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, 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 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 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

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 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: