Premature, imprudent and illegal

With due respect to the Commission on Elections, I find no legal and factual basis for the proclamation in installment of six senatorial candidates (Grace Poe, Loren Legarda, Alan Peter Cayetano, Chiz Escudero, Nancy Binay and Sonny Angara) on May 16, and another three (Bam Aquino, Koko Pimentel and Sonny Trillanes) on the next day, May 17.

Rule and exception. The Comelec was reported to be trying to finish the official canvass at a late hour on the third day, yesterday, May 18 (past my deadline for this column), or today, and to proclaim the last three winners (Cynthia Villar, JV Ejercito and possibly Gringo Honasan). This final canvass may moot the prematurity of the two earlier proclamations, but it will not lessen their baselessness and illegality at their inception.

It merely raises new questions: No one was chasing the Comelec, why the indecent haste? Why rush to proclaim without legal or factual basis? Why not wait for two days, just two days, and then proclaim all 12 legally and unquestionably?

Let us dig deeper. The entrenched legal and commonsensical rule is that winners can be proclaimed only after all ballots have been officially canvassed. The exception to this rule is when the leading candidate(s) posts an insurmountable lead, that is, when the remaining uncanvassed ballots will not adversely affect the results.

The Comelec meticulously and correctly invoked this rule and exception when it instructed the provincial and city boards of canvassers to proclaim the local winners. It should apply the same standard to its own proclamations.

To understand the exception, imagine that a total of 50 million ballots were cast in an election, of which 90 percent or 45 million were canvassed. Imagine further that each of the first nine senatorial candidates obtained more than 20 million votes while each of the other candidates had less than 15 million.

Here, even if the remaining 10 percent (or 5 million) uncanvassed votes were added to each of the other candidates, none of them could overtake the nine. In these imagined facts, the exception applies and the first nine may be proclaimed.

Look now at the real facts. When the six candidates were proclaimed on May 16, the official canvass of the Comelec covered only 72 out of the 304 certificates of canvass (COCs).

These 72 COCs represented just a little more than 13 million of the country’s 52 million registered voters. Definitely, then, the unreported votes are several times more than the canvassed votes. Even if only 70 percent of the registered voters actually voted, still the uncanvassed ballots will easily swamp the canvassed ones. Hence, the exception cannot apply.

Belatedly, the Comelec alleges that its two earlier proclamations are justified by so-called “group canvass reports.” In my long years as a lawyer, this is my first time to hear of these electoral instruments. In any event, law and settled jurisprudence require official COCs, not any other documents, as bases of senatorial proclamations.

If the Comelec wants to change its rules of proclamation even at the risk of offending jurisprudence, it is required by law to first publish its new rules and wait for the mandatory lapse of seven days after publication before it can use the new rules.

Legal enigma. Clearly, then, the first two proclamations were premature and illegal. Worse, if the final canvass did not confirm their victory, not even the Comelec or the Supreme Court could unseat them. Because once proclamation is made, “the sole judge,” says the Constitution, “of all contests relating to the election, returns and qualifications” of senators is the Senate Electoral Tribunal (SET) composed of six senators and three Supreme Court justices.

The SET can act only after the Senate is convened in late July. By that time, the nine would be sitting in the Senate. On the other hand, not all those who obtained enough votes can sit because the Senate has only 24 members. Then, the country would be faced with an undeserved legal enigma.

At this point, I hope readers realize that the prematurity and illegality of the two earlier proclamations, unless upheld and cured by the final canvass, could bring unwarranted and unnecessary legal consequences. Baseless and premature proclamations should never be repeated, especially during the presidential election in 2016. Otherwise, they could destabilize and bring unintended consequences on our democracy.

Shining moment. If and when the proclamation of the nine is confirmed by the final canvass, I believe they should be given new certificates of proclamation, containing the legal justification for their victory—namely, the correct number of votes and rank they garnered to avoid giving them the dubious distinction of being the only senators in our country’s history with premature, imprudent and illegal proclamations.

I cannot close this piece without applauding the courage and wisdom of Nancy Binay and Koko Pimentel in refusing to participate in the tainted proclamation rites. Pimentel labeled the proclamation rites as improper, arguing that candidates should not only win the elections fairly but also strictly observe the law.

Kudos also to Romulo Macalintal for calling public attention to this legal impasse and for asking the proclaimed senators to “return or surrender their certificates of proclamation … as a shining moment… of the democratic process.” And I dare say that Macalintal’s exemplary advocacy is his own shining moment for the rule of law and democracy.

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