Post by 9th on Jan 20, 2010 19:04:53 GMT 8
Republic of the Philippines
SUPREME COURT
Manila
ATTY. REYNANTE B. ORCEO,
Petitioner;
– vs – S.P. CIVIL CASE NO. ____________
FOR: Certiorari and Prohibition
COMMISSION ON ELECTIONS,
Respondent;
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
P E T I T I O N
PETITIONER, by himself, to the Honorable Supreme Court, respectfully states:
PREFATORY STATEMENT
This is an original action filed pursuant to Rule 65, 1997 New Rules of Civil Procedure. The matter involved is the constitutionality and validity of Resolution No. 8714 dated December 16, 2009 promulgated by the Commission on Elections (COMELEC) in the exercise of its rule making function including in the definition of Firearm toy gun known as Airsoft Guns and their replica/imitation.
The COMELEC in including Airsoft Guns and their replica/imitation in the definition of firearm had gravely abuse its discretion amounting to lack or excess of jurisdiction for there is nothing in Republic Act No. 7166 or An Act
Providing for Synchronized National and Local Elections and for Electoral Reforms that embraced the term Airsoft Guns and their replica/imitation.
It is the intendment of the law that the firearm contemplated in R.A. No. 7166 refers to real firearm that is known in its common and ordinary usage.
THE LAW
8. On November 26, 1991, Republic Act No. 7166 otherwise known as an act providing for synchronized national and local elections and for electoral reforms was approved.
8.1. Section 32 paragraph 1 thereof provides the following provision:
“Who May Bear Firearms. - During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period”
9. To implement the aforementioned law, the COMELEC promulgate on December 16, 2009 Resolution No. 8714 entitled, to wit:
“Rules and Regulations on the: (1) Bearing, carrying or transporting of firearms or other deadly weapons; and (2) employment, availment or engagement of the services of security personnel or bodyguards, during the election period for the May 10 ,2010 National and Local elections.”
9.1. Section 2 (b) of the said resolution defined firearm as follows:
“Firearm shall refer to the “Firearm” as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real”
– Emphasize supplied. Resolution No. 8714 dated December 16, 2009 is herein attached as Annex “A” and made an integral part hereof.
10. On December 18, 2009, Resolution No. 8714 was published in the Philippine Daily Inquirer and the Manila Times.
GROUNDS RELIED UPON IN SUPPORT OF THE PETITION
THE COMELEC IN ISSUING RESOLUTION NO. 8714 DATED DECEMBER 16, 2009 COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION INSOFAR AS INCLUDING AIRSOFT GUNS AND THEIR REPLICA/IMITATIONIN THE TERM FIREARM.
DISCUSSIONS
Petitioner is a real party in interest
Petitioner as member of the Philippine Bar has the responsibility to uphold and defend the Constitution as embodied in the Code of Professional Responsibility.
More importantly, petitioner is playing the sport of airsoft since the year 2000 and playing the game regularly every Sunday or upon invitation with the rest of the other members or when his work schedule permits him to do so. The continuing implementation of the subject resolution will put petitioner in immediate and imminent danger of sustaining direct injury if caught in possession of airsoft gun and their replica/imitationin going to and from the game site and playing the sport for such act petitioner will be subjected to a penalty of imprisonment of not less than one year but not more than six years and shall not be subject to probation with disqualification to hold public office and deprivation of the right of suffrage.
At issue herein is the constitutionality and legality of Resolution No. 8714 issued by the COMELEC in the exercise of its rule making power that is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction that calls for the exercised by the court of its power of judicial review.
COMELEC’S Grave abuse of discretion
As stated, there is no law at present that covers airsoft guns. Though, several bills are now pending in the 14th Congress that defines and governs the use of airsoft guns but nothing in these pending bills classified airsoft guns and their replica/imitationto mean as firearm.
Among the pending bills are as follows:
a. SB No. 655 - introduced by Senator Jinggoy Estrada entitled “an act prohibiting the manufacture and sale of imitation firearms”
Abstract – permanently affixed, a blaze orange plug inserted in the barrel of such toy, look-alike or imitation firearm.
b. HB No. 5449 – introduced by Rep. Rufus B. Rodriguez entitled “an act regulating the importation, manufacture, sale, use and transport of airsoft rifles/pistols and for other purposes”
Abstract: seeks to limit the registration of airsoft rifle/pistol to those not exceeding 550 feet per second velocity using .20 gram plastic pellets.
c. HB No. 2916 – introduced by Rep. Rufino B. Biazon entitled “an act repealing Letter of Instructions No. 1264 of President Ferdinand E. Marcos signed on July 31, 1982 banning the importation, manufacture, distribution, sale and display of certain types of toy firearms and explosives”
Abstract – the bill seeks the repeal of LOI 1264 which banned the importation, manufacture, distribution, sale and display of toy firearms and explosives.
Republic Act No. 7166 was enacted during the 8th Congress. It came from House Bill No. 34811 and Senate Bill No. 1861. The committee report on both bills did not include what is now Section 32 of RA No. 7166.
