempt, as follows:"SEC. 3. Indirect contempt to be punished after charge and hearing. -- After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings."
SEC. 7.Punishment for indirect contempt.- If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both.xxx
Contempt of court applies to all persons, whether in or out of government.Thus, it covers government officials or employees who retired during the pendency of the petition for contempt.Otherwise, a civil servant may strategize to avail himself of an early retirement to escape the sanctions from a contempt citation, if he perceives that he would be made responsible for a contumacious act.The higher interest of effective and efficient administration of justice dictates that a petition for contempt must proceed to its final conclusion despite the retirement of the government official or employee, more so if it involves a former member of the bench.
Endnotes:
1 Rollo, p. 186.
2 Id. at 83.
3 Dated April 29, 2010, id. at 161-172.
4 PGBI Manifestation Cum Comment dated July 19, 2010, id. at 201-207.
5 Id. at 88-B.
6 Id. at 192-193. Significantly, the Comelec conveniently omitted the underlined phrases in its Compliance.
7 See Annex "A" of PGBI's Manifestation (of Continuing Objection to Comelec's Defiance of the Order of the Honorable Supreme Court), id. at 181.
8 Extremely Urgent Motion for Reconsideration and To Lift Status Quo Order filed by the Comelec on February 3, 2010, id. at 90-94.
9 Id. at 112-126.
10 Id. at 113.
11 Id. at 115.
12 Id. at 161-172.
13 Regarding PGBI's motion for reconsideration of the Comelec Resolution (No. 8679 dated October 13, 2009) deleting it from the roster of accredited party-list groups or organizations.
14 Rollo, pp. 177-183.
15 Id. at 186-187.
16 Id. at 194.
17 See the Grounds for the Comelec's Motion for Reconsideration quoted at pp. 3-4 of this Resolution.
18 Rollo, pp. 201-211.
19 Id.
20 Id. at 213-219.
21 En banc Resolution in G.R. No. 147589 & G.R. No. 147613(Bayan Muna v. Commission on Elections, et al.), February 18, 2003.
22 G.R. No. 191771, May 6, 2010.
23 G.R. No. 188456, September 10, 2009, 599 SCRA 69.
24 G.R. No. 147589, June 26, 2001, 359 SCRA 698.
25 Supra note 21.
26 Comelec Chairman Benjamin S. Abalos Sr., Commissioners Luzviminda G. Tancangco, Rufino S.B. Javier, Ralph C. Lantion and Mehol K. Sadain were eachfinedin the sum of P20,000.00 while Commissioners Resurreccion Z. Borra and Florentino A. Tuason Jr. were eachfinedP5,000.00. In the case of Commissioners Borra and Tuason, Jr., the Court noted that "the actions committed by both commissioners are less serious in degree when compared with those of their colleagues,"thus "a lesser penalty [was] meted out to them," ibid.
27See Jainal v. Commission on Elections, G.R. No. 174551, March 7, 2007, 517 SCRA 799.
28 In the Matter of the Contempt Orders Against Lt. Gen. Jose Calimlim and Atty. Domingo A. Doctor, Jr., G.R. No. 141668, August 20, 2008, 562 SCRA 393,401.
29 G.R. No. 131547, December 15, 2005, 478 SCRA 27.
30 A.M. No. MTJ-08-1698 (Formerly OCA I.P.I. No. 04-1523-MTJ), March 3, 2008, 547 SCRA 295.
31 See Kimberly Jane T. Tan, Comelec Chief moves up resignation to Jan. 15, January 15, 2011, available at http://www.gmanews.tv/story/210671/comelec-chief-moves-up-resignation-to-jan-15, last visited February 14, 2011.
32 See Riziel Ann A. Cabreros, 2 Comelec commissioners retire, February 1, 2011, available at http://www.newsbreak.ph/2011/02/01/2-comelec-commissioners-retire/, last visited February 21, 2011.
33 G.R. Nos. 154211-12, June 22, 2009, 590 SCRA 214, 345.
34 See for example the requirements of Sections 4, 5 and 6(1) to 6(7) of R.A. No. 7941. See also Mariano, Jr. v. Comelec, G.R. No. 118577, March 7, 1995, 242 SCRA 211.
35 Honorable Chairperson Jose A.R. Melo.
36 Honorable Commissioners Rene V. Sarmiento, Nicodemo T. Ferrer, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Gregorio Y. Larrazabal.
