Tuesday, 10 July 2007

Comelec rule: set aside tampered CoCs and recanvass using authentic CoCs

Republic of the Philippines
COMMISSION ON ELECTIONS
Intramuros, Manila

SECOND DIVISION


IN THE MATTER OF APPEAL FROM
THE RULINGS OF THE SPECIAL
PROVINCIAL BOARD OF
CANVASSERS OF THE PROVINCE OF
LANAO DEL NORTE


VICENTE F. BELOMONTE
Appellant-Petitioner,

-versus- SPC NO. 07-254
Promulgated:
JUL 10 2007
SPECIAL PROVINCIAL BOARD
OF CANVASSERS OF LANAO DEL
NORTE, ANGELIQUE DAWN
BADELLES and IMELDA Q.
DIMAPORO,
Appellees-Respondents.
X----------------------------X
Per Curism


R E S O L U T I O N


This is perhaps one of the more controversial cases pending with this Commission. Owing to the personalities involved and the issues herein raised, the Commission must proceed with proper caution and examine the facts and issues of this case with a fine toothed comb to arrive at the truth and ensure that the will of the electorate must be protected.

This is an appeal from the rulings of the SPBOC in the three (3) separate Petitions to Exclude the Certificates of Canvass (COC) of use these returns in the canvass votes. The broad power of the Commision to enforce and administer election laws gives it ample authority to direct the board of canvassers to include in the canvass only authentic returns. It is only when the disputed returns concerned will not affect the results of the election that the said returns claimed to be falsified need not be verified and canvass to proceed and proclamation made.16

In Pala Dipatuan vs. Commission on Elections et. al.17 the ruling therein would have square application in this controversy.

“It is evident from the above quuote3d portion [the 1st and 2nd paragraphs of Sec. 15, RA. No. 7166] that the prohibition is not absolute. Such pre-proclamation controversies are allowed (a)when there are manifest errors in the certificate of canvass or in the election returns, as the case maybe, and (b) when the composition of proceedings of the board are questioned. In the instant case may be, and (b) when the composition or proceedings of the board are questioned. In the instant case, there was more than manifest error in the questioned COC for the municipality of Madamba. As ruled by the PBC – and as affirmed in the challenged resolution of the COMELEC en banc and its first division – there was, infact, a substitution of the authentic copy of the COC with the spurious one: the latter, which the petitioner wants to be honored, was ordered excluded in the canvass. As we ruled in Pangarungan (supra), the Commission committed no grave error of dicretion in excluding spurious COC and in directing in excluding the spurious COC and in directing the PBC to prepare a new COC on the basis of the COMELEC copies of the election returns of Madamba” (SC Minutes En Banc, Thursday, December 10, 1992, pp. 19-20. Emphasis supplied.)

WHEREFORE, premises considered, the Commission (Second Division) resolves to GRANT the Petition and the questioned Rulings of the respondent MBC is hereby REVERESED AND SET ASIDE. The questioned COCs are hereby ordered excluded and should not be canvassed.

The Board of Canvassers is hereby directed to RECONVENE here in Manila (for security purposes) and issue a new certificate of canvass of votes excluding the election returns subject of this appeal and substituting the proper entries as are evident in the authentic copies of the COC and from the authentic copies of the election returns related to the subject COCs. The winning candidate who garners the most number of votes in accordance with our observation shall after proper canvass be proclaimed by the Board of Canvassers.

SO ORDERED.



(Sgd.) FLORENTINO A. TUASON, JR.
Presiding Commissioner


(Sgd.) RENE V. SARMIENTO (Sgd.)NICODEMO FERRER
Commissioner Commissioner





CERTIFICATION

I hereby certify that the conclusions in the foregoing resolution were reached in the consultation with the other members of the Commission before the same was assigned to the writer of the opinion for the Commission (Second Division)



(Sgd.)FLORENTINO A. TUASON, JR.
Presiding Commissioner








----------------
16 Agpalo, Comments on the Omnibus Election Code, 2004 ed., p. 408 409. see Pacis vs. Comelec, 22 SCRA 539

17 G.R. No. 107815

Thursday, 5 July 2007

COMMENT: On Wings of Doubt

Written by Patricio P. Diaz / MindaNews
Sunday, 01 July 2007 11 15 25

http://www.mindanews.com/index.php?option=com_content&task=view&id=2770&Itemid=68


GENERAL SANTOS CITY – As June 30 neared, the Commission on Elections was in an acid test. It had to resolve election controversies to pave the way for the smooth transfer of offices from the outgoing to the incoming elective officials. Two such controversies involved the elections in Maguindanao and in the first district of Lanao del Norte.

The critical question: Would it ignore clear indicators of frauds and resolve the two election controversies in favor of pro-administration candidates? It had the power and it could find the justifications to do so; but these would only strengthen -- not dispel -- doubts.



In Maguindanao



Genuine Opposition candidate Aquilino “Koko” Pimentel had petitioned the Supreme Court to stop the Commission from canvassing the highly irregular Maguindanao senatorial votes. But at the hearing on June 28, the Court ruled Pimentel had “no concrete proof that the Maguindanao election documents were irregular” and it did not issue a temporary restraining order.

Justice Cancio Garcia said that Pimentel “was only assuming the documents were tainted with fraud” and that if a TRO was issued on “mere assumption, we are disenfranchising voters from 22 municipalities”.

Justice Adolf Azcu├▒a said the unprecedented Commission’s procedures in gathering documents to support the provincial CoCs without following its usual rules was called for by “an unusual situation”. These were the very same procedures Pimentel had called highly irregular.

