September 5, 2012 PETITION ASSAILING THE VALIDITY OF SECTION 5 (b) (c) & (d), ARTICLE 1 and SECTION 2, ARTICLE

II of the XU-CSG OMNIBUS ELECTION CODE OF 2011 AS AMENDED

STUDENTS RIGHTS AND WELFARE COMMISSION PETITIONER Vs THE 19TH DIRECTORATE RESPONDENT X-----------------------------------------------------------------------------------------------------X

MEMORANDUM FOR THE RESPONDENT

Respondent the 19th Directorate herein referred to as the Directorate, unto this honourable court most respectfully alleges;

I. THE ANTECEDENT FACTS

The 17th Directorate, as the repository of the sovereign will of the students and as a legislative body of the Xavier University Central Student Government passed into law and dully enacted by the President XU-CSG Omnibus Election Code of 2011 together with its amendments which are now the subject of controversy to wit: Section 5, Article 1, of the 2011 Omnibus Election Code of the XU-CSG provides: XXX B. If in the case where the population of those who voted is less than twenty-five percent (25%) of the Xavier University student population as for the CSG President and VicePresident; and less than fifteen percent (15%) of the college student population for the Council Presidents. ELECOM shall then hold for a re-election for the particular position(s) declared failure on a date close to the declaration of failure of elections but not later than thirty (30) days from the declaration of failure of elections. XXX

D. A failure of election shall be declared only once. If in the case where a vacant position does not reach the 25th % for CSG or 15% for the Council in the re-election, the candidate with the highest number of votes shall be declared elected. Section 2, Article 2 Proclamation of President-elect, Vice President-elect and Council Presidents-elect XXX In the case where there is only one candidate for a certain position, he has to attain more than 50% votes of the total population of those who voted. Section 3, Article 2 provides: Re-election for the CSG President, CSG Vice-President, and Directorate. If in the case the lone candidate running for a certain position failed to attain more than 50% of the population of those who voted, a re-election will be done. The candidate who failed to achieve the quota is unqualified for the re-election. The next day after the last day of election, ELECOM will then immediately release COCs for new candidates who want to run for the position. ELECOM will then set re-election schedules but should not be later than thirty school days after the last day of election. Eligibility of the new set of candidates will still be followed as stated in Article X Section 2 of the 2006 XU-CSG Constitution.

Upon the petition for injunction restraining the XU-CSG Electoral Commission from enforcing the CSG Omnibus Election Code of 2011 by the Commission on Students Rights and Welfare (STRAW) against the Electoral Commission (ELECOM) docketed Administrative Case 011213, the Court granted the petition upon the basis of a questionable constitutionality of the assailed provisions and further ordering the STRAW to make pertinent actions on July 3, 2012. On August 30, 2012, Respondent received the notice of the submission of the memorandum for the petitioner before the honourable court Hence, this answer.

II. ISSUES

The respondent in the case at bar cites this sole issue for the court to determine: (a) Whether the Section 5(b) and (d), Article 1 of the XU CSG Omnibus Election Code violates the XU Students Right to Vote;

III. ARGUMENTS
CAUTION IN CITING JURISPRUDENCE OF THE PHILIPPINES WHEN WE HAVE A LAW OR JURISPRUDENCE THAT STANDS WITH IN OUR UNIVERSITY JURISDICTION (1) Petitioner alleges that failure of elections only happen when the electorate fails to elect or when the election has not been held or has been suspended on account of force majeure, fraud, violence and other analogous cases with a citation of Canicosa vs Commission on Elections (282 SCRA 512). Respondent would like to point out that although we recognize the authority of Philippine jurisprudence as cited by petitioner, we cannot concede to it as a binding precedent upon the discernment of the court. At best, these only serve as supplementary, recommendatory and serve as a guide in cases where there is a lack of jurisprudence or law in our own jurisdiction (XU) to support our arguments. In this case, there is no absence of such law or jurisprudence since it is EXPLICITLY mentioned in our Omnibus Election Code the several bases for the declaration of failure of election in Article 1, Section 5 of the said law. We cannot bow before a jurisprudence of national application without first looking into our own laws or jurisprudence within our own jurisdiction for if we do the former, we would erode the very reason why a Directorate, a law-making body, is established or why a Supreme Constitutional Court, the law-interpreting body, is established in our XU-CSG Constitution. Since the Omnibus Election code of 2011 explicitly mentions in it the grounds including the quota system, hence this should be binding and not the cited jurisprudence. THE LAW ENACTED BY THE DIRECTORATE IS ACCORDED A HIGH PRESUMPTION OF CONSTITUTIONALITY (2) In the same light as argued above, Petitioner rhetorically asks how can the XU-CSG ELECOM declare failure of elections on the ground that the total votes does not reach 25% of the total XU population or 15% of the total council population, when in fact VOTING HAD TAKEN PLACE? Respondent answers that it is so because the law our student government dully enacted so provides. Dura Lex Sed Lex. Petitioner cannot simply invoke jurisprudence of national application when there is a law operating in our midst. Respondent never questions that indeed an election has taken place and the will of the students can be ascertained or determined and accorded respect. However, petitioner misses the point that our legitimate law making body the Directorate, in its pursuit of its duty to encourage participation among its constituents1 made a quota system that enjoys a high standard of presumption of constitutionality. It is in this juncture that Respondent would like to elaborate on the substantive elements of the controversy concerning the presumption of constitutionality with jurisprudence of national application since our jurisdiction (XU) lacks such.