DISSENTING OPINION
ABAD, J.:
The majority would have the Court severely reprimand the Chairman and Members of the Commission on Elections (COMELEC) for failing to comply with the Court's order of February 2, 2010 that directed that body to maintain the status quo in the case of petitioner Philippine Guardians Brotherhood, Inc. (PGBI). The order meant placing its name in the list of registered and accredited party-list organizations vying for congressional seats in the May 10, 2010 elections pending adjudication of the case.
I am compelled to disagree with the majority since, in my view, the facts do not warrant such condemnation.
On October 13, 2009 the COMELEC issued Resolution 8679, deleting on various grounds the names of several party-list groups, including PGBI, from the list of registered parties, organizations or coalitions. This gave PGBI and the others with it ample opportunity to seek redress from this Court before the window for possible reinstatement was to be permanently shut out by the need to finalize such list in time for an electronic election.
In the case of Ang Ladlad,1 a party similarly excluded from the list, it filed its petition for certiorari with this Court on January 4, 2010. On January 12, 2010 the Court found sufficient reason to issue a temporary restraining order (TRO) against the COMELEC pending a decision of the case on its merits, which TRO effectively placed Ang Ladlad back into the COMELEC list. Ang Ladlad was thus voted for in the May 10 elections even when the Court had not yet decided the merits of its case.
Here, the PGBI filed its petition for certiorari with this Court on December 23, 2009. Unfortunately for it, the Court did not find merit in its petition and so dismissed the same on January 12, 2010 on the ground that the COMELEC committed no grave abuse of discretion in issuing its contested resolutions. Consequently, unlike Ang Ladlad, PGBI's name remained out of the list.
PGBI filed a supplement to its petition on January 15, 2010, with plea for the issuance of a TRO but the Court merely noted the same since it had already dismissed the main petition.
Four days later on January 19, 2010 the COMELEC issued Minute Resolution 10-0042 stating that it would be publishing the Certified List of Candidates for the May 10, 2010 national and local elections and that the candidates could seek correction of any "misspelling or omission of names of the candidates or an error in the entry of information" in the list within five days of the publication.
On January 25, 2010 (a Monday) PGBI filed its motion for reconsideration of the Court's January 12, 2010 resolution that dismissed its petition. It also asked anew for the issuance of a TRO.
Meantime, on January 30, 2010 the COMELEC published the certified final list of candidates for both local and national positions by posting it on its website, with the following statement: "Should there be misspelling, omission or other errors, the concerned candidate shall call the Law Department's attention within 5 days from this publication for the purpose of correction."2
Also on January 30, 2010 the COMELEC submitted to Smartmatic-TIM, Inc. the data base the latter was to use for the configuration of the Precinct Count Optical Scan (PCOS) and Consolidation and Canvassing System (CCS) machines and the printing of the ballot template. The submission of this data base to Smartmatic-TIM was the irreversible point against any further attempt to insert in the list the names of other candidates or parties to be voted on in the national and local elections of May 10.
On February 2, 2010 (a Tuesday), acting on PGBI's motion for reconsideration dated January 25, the Court resolved to issue an order directing the COMELEC to revert PGBI's case to the status quo prior to the controversy, meaning that COMELEC was to reinstate PGBI's name in the official list of parties and individuals that could be voted on in the elections. The Court caused the resolution to be served on the COMELEC on the same day, February 2.
On February 3, 2010 the COMELEC noted the Court's status quo order which, if enforced according to it, meant recalling the data base that was then being used in the on-going configuration of the PCOS and CCS machines and the printing of the ballot template. As it happened, Smartmatic-TIM had in fact finished 500 of the 1,674 ballot templates needed for the elections and was about to submit these to the COMELEC on the same day for verification and approval. Such a recall, COMELEC added, would have meant a failure to print 4.8 million ballots on time.
Consequently, on the same day, February 3, 2011, the COMELEC did not lose time to file with the Court an "extremely urgent" motion for reconsideration and to lift status quo order on the ground that, to comply with the order of February 2, would cause havoc to the COMELEC preparation for the forthcoming elections. Further, since the processing of the data base had already begun, undoing what had been accomplished and redoing the whole process in order to include PGBI's name in the national elections would spell disaster in the work of configuring the PCOS and CCS machines, testing and deploying them along with other equipment throughout the islands, checking and sealing the machines, and printing and shipping the ballots. The waves of delays in COMELEC's timelines would have meant possible postponement of the elections at great costs and confusion.
