Proclamation of six senators null and void, says poll lawyer

MANILA, Philippines - An election lawyer yesterday said last Thursday’s proclamation of the top six senatorial candidates was “null and void.”

Romulo Macalintal said the Commission on Elections (Comelec), sitting as the National Board of Canvassers (NBOC), had yet to complete the canvassing of votes before proclaiming the winners.

Macalintal urged Senators-elect Grace Poe, Loren Legarda, Alan Peter Cayetano, Francis Escudero, Nancy Binay, and Juan Edgardo Angara to return the Certificate of Proclamation (COP) given to them by the NBOC since “it is not a valid proclamation.”

“Such proclamation is defective because it does not contain the number of votes obtained by the alleged winners and no ranking was made but merely based on alphabetical order,” he said.

Under Comelec rules, Macalintal said NBOC does not have the authority to make a partial proclamation since the rules provide for a “completion of canvass.”

Poll watchdog National Citizens’ Movement for Free Elections (Namfrel) also said the proclamation by Comelec of the six winning senatorial candidates was premature, considering that there was still about 24 percent of unaccounted for and uncounted election returns (ERs).

Namfrel secretary-general Eric Alvia said Comelec should have counted a clear majority of the actual votes cast, or about 50 percent plus one percent of the actual votes cast, before proclaiming the winning senators.

He said Comelec had proclaimed winning senators based on the tabulation of about 76 percent of the ERs, and it was not clear if these ERs covered a majority of the actual votes cast in last Monday’s midterm elections.

Alvia said the Comelec has not been able to provide data on the number of actual votes cast, so far only providing the figure of total number of registered voters which they said was around 52 million.

“Puro estimates lahat (They were all based on estimates),” Alvia told The STAR.

Alvia said Namfrel was only making assumptions on the number of actual votes cast, based on the 65 to 70 percent estimate of the Comelec.

“Sixty five percent is the assumption,” he said.

Alvia said 65 percent voter turnout out of 52 million registered voters would translate to estimated 33 to 34 million who voted last Monday.

Macalintal, on the other hand, said Binay should be appreciated for knowing the law and giving respect to the voters by not accepting her COP, as she would rather wait for the final tally and proclamation of the 12 winning senatorial candidates.

“Thus, it will be the shining moment in the political career of the ‘proclaimed’ candidates if they will return or surrender the said COP to the Comelec since it is not a valid proclamation,” he said.

Citing a 1968 ruling of the Supreme Court in Mutuc vs. Comelec, Macalintal said an incomplete canvass is illegal and cannot be the basis of subsequent proclamation, thus mandating the Comelec to “count all the votes cast and consider all the returns.”

“Without including the votes in the proclamation is disrespectful of the returns and in effect to disenfranchise the voters,” he said.

“Expediency cannot also be the reason to make a hasty proclamation,” Macalintal added.

Macalintal said the Comelec has ample time to await the uncanvassed Certificates of Canvass (COCs) since there are still 45 days remaining before the June 30 statutory date for the winning senatorial candidates to assume office.

Comelec chairman Sixto Brillantes Jr. challenged Macalintal and critics to question the proclamation of the top six winning senators in court.

Comelec suspended the publication of election results from its transparency server once the poll body, sitting as NBOC, started the official canvassing.

 The suspension was meant to avoid confusion on the release of unofficial results. The transparency server is connected to the media and citizen’s arm groups.

Poll watchdog Kontra Daya, however, criticized Comelec for stopping the release of unofficial results from their transparency server.

Kontra Daya convenor Fr. Joe Dizon said the order had just removed the last pretense of transparency in last Monday’s elections.

Dizon added the precinct count optical scan (PCOS) machines “did not work as expected” in the elections.

“The PCOS machine supposedly transmits data to the transparency server after it sends its data to the canvassing server for third parties to verify the results of the election. As of noon of May 16, only around 76.13 percent of the election returns have reported their data,” he added.

Dizon said Comelec cannot simply lay the blame on the telecommunication firms for the slow transmission of election results.

“The Comelec should have tested the whole system end-to-end and ensured that the machines, CF cards, ballots and procedures work out on election day,” he added.

 Asked to comment on the Comelec’s handling of the May 13 polls, Alvia said Namfrel could not make a fair assessment with the absence of so much data and information, especially regarding the issues on the slow transmission of results.

“We can’t isolate if it’s really a telco problem, if it’s really a hardware problem, it’s probably the modem or the (PCOS) machines,” he said.

“We will see based on the data. It’s too early to say. It’s too early to make judgements,” Alvia said.

 However, the high number of manually uploaded or transmitted ERs was a major concern considering that the election was supposed to be an automated one, Alvia added. – With Rainier Allan Ronda, Sheila Crisostomo