46 days after E-Day: Maguindanao vote battle back to Comelec

With the Supreme Court's denial of the petition to stop the Maguindanao vote re-canvassing,, the legal battle now shifted to the Comelec, which is poised to pursue the counting of votes from the controversial province and proclaim the winner for the 12th slot in the senatorial race. Chief Justice Reynato Puno directed the parties to submit their respective memoranda discussing the merits of the case within 10 days. Respondent Juan Miguel Zubiri welcomed the decision of the high court, saying it showed that "democracy still prevails." Initial tallies by the special provincial board of canvassers showed Zubiri dislodging Pimentel from the 12th slot in the senatorial race after getting more than 150,000 votes from 16 of the 22 towns of the province. During the oral arguments Thursday, Aquilino “Koko" Pimentel III failed to convince magistrates that there was a necessity to stop the re-canvass and inclusion of Maguindanao votes on a mere assumption of an irregularity. Pimentel, who argued his own case, said that if the Comelec will include spurious and highly questionable election documents from Maguindanao in the re-canvass, it would cause irreparable injury to him and some 10 million people who voted for him. He said the Maguindanao votes were highly irregular because these were generated by the Comelec through irregular means. "These documents may be written on Comelec paper but the integrity, validity and the custody chain are questionable and untrustworthy under irregular circumstances," he said. However, Pimentel admitted that he has no concrete evidence that will prove that the election documents generated from Maguindanao have been tampered with. But justices questioned Pimentel's argument to have the election results from the province of Maguindanao be excluded in the national canvassing for the senatorial race due to massive fraud. Associate Justice Cancio Garcia pointed out that if the Court will grant the petition, it could mean the disenfranchisement of more than 200,000 Maguindanao voters on the basis of a mere assumption of fraudulent municipal certificates of canvass (MCOCs). Garcia also brushed aside the petitioner’s argument that the MCOCs could have been fabricated since the Comelec did not follow its established procedures in canvassing of votes. "You're imputing irregularity on the documents not on its face but on the manner these documents were generated. You have no proof whatsoever that the documents were themselves irregular, tampered or doctored," Garcia said. Garcia suggested that the Comelec be allowed to finish the canvassing of Maguindao of votes since the loser still has another remedy of questioning the authenticity of the ballots before the Senatorial Electoral Tribunal (SET). He noted that if the Court would grant Pimentel's petition to exclude the votes from Maguindanao it would be tantamount to a violation of the people's right of suffrage. Associate Justice Antonio Carpio also reiterated the need to include the votes of Maguindanao in the national canvassing based on Pimentel's admission that an election took place and that the Comelec had already proclaimed the winning local officials in the province. For her part, Associate Justice Minita Chico-Nazario pointed out that the Court has no jurisdiction over his claim of "statistical improbability" involving the result of the re-canvassing where 18 out of the 37 senatorial candidates received no vote in Maguindanao, the high tribunal not being a trier of facts. In a 26-page Comment submitted by the Comelec prior to the oral arguments, the poll body asked the high court to dismiss the petition to exclude the province of Maguindanao from the canvass of votes for senators and to proclaim the last remaining senator on the basis of the canvass of the election results from all the provinces/cities of the country, excluding Maguindanao. Lawyer Alioden Dalaig said the Comelec did not exceed its jurisdiction or acted with grave abuse of discretion when it initiated proceedings preparatory to the declaration of failure of elections in Maguindanao. Dalaig said that although the Omnibus Election Code requires a verified petition for an interested party to initiate an action for the declaration of a failure of elections, it does not prohibit the Comelec from initiating such proceedings on its own. "The law merely set out the parameters for interested parties. It is not intended to curtail the powers of Comelec conferred by law and by the Constitution," he said. He further said that it did not abuse its discretion when it created Task Force Maguindanao to determine the true choice of the voters by examining the alleged accountable documents. The poll body stated that the re-canvassing of votes for senators from Maguindanao had just been concluded by the Special Provincial Board of Canvassers created by the Comelec. "Thus, petitioner's action in filing the petition which mainly seeks to exclude results of the election for senators in Maguindanao because of the alleged statistical improbability thereof is improper and premature, to say the least," the Comelec said. Respondent commission claimed, however, that this cannot be done based on a general allegation of statistical improbability. "Such allegation must be substantiated by adequate proofs in an appropriate case and before the proper forum. The present petition for certiorari and prohibition is not the appropriate vehicle to ventilate such claim. In the ordinary course of law, statistical improbabilities are proper grounds for pre-proclamation cases. Since such is not allowed before the NBC, the matter should be raised in an election protest before the SET. - GMANews.TV