Sec 5, Article 3 of the 2005 XU-CSG Constitution

It is well-entrenched in the system of our government backed by rich jurisprudence that laws passed and dully enacted by a legitimate authority deserve a presumption of constitutionality. Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law.2 The petitioner must be able to show that the case cannot be legally resolved unless the constitutional question raised is determined.3This requirement is based on the rule that every law has in its favor the presumption of constitutionality; 4to justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative, or argumentative. This concept flows primarily from the concept of separation of powers of 3 co-equal branch of government which our XU-CSG Constitution is based. Presumption of validity of the internal workings of each co-equal branch is primordial for a functioning and peaceful government. From a co-equal branch such as the law-making body, the Directorate ought to be accorded by another co-equal branch, the interpreter of the law, the Supreme Constitutional Court and vice versa its due presumption of validity. It is upon this presumption that our jurisdiction has placed a high bar for overturning such only upon the showing of an actual violation of the XU-CSG Constitution. In this petition, the Supreme Constitutional Court is called upon to exercise its power of judicial review to ascertain whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch of this Student Government as mandated in the constitution.5 It is now firmly established that the power of judicial review is merely an aspect of judicial power. Hence, the first requisite for the exercise of judicial review is that there must be before the court an actual case calling for the exercise of judicial power. The question before it must be ripe for adjudication, that is, the governmental act being challenged must have had an adverse effect on the person challenging it.6 Second, the person challenging the act must have standing to challenge, that he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.7 The above are the essential requisites for judicial review. In addition to these essential requisites, jurisprudence has also evolved other auxiliary rules. Thus, it was pointed out in People vs Vera8 that as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal.

Farias v. The Executive Secretary G.R. Nos. 176951, 177499 & 178056, December 21, 2009 People v. Vera, 65 Phil. 56 (1938).

4 5

Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004, 435 SCRA 371. Article 8, Section 1 of the 2005 XU-CSG Constitution 6 PACU v Secretary of Education, 97 Phil. 806 7 People v Vera, 65 Phil 58, 89 (1937) 8 Supra

