The Commission on Elections remains at a loss on how to tackle the Maguindanao vote. All the options laid out on the table so far could expose the poll body to future legal questions.

Whichever way the poll body decides, the issue is bound to reach the Supreme Court, election lawyers told Newsbreak.

Comelec chairman Benjamin Abalos, faced with this embarrassment, appears to be buying time to arrive at a resolution to the problem. He has called for another hearing on Friday, June 15.

But if the memo “In the matter of declaring failure of elections in Maguindanao” that the Commission en Banc issued on June 6, 2007 and the way some of the commissioners asked questions during Monday’s hearings are to be considered, it would appear that they are inclined towards declaring a failure of elections for the entire province.

The June 6 memo noted that that there appeared to be “not a single election document that would prove that elections were held in Maguindanao.”

During Monday’s hearing, Abalos went so far as to state that there was no record as well that proclamations were made at the local level.

The opposition has said it will raise the issue to the Supreme Court if the Comelec decides in favor of declaring failure of elections due to fears that further electoral fraud will eliminate its lead.

Unique Case

If the Comelec follows the Genuine Opposition’s (GO) call to exclude the certificate of canvass for the entire province of Maguindanao, it could face suits over “massive disenfranchisement of voters” in the area.

“A legal question may be brought to the Supreme Court later over this matter,” a Comelec lawyer said. This can happen especially if a candidate is adversely affected by the decision.

There has never been a case in the past when the certificate of canvass for an entire province has been excluded from the canvassing of votes at the national level, veteran election lawyers say. There had been cases in the past when election returns have been excluded from the canvass of votes for local officials but nothing of this magnitude.

But the other options left for the poll body are also fraught with legal loopholes.

Partial Failure?

If the Comelec declares a failure of election in the entire province of Maguindanao, as Comelec Chairman Benjamin Abalos earlier announced, it will be tantamount to voiding the victory of local candidates in the area who have already been proclaimed. Among them is former public works secretary Simeon Datumanong, Team Unity’s bet for the province’s lone district.

Under election law, the Comelec loses jurisdiction over any contest for seats in the House of Representatives after a winner has been proclaimed. Thereafter, protest cases must then be brought to the House of Representatives Electoral Tribunal.

Yet another option for the commissioners is to take up the argument of Team Unity (TU) lawyer Romulo Macalintal. Macalintal has argued that excluding the entire provincial board of canvassers’ copy for senatorial candidates because it is tainted with fraud is tantamount to saying that no votes have been cast as far as the senatorial candidates are concerned.

Macalintal said it is possible that there was failure of elections only for the senatorial candidates. “The question is: was a senator elected in the canvass of votes for the province of Maguindanao?”

But even Macalintal’s argument has holes, the Comelec lawyer told Newsbreak. “You cannot declare failure of elections only for the senatorial race. If you declare failure of elections, that affects all (elective positions).”

The issue is bound to reach the Supreme Court whatever the Comelec does, election lawyer Leila De Lima said in an interview.

Even now, De Lima said, concerned parties could already go to the Supreme Court to question the Comelec’s authority to hold the hearings concerning a possible declaration of failure of elections on grounds that no verified petition for such declaration was filed before the Commission. During Monday’s hearing, De Lima argued before the Comelec that the Commission has no authority to conduct the hearing.

But raising the main issues before the high court at this point may be risky, De Lima said, because the Commission has yet to decide on the matter. “Right now, what they are saying is that they are investigating it.” The high court may dismiss the petition on this ground.

In a phone interview, Commissioner Rene Sarmiento told Newsbreak that they are still studying the matter very carefully. “We have to listen to the local officials first.”

No Contest

Except for a few towns, there was practically no contest at the local level in most of Maguindanao’s 22 municipalities. Apart from Datumanong, the entire slate of Maguindanao Governor Andal Ampatuan, and those of 20 Maguindanao mayors all ran unopposed in the May 14 elections.

Results of the elections in the area became controversial, however, when the province delivered a 12-0 sweep in favor of the administration’s Team Unity, with some GO candidates receiving zero votes in many towns.

The Comelec earlier set aside the certificate of canvass or COC for the province and summoned election officers in the area, including controversial election supervisor Lintang Bedol, to justify the election results following petitions from GO lawyers to have the COC excluded from the national canvass.

Bedol appeared once before the Commision but failed to produce election paraphernalia for Maguindanao province. He attended the Comelec hearing Monday but told reporters that the election paraphernalia were stolen from his office at the provincial capitol of Shariff Aguak.

With 212,795 registered voters, Maguindanao can still affect the outcome of the senatorial race. In the Comelec’s latest tally, (June 6, 2007, 3:00 PM), Team Unity candidate Miguel Zubiri trails behind Genuine Opposition’s Koko Pimentel by only 114,014 votes.

In the uncanvassed COC for Maguindanao, Zubiri reportedly leads over Pimentel by about 129,000 votes.

In a DZMM interview, Pimentel asserted however that even if the current Maguindanao COC is canvassed, he will still win over Zubiri. Without the Maguindanao vote, Pimentel explained, his lead over Zubiri is already 140,000. This means the current Maguindanao COC will trim his lead down to a measly 10,000 votes.

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