The final decision of Sim v. COMELEC is so shocking that it seems to be a reincarnation of Javellana v. Executive Secretary in the history of Ateneo campus politics.
In the latter case, the Supreme Court ruled for the validity of the 1973 Constitution, despite the fact that this charter was not ratified in accordance with the procedures of the 1935 Constitution. For example, the ratification did not undergo secret balloting but mere raising of hands. Additionally, persons between 18 and 21 years old were allowed to participate in the “ratification”—actually, the government said that it was just “consultation” until then President Ferdinand Marcos changed his mind and described the consultation as the expression of the sovereign will of the people—when the 1935 Constitution limited participation to 21 years old and above. The notoriety of the Javellana case in public consciousness is a consequence of this decision enabling Ferdinand Marcos to dress with legal cover the naked abusiveness of his dictatorship. To legal circles, however, Javellana is the ultimate example of how not to decide on a constitutional question. The process in which the 1973 Constitution was made effective is full of violations of constitutionally prescribed procedures that even a law-school freshman, upon reading the case, wonders why a majority of the Justices voted for the new charter’s validity.
Coincidentally, both Javellana and Sim v. COMELEC are cases that concern voter eligibility. For the reader’s sake, the facts of the Sim case are restated briefly: An amendment to the Electoral Code was introduced by the Ateneo COMELEC, and concurred by the Ateneo Student Judicial Court (SJC), which excluded graduating students from voting in the upcoming General Elections. Four graduating students questioned the constitutionality of the amendment, but the Student Judicial Court ruled against them.
The main issue is the proper interpretation of “Every student has the right to vote members of the student body into Sanggunian through a fair and just elections” [SANGGU CONST., art. II, sec. 4]. This should be read in relation to art. I of same Constitution: “All undergraduate students of the Loyola Schools are members of the Loyola Schools Student Body. Auditors, Cross-registrants, Public Servants, and Special Students are not under the jurisdiction of this Constitution, but may seek its protection with policies and bodies instituted in this Constitution.”
The most compelling argument that the petitioners of Sim v. COMELEC made was that the challenged provision in the Electoral Code was a violation of a fundamental right, thus presumed unconstitutional and deserved strict scrutiny. The petitioners’ line of reasoning is consistent with Philippine jurisprudence where unnecessary intrusions or restrictions in fundamental rights are deemed unconstitutional and the burden to prove otherwise falls on the government agent that created the challenged act or policy. Moreover, this government agent, to overturn the presumption of unconstitutionality, must pass “strict scrutiny”: First, he must show that the government has a compelling interest in enforcing the policy; and second, that the policy is the least burdensome means to achieve the purpose of the policy.
The COMELEC did not submit a Reply, so the presumption of unconstitutionality should have operated. Rather, the ASJC decided to “lawyer” for COMELEC’s position in lieu of adhering to the principles governing fundamental rights—e.g., the presumed unconstitutionality principle and the strict scrutiny test—which have been consistently used and affirmed for decades by both the Philippine and US Supreme Courts.
Also, the SJC faulted the petitioners for citing Philippine jurisprudence which the former said was inapplicable to the case. The SJC said: “Citing cases such as the deployment of the Marines in the Philippine National Police during visibility patrols, or the enforcement of police power by the City of Manila to infringe on people’s rights to life, liberty, and property have done their job in supporting definitions provided by the Petitioners, but have no applicable position in the context of the case at hand.” The SJC seems to suggest that the Petitioners should have cited only electoral cases which excluded certain groups from voting.
I disagree with the above contention. Yet, assuming that SJC made the correct understanding of how to use case doctrines, the Court violated its very own ruling when it mentioned Sanidad v. COMELEC to define “political question” just to say that it could not compel the COMELEC to choose between referendum or plebiscite. The Sanidad case concerns the validity of the power of then President Marcos to propose amendments to the Constitution in the absence of the interim National Assembly. Hence, in the very same decision where the SJC implied that parties should cite doctrines only from cases strictly factually similar to the current case, the SJC disregarded its own advice to cite a definition in a case totally different from Sim v. COMELEC in terms of facts.
Another disturbing implication of the decision is that the SJC added another requirement for voter eligibility, which was never expressly stated in the Constitution. It ruled: “Stakeholder is defined as a student WITH INTEREST in the LS Sanggunian that will be CONFIRMED affected by the actions and policies of the LS Sanggunian. (emphasis mine)” A voter must be a stakeholder, as defined, to be able to vote. The word “confirmed” here implies a voter must first prove that he is “with interest” in the Sanggunian; and then that he was affected by Sanggu actions and policies. The burden falls on the voter to prove that he is qualified to vote, subject to a confirmation process, in contradiction to the liberal wording of the Sanggunian Constitution that “every student has the right to vote”.
The exclusion of graduating students, the SJC reasoned, is akin to the exclusion of non-freshmen in Freshman Elections, or the exclusion of, say, students from other schools when voting for a JGSOM School Representative. The reference to the Freshman Elections and the election of School Representatives is irrelevant. Article V, secs. 2.2. and 2.3. of the Sanggunian Constitution expressly provide that School and Course Representatives are elected by their Constituencies. There are restrictions on who can vote for School Representatives because the Constitution says so.
The SJC made an analogy about students who are “on leave of absence.” To quote: “While the 2016 Constitution provides the right for every student to vote, there may be instances wherein students are barred from voting, such as being on Leave of Absence from the University.” This is improper. The Constitution never explicitly stated that students on leave of absence do not have the right to vote. As far as I know, the current Electoral Code is also silent on the matter of students on leave of absence. Students on leave are simply not exercising their right to vote, and hence, we have taken for granted that they may have no right to suffrage. As such, the reference made by the SJC indirectly constitutes a ruling on the right to vote of students on LOA, WITHOUT giving them the right to be heard. As if denying the graduating seniors’ right to vote is not enough, the SJC through Sim v. COMELEC violated the LOA students’ right to due process.
There are other concerns I have regarding the decision, which I will no longer expound unless I intend to write a textbook on Constitution and Statutory Construction. I will just end with a note of thankfulness that Sim v. COMELEC is not an actual Supreme Court decision.
Or else, I will fear for my fundamental rights.
Jan Fredrick Cruz (AB EC-H ’14) signed the online petition in support of the seniors’ right to vote. He was a staffer of The GUIDON’s Beyond Loyola section, S.Y. 2013-2014 and a former Secretary General of Matanglawin, S.Y. 2011-2012. Views expressed here are his personal views.