Indeed, the Maguindanao situation was unusual. Were the “unprecedented” Comelec procedures justified? Were the integrity of the CoCs and other documents unquestionable?

If so, why did the Court – voting unanimously in denying the issuance of a TRO – not dismiss the entire petition outright? Instead, it ordered “all parties to submit their memoranda within ten days for the main case”.

The order was puzzling. What was it for? The Court ruled fraud had not been proven and it justified the Commission’s actions. The twelfth winning senatorial candidate could have taken his oath by the tenth day should the Commission go ahead with the canvass and proclamation. Any decision on the merit of the petition would be moot and academic.



Just Assumptions



Were the frauds in the Maguindanao election just assumptions? In the first provincial canvass based on the first copies of the municipal CoCs, Zubiri had 133,321 votes, second to Luis “Chavit” Singson’s 136,044 (MindaNews, May 18). In the re-canvass, he topped the TU 12-0 sweep with 195,823 votes (INQUIRER.net, June 29) – his votes increasing by 62,504.

If the CoCs were not concrete proof of fraud, what is fraud? If the two sets of CoCs were copies of the same documents, one set was tampered; otherwise, they were separately fabricated. The documents were concrete; the inference was from concrete evidence.

In the first canvass, no representatives of the candidates, no accredited Comelec watchers and no media members were allowed to witness. In the re-canvass, the lawyers of the opposition were not allowed to question the CoCs or the procedures. This was irregular and not assumed.

A month after the Maguindanao election officials had ignored their order to submit copies of the municipal CoCs to support the questioned provincial CoC, Comelec Chair Benjamin Abalos and two commissioners came and collected from the Maguindanao municipal election officers the “second” and “fourth” copies of the municipal CoCs.

The commissioners assumed these as authentic. Could it not be as rightly assumed that these were fabricated? As observed by GO lawyer Sixto Brillantes, the second copies which were the copies posted outside the precincts did not bear staple or tape marks. This was unusual!



Expected



After the Court had denied Pimentel’s petition for a TRO, the Commission decided to go ahead with the canvassing of the Maguindanao votes. (INQUIRER.net, June 29). As expected, it did. After overruling all motions and questions of the opposition lawyers, the votes were canvassed Friday afternoon, June 29. (INQUIRER.net, June 30)

Contrary to his expectation, Zubiri was still trailing Pimentel, who was hanging precariously by 4,923 votes. With the Maguindanao votes, Zubiri could have led Pimentel by over 18,000 had it not been for Pimentel’s winning margins from the late CoCs from Basilan, Marawi and Lanao del Sur which were canvassed last Thursday (INQUIRER.net, June 29).

Pimentel’s mathematical chance of keeping the twelfth senatorial slot depends on his votes from Barira and 10 precincts in Kabuntalan both in Shariff Kabunsuan and from Bogo in Cebu and Bais in Negros Oriental. Zubiri is sure of landslides in Barira and Kabuntalan. Bogo and Bais have 80,000 voters. Can Pimentel win big there to pad his slim 4,293 vote-margin?

The odds appear even. Neither Pimentel nor Zubiri could join the installation of the earlier proclaimed senators-elect. One of them will, perhaps, next week. Canvassing will resume on Monday.

Should Zubiri win because of Maguindanao, his six-year mandate will be on the wings of doubt like that of President Arroyo. While Zubiri cannot be accused of cheating, being just an eager beneficiary, his victory will ever be tainted by statistical improbability.

A ruling by the Supreme on merit that, indeed, the Maguindanao documents were authentic beyond reasonable doubt could give Zubiri a convenient cover. Denial of a TRO could not do that. The Commission could have waited but it did not. Its own credibility is also on the wings of doubt.



In Lanao del Norte


On Tuesday, June 26, the second division of the Commission received from the Parish Pastoral Council for Responsible Voting and from the Liberal Party their copies for the certificates of canvass for the municipalities of Maigo, Bacolod and Kauswangan as evidence that the CoCs from the three towns used by the provincial board of canvassers had been tampered. (MindaNews, June 26)

The Commission created the Lanao del Norte District 1 controversy when last June 1, it ordered the canvassing of votes from Bacolod, Kauswagan and Maigo in spite of evidence that the boxes containing the certificates of canvass were forcibly opened last May 19 in the capital town of Tubod where the boxes had been deposited.

After the canvassing of the three questioned CoCs, Imelda Quibranza-Dimaporo of Lakas-MCD vaulted to first from poor third – her 17,000 vote-lag behind Vicente “Varf” Belmonte of Genuine Opposition transforming to a 7,000 vote-lead. Not only that! The total number of votes casts for three top candidates increased from 22,285 to 28,017.

While ignoring Belmonte’s protest, the Commission restrained the provincial board of canvassers from declaring a winner – a toothless restriction. The canvass clothed the tampered CoCs with authenticity that gave Dimaporo a legal basis to petition for her proclamation.

As of last June 26, the case was still being heard in Manila. There has been no report of the final result. Did the authentic copies of the CoCs from PPCRV and the Liberal Party convince the Commission of the tampering? And Belmonte’s counsel pointed out that in the tampered Kauswagan CoC, “the padded figures for Dimaporo exceeded the total number of voters” in the municipality. (MindaNews, June 26).

Who did the Commission eventually proclaim as the elected representative of Lanao del Norte District 1? If Dimaporo, her three-year mandate will also float on the wings of doubt. Doubly so will the credibility of the Commission. ("Comment" is Mr. Patricio P. Diaz' column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a "Lifetime Achievement Award" for his "commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.")