Due to the conflicting versions of the two bills, a bicameral committee conference was held to resolve the conflicts. As a result, a bicameral committee report (BICAM) was approved.
In the House deliberations of the BICAM, no interpellations or deliberations were made insofar as the provision on carrying of firearm is concerned. However, in the Senate the same provision was a subject of interpellations, to wit:
“Senator Guingona. Yes, Mr. President. The question is: If the members of the military or the PNP are not deputized for electoral duties, can they carry firearms, in accordance with the performance of their duties, outside of electoral duties?
Senator Gonzales. Mr. President, we have paragraph (q) of Section 261, Prohibited Acts, and it says:
(q) Carrying firearms outside residence or place of business.
And it applies to any person who, although possessing permits to carry firearms, carries any firearm outside his residence or place of business during the election period unless authorized in writing by the Commission.
Senator Guingona. So, that is absolute.
Senator Gonzales. There is absolute prohibition, Mr. President”
– Record of the Senate, page 555, Tuesday, November 19, 1991.
From the foregoing deliberations, the firearm contemplated by R.A. No. 7166 refer to its ordinary usage to mean real firearm as distinguished from toy gun, replica/imitationor airsoft guns.
As explained by Senator Gonzales, when an unauthorized person is caught carrying a firearm during the election period he will be charged for Prohibited Acts an offense punishable under the Omnibus Election Code[1] that carries a penalty of imprisonment of not less than one year but not more than six years and shall not be subject to probation with disqualification to hold public office and deprivation of the right of suffrage[2].
Such being the case, the inclusion of airsoft guns and their replica/imitationin the subject resolution will now make the possessor thereof criminally liable – a situation not contemplated by B.P. No. 881 and R.A. No. 7166.
As defined under existing laws on Firearms, R.A. No. 8294 approved on June 6, 1997 or an act amending the provisions of P.D. No. 1866, as amended, entitled codifying the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or disposition of firearms – airsoft gun and their replica/imitationis not among those included and classified as such.
R.A. No. 8294 classified low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower and high powered firearm that includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three.
Thus, the COMELEC in issuing the subject resolution have made a new law on firearm or have amended the law on firearm – an act beyond its power and authority.
Resolution No. 8714 is not in accordance with State Policies
The 1987 Constitution provides the following provisions, to wit:
“The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. X X X X”
– Article II, Section 12, 1987 Constitution.
“The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development”
– Article XV, Section 1, 1987 Constitution.
“The State shall give priority to X X X X sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.
– Article II, Section 17, 1987 Constitution.
Guided by these constitutional precepts, the COMELEC in the exercised of its rule making power must conform to these policies and in the law it is sought to enforce. Its act must be within the scope and consistent with the law it seeks to apply and implement and not even the temporary prohibition of possessing airsoft gun and their replica/imitation during the election period will justify the COMELEC for issuing the subject resolution for there is no law that authorizes COMELEC to do so.
An Airsoft gun is an essential component to play the sport without which playing airsoft is nothing. The use of airsoft gun necessarily includes the transport and possession thereof in going to and from the game site.
In including airsoft gun within the meaning of firearm, the subject resolution in effect criminalizes the sport and playing the game make it irrelevant if one’s possession of airsoft gun and their replica/imitation is now covered by prohibited acts notwithstanding that there is still no law that governs the use thereof.
Equally enshrined under the constitution is the protection and strengthening of the family as a basic autonomous social institution. Playing airsoft has become a bonding moments amongst families. Petitioner is playing airsoft with his brother and nephews, sons played with their father, husband with his wife, and brother with his brother.
As a basic foundation of the nation and as declared under The Universal Declaration of Human Rights, families are entitled to protection by society and the State[3]. They are free to choose and enjoy their recreational activities. They are free to enjoy it among themselves or in the company of others. They could prefer going to malls, watch movies, dine together or enjoy playing the same sport.
These liberties cannot be abridged by the COMELEC that do not even have the authority and power to make, expand and amend existing laws. In the same token, the subject resolution now criminalizes even the bonding of families who prefer playing together the sport of airsoft.
PRAYER
WHEREFORE, it is respectfully prayed to the Honorable Supreme Court that judgment be rendered as follows:
1. Annulling Resolution No. 8714 dated December 16, 2009 insofar as including airsoft gun and their replica/imitationwi thin the meaning of firearm and declaring it as unconstitutional and invalid.
2. Commanding the Commission on Elections to desist from further implementing Resolution No. 8714 dated December 16, 2009 insofar as airsoft gun and their replica/imitationis concerned.
3. Commanding the Commission on Elections to amend Resolution No. 8714 dated December 16, 2009 by removing airsoft gun and their replica/imitationwi thin the meaning of firearm.
4. Commanding the Commission on Elections to issue resolution ordering the Armed Forces of the Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC to desist from further enforcing Resolution No. 8714 dated December 16, 2009 insofar as airsoft gun and their replica/imitationis concerned.
Other reliefs just and equitable under the premises are likewise prayed for.
Quezon City for the City of Manila. January 12, 2010.