In summary, for the Court to even consider the constitutionality of an assailed provision of law, it must satisfy the following requisites: (a) There is an actual case; (b) That the petitioner has standing; (c) Raised in the earliest opportune time. FAILURE OF ELECTION IS NOT A VIOLATION OF THE STUDENTS RIGHT TO VOTE, NOT EVEN AN ACTUAL VIOLATION. (3) To satisfy the first requisite, the petitioner should present before the court that there is an ACTUAL case in its allegation that the said provision violates the students right to vote by imposing a quota of 25% of the XU student population for the CSG level and 15% of the per college population for the Council level otherwise the election are deemed failed. In short, they must show that there is an ACTUAL violation of such right. Actuality connotes the ripeness for adjudication, that an imminent actual violation of the right to vote of the students happens by the operation of such provision. Essential in the resolution of this case is the understanding of what constitutes the students right to vote. The students right to vote in our academic jurisdiction is neither explicitly mentioned in the constitution of the XU-CSG nor as in the Magna Carta of Students Rights and Welfare, at best, the Right to Vote is couched in the broader term of the Students Right to participate in policymaking in Article 7 of the 2011 Magna Carta of Students Rights and Responsibilities (Magna Carta). It might also be considered as a responsibility as provided for in Article 4 Section 1, No. 11 of the Magna Carta where it declares that it is the responsibility of the students to participate in and support the various student government units. Either seen as right or responsibility, common to these general citations is the fact that the right to vote has and individual and communal dimension. In its individual dimension, it is the freedom of the students to choose their representatives based upon the merits of their own judgement without force, threat or intimidation from any person and without regard to his sex, status, gender, educational background, wealth or beliefs. The assailed provisions of law which only provides a mechanism for the declaration of a failure of election as it is worded clearly does not create a situation where the individual judgements of each voting student is subverted, manipulated, or forced to produce a vote contrary to what he or she intended. It does not even establish individual qualification in order that a person could vote. In its communal dimension, the right to vote serves as the clear source of the expression of the sovereign will of the student body. It is the source of the mandate of the student government in which it derives its authority to govern. This is the bases where the legislative body, in its pursuit of its duty to encourage participation among its constituents9 established an election quota system. The basic premise of the establishment of the quota is to broaden the base on which the government can derive its authority. It flows from the realization that a government, the Supreme Constitutional Court included, entrusted to lead the entire student body, cannot effectively govern when its mandate only comes from a hypothetically meagre three, four, ten or one hundred votes. It is upon this reality that the legislative made sure that they establish a reasonable quota system which is not too low to devoid those elected a clear mandate to lead and not too high that it is well beyond the boundaries of our electoral reality. Furthermore, a
9

Sec 5, Article 3 of the 2005 XU-CSG Constitution

declaration of failure of election is far from violating the students right to vote. What it only does is to re-open the discernment process of the students for the last time in account of the nonattainment of the quota provided for by law. It does not discredit their original choice. They are free to vote again who they originally voted for. They are not forced, coerced or intimidated by such declaration. Their judgement is far from being substituted. As a matter of fact, they are given a chance to rethink their choice and also give those who have not voted a chance to cast their vote and at the same time, motivate the ELECOM, the political parties and other student organizations to encourage more to vote which its benefits will be elaborated further below. It should also be noted that the law has a safety net mechanism articulated in Article 1, Section 5, d. Clearly, the declaration of failure of elections does not operate in violation of the students right to vote. Furthermore, the quota is NOT designed to quell the voices of the students through a POSSIBLE failure of elections but it is designed as a motivating tool for the authorities charged with the administration of the election to give extra-efforts to encourage the students to vote. For two years since the implementation of the provisions in question, the court should take judicial notice of the fact that no failure of elections have ever been declared and such provisions have clearly motivated not just the ELECOM but also the entire government apparatus, political parties and other student organizations to implement massive information dissemination for the election which resulted to one of the HIGHEST voters turn-out in the recent history of student governance in the university. This would translate to a more dynamic student participation in governance and produce a student government with a strong anchor on its mandate since almost half of the student population, a sizable and respectable amount, bestowed their trust upon them the student leaders. How can such provisions which have ACTUALLY resulted to such good results could be struck down as unconstitutional over a flimsy DOUBTFUL, HYPOTHETICAL, SPECULATIVE, and ILLUSIONARY accusation of a violation of the students right to vote by a failure of election, more so it is even just a possibility, and even more so, failure to election is not even a means of violating the students right to vote as earlier argued. The court as provided by jurisprudence has no authority to resolve hypothetical or feigned constitutional problems.10 There is clearly no actual violation of the students right to vote. (4) The 2nd requisite for the court to exercise judicial review is standing. Respondent does not question the standing of the petitioners. (5) The 3rd requisite for the court to exercise judicial review is that it should be raised in the earliest opportune time. Clearly, the law has been in operation for 2 academic years. Respondents are estopped in questiong the validity of the law since they have freely participated in the conduct of the elections without any action against its validity.

V. CONCLUSION
In sum, the petitioner, having the duty to overthrow the high presumption of constitutionality of the law miserably fails to do by not showing any actual violation of the students right to vote and for failing to raise it at the earliest opportune time. At best, the petitioners averments are
10

Muskrat v United States, 219 U.S. 346, 362

merely speculative, doubtful, hypothetical and illusionary which fails to satisfy the first requisite for the court to exercise its power of judicial review. In other words, there is no evidence that shows actual violation of the students right to vote compared to the actual benefits the law has already clearly created.

IV. PRAYER
Respondent respectful prays that the honourable court would not grant the petition for amendment and declare the assailed law as valid and constitutional.