Comelec chair’s letter to SC on merits of a pending case w threat that TRO may cause postponement of elections is a form of extrajudicial communication to extrajudicially influence the Court

The schedule of the elections and the expiration of the terms of the President and the Vice President are mandated by the elections, as follows:

         “1987 Constitution, Article VII, Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.
“No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.
“Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.
“The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.
“The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.
“The Congress shall promulgate its rules for the canvassing of the certificates.
“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.”

          In other words, the incumbent President and Vice President have no authority to sit in office beyond noontime of June 30, 2016, and absolutely have no authority to sit in any hold-over capacity of any kind.

         As to “postponement” of the presidential elections, the Commission on Elections has no authority whatsoever to postpone the date of the presidential elections – only Congress is authorized do that, but not later than the date that allows for counting and canvassing up to noon of June 30, 2016.

        The Comelec chair wrote the Supreme Court on Sunday that the TRO on the “no bio no boto” policy (no biometrics registration, no right to vote) imperils the holding of the elections as scheduled. Presumably, the Comelec chair could not wait for the Sol-Gen to file the necessary responsive pleading in the Supreme Court and took it upon himself to write the Supreme Court.

        Can a litigant write the justices or judge presiding over the case about the merits of a pending case or proceeding? Sure, any person has the right to petition for redress of grievances.  A judicial proceeding however is governed by the Rules of Court in order to ensure that the rights of all parties are observed, such that the arguments are course thru counsel in the manner provided by the rules with copies furnished on the opposing party.

      The letter of the Comelec chair is a form of extrajudicial communication sent directly to the Court. Writing the Supreme Court justices on a matter pending before them is a way of extrajudicially influencing them, to the detriment of the opposing party who has no access to the extrajudicial communication. That is why the other side is put at a disadvantage when one party is allowed to extrajudicially communicate with the Court without notice upon the other party and without copies of the communication furnished to the other party. Normally, the judge, or the justice, or the clerk of court, who received the letter would direct the litigant to course his/her plaints to his/her counsel, in this case, the Solicitor General. But we all know by this time that some of the Supreme Court justices may have read the letter or may have been made aware of its contents, the Comelec chair having granted interviews on it.

       At the very least, petitioners-opposing party, the Kabataan partylist, should be allowed access to such letter.
But the damage has been done. The Comelec chair has foisted a threat — The threat that they would not be able to conduct orderly elections because of the TRO issued by the Supreme Court. This is a threat.
       The Comelec chair said in an interview that: “The problem is that we are now in limbo on what to do with the 2.4 million no bio voters. The project of precincts (the precinct assignment of voters) is scheduled on Dec. 15.”

      In reality however, the TRO on the deactivation simply means that the Comelec has to proceed with election preparations without deactivating the 2.4 million voters that it wants to methodically disenfranchise. Comelec is not being put “in limbo”, they are simply directed not to disenfranchise 2.4 million voters pending review of the matter but that they should proceed with election preparations upon the status quo or without disenfranchising the 2.4 million voters. News reports show that a few days before the deadline and on the day of the deadline for biometrics registration , Comelec refused to service more than 50 per cent of the voters who had lined up. Comelec argued that the applicants should have lined up earlier and that the number of Comelec personnel and computers was not enough to service them. Note however that these voters and applicants complied with the law and the rules when they lined up a few days before, or on the day of the deadline. Refusing to register them, causing deactivation of their records, when they were in line within the deadline , is illegal – it is a methodical form of disenfranchisement. The Comelec should have devised a procedure whereby all those who had queued, up to the day of the deadline, be allowed to register – these voters complied with the deadline, they had the right to be registered.

     There is a precinct assignment scheduled on Dec. 15;  the voters list and list of candidates have to be finalized. The TRO means these preparations should push thru without, in the meantime, disenfranchising the 2.4 million voters, pending review of the merits. (The Comelec can take cue from experienced managers, administrators, directors, even editors, who, when faced with two contingencies, prepare for both, or make preparations for both).

       But alas, the Comelec chair has already foisted a threat, and a threat by way of an extrajudicial communication directed at the Supreme Court justices at that. Mabait ang Supreme Court.

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