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Proclamation questioned

Comelec move not valid, says election lawyer

The six senators whom the Commission on Elections (Comelec) proclaimed on Thursday the top winners of the May 13 senatorial race should return their certificates as their proclamation was invalid, according to a prominent election lawyer.

Lawyer Romulo Macalintal said the proclamation of Grace Poe, Loren Legarda, Alan Peter Cayetano, Chiz Escudero, Nancy Binay and Sonny Angara was defective because the Comelec did not state the number of votes they obtained nor did it say how they ranked in the tally.

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The six were proclaimed with only 72 of the 304 certificates of canvass officially tabulated by the national board of canvassers (NBOC) at the Philippine International Convention Center. The 72 COCs represent just a little more than 13 million votes out of the country’s 52 million registered voters.

Macalintal said the Supreme Court ruled in 1968 that an incomplete canvass “is illegal and cannot be the basis of subsequent proclamation” and ordered the Comelec to “count all the votes cast and consider all the returns.”

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Under its own rules, the Comelec does not have the authority to make a partial proclamation as the rules provide for a “completion of canvass” as the basis of a proclamation,” he said.

Macalintal said the Supreme Court also said the Comelec “has no power to decide questions involving the right to vote because to do so is in effect to deny the voters their votes.”

“Without including the votes in the proclamation is disrespectful of the returns and in effect disenfranchise the voters. Expediency cannot also be the reason to make a hasty proclamation,” he said.

Macalintal urged the six proclaimed winners to return their certificates of proclamation as doing so would show the importance that they “put on the democratic process and how much they value every vote cast for them.”

 

Trying to save face

After being criticized for the painfully slow count (for an automated election), the Comelec went ahead and proclaimed the first six winners last Thursday, three days after the elections, only to meet more criticism for the “premature,” if not illegal,  proclamation.

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Macalintal surmised that the Comelec (which acts as the national board of canvassers) decided on  the partial proclamation to “comply with their promise to make a proclamation today (Thursday).”

“They made assurances that the Comelec would make a proclamation two days after the elections. When they were not able to do it, perhaps, to save face this is what they did,” he said.

Macalintal said the partial proclamation was a “bad precedent” because it paves the way for local boards of canvassers to proclaim winners “based on their discretion on who is the winning candidate.”

“What is now the remedy of the aggrieved party? What will be the basis of the aggrieved party who would want to file an election protest, he or she would not know the (vote difference) between him or her and the proclaimed candidate,” he said.

He noted that the Comelec has enough time to wait for the uncanvassed COCs (certificates of canvass) as there are still 45 days remaining before the June 30 statutory date for the winning senatorial candidates to assume office.

Lawyers getting dizzy

Navotas Rep. Toby Tiangco, the secretary general of the United Nationalist Alliance, said the early proclamation would set a “bad precedent.”

He noted that the Comelec did not say how many votes the winning candidates actually got. There was also no mention of their actual ranking, he said.

“What if they do this again in 2016? We would have a new president without knowing how many votes he got and just because the Comelec said he won,” he said in a separate interview.

Asked about UNA’s next move, he said: “Our lawyers are getting dizzy.”

Tiangco cited his own experience when he had to wait for another six hours before he was finally proclaimed, all because the Comelec waited for the last remaining COCs.

‘Simply wrong’

Even a teammate in the administration coalition of five of the six proclaimed winners has questioned the propriety of their proclamation, calling the Comelec’s move “premature” and “wrong.”

“Proclaim winners at the six-million-vote level? With still 30 million votes uncanvassed? Where is the logic in the early partial proclamation? Why rush?” reelectionist Sen. Aquilino Pimentel III tweeted.

“This is simply wrong!” he said.

He said that while there was no doubt that the six proclaimed senators-elect have already secured their Senate seats, the NBOC  should act strictly “in accordance with the law and procedure.”

“The rule is partial proclamation should only be done if the total uncanvassed votes would theoretically no longer affect the results,” said Pimentel who placed 8th in the continuing tally.

“That is the rule based on logic, common sense and fairness,” he said.

According to Macalintal, if his old colleague, Comelec Chair Sixto Brillates Jr., were still lawyering for a candidate in an election, he would be the first to oppose the partial proclamation.

“He will not allow that to happen. I am sure if Chairman Brillantes were still a practicing lawyer, he will be the very first one to stand in front of the board of canvassers to object to this kind of proclamation,” he said.

Brillantes was one of the most sought-after election lawyers in the country before he was appointed Comelec chair in 2010. His clients included President Aquino, the late movie actor Fernando Poe Jr. and Legarda when they were candidates in hotly contested elections.

But the Comelec chair remained unrepentant, threatening yet again to resign if the courts overturn the Comelec’s decision to proceed with the proclamation and challenging the poll body’s critics.

“What is Macalintal saying, this really expert election lawyer?” Brillantes said with some asperity.

“Maybe lawyer Macalintal has a client who has not yet been proclaimed, that’s why he’s saying these things. In my case, if my client is not being proclaimed, I also say the wrong things,” he said.

Macalintal is representing reelectionist Sen. Gringo Honasan, who is hanging on to the 12th spot.

As of yesterday, Honasan was leading Richard Gordon by 300,000 votes in the Comelec’s official count.

Brillantes insisted that the proclamation last Thursday was legal and challenged Macalintal to prove his claim that it was null and void in any court.

“He keeps on saying it’s invalid but he does not know what is happening… prove to me in any of the courts that the six will not make it to the 12. I will fight that,” he said.

“I will resign if (a court) anywhere (removes) the six from the (Magic) 12,” he added.

He said he was “1,000 percent sure” that Senators-elect Poe, Escudero, Cayetano, Binay, Angara and Legarda would no longer be dislodged from the top six places, even as there were still national votes being canvassed.

Brillantes urged Macalintal to first read the Comelec resolution, which was the basis of the proclamation, before assailing it.

“The best way is to look at the resolution to explain (the proclamation). Read the resolution,” he said.

“This was the reason that there was no ranking among the six senators-elect because their votes would no longer be affected (by the other COCs to be canvassed),” he said.

Grouped canvass reports

He explained that  the proclamation was based on the “grouped canvass reports,” which were produced by the canvassing and consolidation system (CCS) of the different provincial and city boards of canvassers.

The NBOC’s tally of the senatorial election results had been delayed because not all provincial and city boards of canvassers were able to submit their COCs after some municipalities or precincts under them also failed to submit their own election results.

To get around this impasse at the provincial and city level, the Comelec ordered the latter’s election boards to submit their “grouped canvass reports” so that it could have an idea of the number of votes that have already been reported to them and to make a projection of the partial results.

The Comelec yesterday released Resolution No. 9706, dated May 16, which allowed the use of validated grouped canvass reports for the proclamation of the winners in the senatorial race.

It said the NBOC should also make available to the lawyers of candidates the number of votes that each senatorial candidate obtained as reflected in the grouped canvass reports.

“You can make a projection. Why? (The six) cannot be adversely affected anymore. You can proclaim even if it’s not yet official. You can proclaim even if it’s incomplete because they will not be affected,” Brillantes said.

 First posted 12:29 am | Saturday, May 18th, 2013

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TAGS: 2013 elections, Commission on Elections, Election Highlights, National Board of Canvassers, NBOC, Philippine Senate
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