JOSE P. BUENVIAJE, NAZARIO O. FERNANDEZ, AND FELIXBERTO E. BAYANI, IN HIS CAPACITY AS ELECTION REGISTRAR OF CAINTA, RIZAL, PETITIONERS, VS. THE HONORABLE JUDGE BENJAMIN H. AQUIN…

In this original action for prohibition, the Court dismisses the
petition and holds that where the applicants-voters were in fact “refused
registration” because the precincts where they sought to apply for
registration had run out of registra­tion forms, respondent court properly took
cogni­zance and jurisdiction over the inclusion petitions, contrary to
petitioners’ claim that such inclusion proceedings may not be filed “where
no application for registration has been filed at all.”

The twenty inclusion petitions^[1]
were filed on October 14, 1971
with respondent court on behalf of 146 applicants seeking a judicial order for
their inclusion in the permanent lists of voters of their corresponding
precincts in the municipality of Cainta,
Rizal.  They averred that notwithstanding
their being qualified voters, they were refused registration when they
presented themselves for re­gistration on October 9, 1971 (the last day for registration of voters
at the precinct level), for the reason that the boards of election inspectors
had run out of registration forms.

Petitioners Jose P. Buenviaje and Nazario O. Fernandez, as
candidates for mayor and vice-mayor, respectively, and their co-petitioner,
Felixberto E. Bayani, as election registrar and election registration board
chairman of the municipality of Cainta,
intervened in the proceedings.  While
taking no issue on the facts, petitioners raised two purely legal questions
challenging respon­dent court’s jurisdiction, as follows:  (1) Section 136 of the Elec­tion Code of
1971, Republic Act 6388, on inclusion proceedings, “has no application to
situations such as the present where no appli­cation at all has been
filed” and (2) the personal notices served on October 14, 1971 on
the board of inspectors for the hearing set on October 22, 1971 at 8:30
a. m. was short of the ten-day notice allegedly required by section 139 (b) of
the code and constituted a “jurisdictional defect.”

Upon respondent court’s upholding its jurisdiction, peti­tioners
filed the present petition on October
25, 1971, which was heard by the Court on October 28, 1971 due to its urgent nature.^[2]

The Court finds the issues raised by petitioners to be without
merit.

1.  On the first issue, it is
quite obvious from the pertinent provisions of section 136 of the code that the
previous filing of an application for registration by the voter is not a
condition sine qua non or a jurisdictional requirement for the
voter-applicant to file an inclusion petition thereunder, The cited section
reads:

“SEC. 136.  Application
for inclusion of voter in the permanent list.  — Any person who has been refused
registration or whose name has been stricken out from the permanent list
of voters may at any time except sixty days before a regular election or
twenty-five days before a special election apply to the proper court for an
order directing the election registration board or the board of inspectors as
the case may be, to include or reinstate his name in the permanent
list of voters, attaching to his application for inclusion the certificate
of the election registration board or the board of inspectors regarding his
case and proof of service of a copy of his application and of the notice of the
hearing thereof upon a member of said board.^[3]

x     x     x

Those who have been refused registration because of an adverse
decision of the election registration board or the board of inspectors on their
application for registration would of course have the appli­cation that
petitioners lay so much stress on. 
Similarly, those already registered but whose names have been stricken out
from the permanent lists would have no trouble meeting petitioners’
self-conjured condition of a pre-existing application for registra­tion.

But where the voter-applicants have been refused registra­tion
because of an admitted shortage of registration forms as properly certified to
by the boards of election inspectors and they could not fill up any
applications because no forms were forthcom­ing notwithstanding their waiting
for them up to the last hour of October 9, 1971, it would be imposing an
impossible condition – lex non intendit aliquid impossible – to require
that their petitions for inclusion must be based on and accompanied by voters
appli­cations which were never furnished them in the first place.

2.  It is elementary that
where a qualified voter has done everything required of him to register, the
failure of the election officers to do their part in any detail — here, the
failure to supply the necessary registration forms — cannot be invoked to
deprive the voter of his fundamental and constitutional right to vote.  And such failure to have the forms, if
willful, could be cause for charg­ing the election registrar of the serious
election offense under sec­tion 231, par. 6 of the code, which so punishes
“(A)ny person who delays, or hinders or obstructs another from registering
as a voter or from taking steps leading thereto.”

At the hearing of this case, it was brought out clearly that
election registrars, such as petitioner registrar at bar, need to undergo a
basic reorientation to appreciate that their main duty under the law is to help
qualified voters duly register in the perma­nent list of voters so that they
may be enabled to exercise their sacred right to vote, rather than place
obstacles to their proper registration and resist their earnest efforts to
secure judicial orders for their inclusion.

For according to petitioners, voters-applicants should first
avail of the administrative remedy of requesting the Comelec author­ities for
the application forms and then file mandamus proceedings, if necessary, to
obtain such registration forms, which must then be duly accomplished and
processed (notwithstanding the lapse of the only day for registration of voters
at the precinct level on Oct­ober 9, 1971) before the voters-applicants may be
allowed to ins­titute inclusion proceedings. 
Such a tedious bureaucratic approach, of course, is the surest way of
discouraging any qualified voter to register and defeating his right to
register and vote.