Nearly two months later on April 29, 2010, without resolving the COMELEC's motion for reconsideration, the Court granted PGBI's petition, declared it qualified, and annulled the COMELEC resolutions that excluded it from the 2010 elections. Then, acting on PGBI's manifestation dated April 12, 2010 that the COMELEC had refused to include its name on the list of parties that could be voted on, the Court required COMELEC on May 7, 2010 to explain why it should not be held in contempt for failing to comply with the Court's February 2 status quo order.
The COMELEC submitted its explanation, essentially reiterating what it said in its "extremely urgent" motion for reconsideration and maintaining that it did not intentionally defy the status quo order. The COMELEC added that it was technically, legally, and physically impossible for it to comply with the order in view of the serious operational and financial consequences that such compliance would have entailed. PGBI's position, on the other hand, was that the COMELEC could have complied with the Court's order with no resulting complications if it had wanted to.
The Bottom Line Issue
At bottom, the issue is whether or not it was still in fact feasible for the COMELEC to restore PGBI's name on the final list of party-list candidates without seriously setting back its preparations for the electronic elections and incurring huge costs.
Discussion
Although the matter presents a factual issue, the majority did not regard it necessary to order the reception of evidence for its resolution. The majority simply rejects the COMELEC explanation, stating that this is belied by the fact that the COMELEC published the final list of candidates on January 30, with notice that any concerned candidate could still call its Law Department to correct "misspelling, omission or other errors" in the published list of candidates within five days of such publication, with the last day falling on February 4.
1. But, clearly, the opportunity provided above was only for "errors" extant on the final list like misspelling (example: listed as "Matias" when the correct spelling is "Mathias"), omission (example: a missing nickname), or other errors (example: interchanging the positions of surname and first name). It may be assumed that such errors do not affect the main configuration of the final list of candidates, thus, permitting last minute corrections.
Here, the insertion of a new name in the fixed, electronically arranged or configured, list of names, said the COMELEC, was not possible without undoing many things that depended on such configuration. Inserting the name of PGBI in that configuration could be the equivalent of trying to sit an extra passenger on a row of seats in a plane - when others have already taken those seats. The settled configuration of the seats in a plane would simply refuse to yield to an extra passenger. PGBI has presented no expert opinion that putting its name in the electronic configuration of the list at such late date was technically feasible without throwing the whole COMELEC timetable into disarray.
2. When the COMELEC published the final list of candidates on January 30, 2010, it served notice that "Should there be misspelling, omission or other errors, the concerned candidate shall call the Law Department's attention within 5 days from this publication for the purpose of correction." Clearly, PGBI could not rely on this notice since the permitted correction was reserved only to "concerned candidates." Having been officially disqualified from running for elections, PGBI cannot be regarded as a concerned candidate covered by the announcement.
3. The COMELEC was not indifferent to the Court's status quo order that was served on it late afternoon of February 2, 2010. On the next day February 3, the COMELEC promptly filed an "extremely urgent" motion for reconsideration and to lift status quo order, pleading for understanding and explaining why complying with the order was operationally and financially impossible. COMELEC acted responsibly and with appropriate deference to the Court.
4. Despite being told of the reasons why the COMELEC could not comply, the Court chose not to deny its motion for reconsideration readily. The Court did not insist that the COMELEC comply with its order come what may. Consequently, since the Court was itself quite unwilling to take responsibility for the dire consequences of such compliance, would it be fair to punish the COMELEC for declining to take on that responsibility? And how can the Court, more than three months later, require the COMELEC to show cause why it should not be punished for disobeying the February 2 status quo order, when the Court did not itself act on the COMELEC's day-after explanation and motion for reconsideration of that order?
5. Finally, PGBI makes no claim that the COMELEC singled it out for exclusion and corrected the list after January 30, 2010 to allow the entry of the names of other party-list candidates similarly situated as PGBI. The COMELEC gave no special favor to anyone. Consequently, it cannot be said that the COMELEC acted iniquitously against PGBI.
In any event, it was not the Court's fault that it issued its status quo order in this case at such a late date. The petition for certiorari that PGBI filed with this Court on December 23, 2009 failed to persuade. Indeed, the Court dismissed it outright on January 12, 2010. PGBI filed its motion for reconsideration only on January 25, 2010 with the result that the Court had the opportunity to take up such motion only on February 2. Still, mistakenly believing that it was not too late, the Court issued its status quo order. The Court cannot visit such mistake upon the COMELEC. It would not be fair.
For the above reasons, I vote to accept the COMELEC's explanation of why is should not be held in contempt satisfactory.
Endnotes:
1 Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010.
2 See
. Last visited March 7, 2010.