3.  Accordingly, the Court
issued at the hearing a summary order to petitioner registrar to furnish
respondent court by that same afternoon with 146 sets of CE Form No. 1 (Voters
Registration Record) and the corresponding Identification Cards (CE Form No. 2)
to be used in connection with and for proper identification of the 146
applicants for inclusion in the proceedings below, which was duly complied with
as per manifestation filed on the same day. 
(It need only be mentioned that since the registrar’s preoccupation was
that the applicants-voters should accomplish the registration forms for proper
identification before the courts may order their inclusion, he should have
furnished on his own initiative such registration forms to respondent court
with­out need of this Court’s order.)

With the registration forms now available, respondent court may
order, if practicable, the boards of election inspectors of the sixteen
precincts involved in the twenty inclusion proceedings to re­convene and
process the applications as accomplished by applicants-voters, submitting the
results to respondent court which may then issue or not the corresponding
inclusion order.  If the boards of
inspectors may no longer be convened due to the shortness of the time,
respondent court may call upon the election registrar for assistance in passing
upon the applications and thereafter rule upon the inclusion petitions.

4.  What has been set out in
the preceding paragraph 3 is the ideal procedure, so that the application forms
as accomplished by the voters-applicants and granted by respondent court may in
due course be transmitted to the boards of inspectors for incorporation into
the precinct book of voters, as if the boards had favorably acted upon them in
the first instance under section 114 of the Code.^[4]
But such procedure may not always be practicable in other parts of the country,
where additional registration forms may not be as easily secured and little
time is left before the election.  In
such event, the court of first instance should not be hampered by the lack of
such official forms, and may avail, when practicable, of impro­vised forms and
other means such as the voter’s photographs, sig­natures, etc. for their proper
identification.  It is vested with ample
authority to hear the inclusion petition and on the basis of the pro­ceedings
before it — which it is enjoined by law “to hear and decide without
delay” and to render its decision “within six hours after the hearing
and within ten days from the date of its filing or registration in court”^[5]
to issue the corresponding order of inclusion.  The voter upon presentation of a certified
copy of such order and upon proper identification — when such order is issued
after the precinct book of voters has already been closed and sealed — shall
be entitled to vote on election day.^[6]

5.  Petitioners’ submittal on
their second issue, to wit, that a ten-day notice is allegedly required by
section 139 (b) of the Code, even when notice is given, as required by the code
in the first ins­tance, by registered mail or by personal delivery,
is patently against a plain reading of the law.^[7] All
that is obviously required is reasonable notice, to enable the parties affected
to be present on the day set for the hearing. 
By the very terms of the statute, it is only when such mode of notice is
“not practicable,” that notice may be given ”by posting a copy in a
conspicuous place within the municipality, at least ten days prior to the day
set for the hearing.”

ACCORDINGLY, the petition is hereby dis­missed, and
private petitioners are sentenced to pay the costs and expenses of this suit,
which expenses respondent court is directed to assess, together with such costs
and expenses as it may award respondents-voters in the inclusion proceed­ings
below under section 139 (d) of the 1971 Elec­tion Code.  In view of the shortness of the time left
before the November 8, 1971 elections, this decision is declared immediately
executory and respondent court is enjoined to forthwith act on and resolve the
pending inclusion proceedings before it, conformably to paragraphs 3 and 4 hereinabove,
towards the end that no qualified applicant may be deprived of the right of
suffrage.  SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Fernando, Barredo, Villamor, and Makasiar,
JJ., concur.

^[1]
Docketed as Election Cases Nos. 488 to 499, 613 to 617 and 1208 to 1210 of the
Court of First Instance of Rizal.

^[2]
The Court required respondents to answer the petition but expressly authorized
respondent court to continue with the inclusion proceedings before it in view
of their importance and the little time left before elec­tion day, November 8, 1971.  In this manner, the applicants-voters’
petitions for inclusion could be timely heard and resolved by respondent court
pending the Court’s resolution hereof. 
Thus, if the Court dismissed the petition, no time would have been lost
and no prejudice caused, and the applicants ordered included would not be
wrongfully disenfran­chised. 
Contrariwise, the Court would annul any inclusion order issued without
jurisdiction.

^[3]
Emphasis furnished.

^[4]
“If there is no challenge to the applicant’s right to reg­ister, or
if there is one and the board decides in favor of his registration, the application
shall be approved and shall be incorporated into the precinct book of
voters.  x x x”

^[5]
Section 139 (g), R. A. No. 6388.

^[6]
Section 136, R.A. No. 6388, second paragraph.

^[7]
“(b) Notices to the members of the election registra­tion board, board of
inspectors and to the challenged voters shall state the place, date and hour in
which such application shall be heard, and such notice may be made by sending a
copy thereof by registered mail or by personal delivery to them, or by leaving
it in the possession of a person of sufficient discretion in the residence of
the said persons, or, in the event that the foregoing procedure is not
practicable, by posting a copy in a conspicuous place within the municipality,
at least ten days prior to the day set for the hearing.”