Grave abuse

The Comelec is supposed to ensure “free, orderly, honest, peaceful, credible and informed elections” (Section 1, R.A. 9369). Its function in this regard could have been achieved had it strictly followed the Automated Election Law (AES Law, RA 9369 amending RA 8436, RA 7166, and other related Election laws). But as repeatedly pointed out here and in many other public discussions, the Comelec has not strictly observed the law. It is getting clearer and clearer now that it is more concerned about fast tracking the election results than ensuring the credibility, honesty and orderliness in the process of obtaining those results because, as days and weeks pass, more and more irregularities and illegalities are coming out.

Only last Tuesday or two weeks after the election, the Comelec Chief himself openly admitted and confirmed that there were discrepancies in the random manual audit (RMA) when compared with the electronic results of the May 13 elections, and “these are now being segregated already to determine which have and don’t have issues.” He said that the RMA teams (RMAT) that conducted the audit after voting hours detected the discrepancies and that they will come out with a full report after the Commissioner in charge of the RMA has completed his validation of the discrepancies. Brillantes said the variances could be due to the “difference in the manual appreciation of the votes since there is a 20 percent shading threshold for the PCOS machine”.

Even the Chairperson of the Random Manual Audit Committee, Ms. Henrietta de Villa admitted there were discrepancies (“variances”) found among the 180 RMA results already forwarded to the Committee but they are not official yet since they have to be validated first. But she said that they “cannot say at this point whether they were mostly clerical errors,” because they might “possibly include those that were overlooked by the RMAT”. So she said that before officially concluding there were discrepancies, the auditing of manual tallies should be completed first. De Villa said they hope to submit the complete RMA report to the Comelec on or before June 22 where all those issues will be opened, verified for variances and submitted for revalidation.

These admissions and revelations are alarming and dangerous indeed whether or not the discrepancies or variances are minor or clerical. The AES Law (Section 29) and the Comelec itself in its Resolution No. 8837 as amended by Resolution No.8898 require that before canvassing and proclamation of winning candidates, the Boards of Canvassers (BOC) must see to it that RMAs of selected clustered polling precincts in each legislative district have been publicly conducted immediately after the shutdown of the PCOS machines in the presence of observers, with notice to all parties concerned, particularly the candidates or their duly authorized representatives, and the results thereof have been duly submitted to the BOC and announced.

If this provision of law and the Comelec Resolutions have been followed, these discrepancies/variances would have been discovered already when the results were publicly announced which is before the proclamation of the winners. Their discovery at this late stage means that winners may have already been proclaimed before the RMA results were submitted to the BOC and announced; or that the RMAs were not publicly conducted immediately after the shutdown of the PCOS machines.

These latest revelations by the Comelec and its previous actions as the National Board of Canvassers of proclaiming the Senatorial winners on a piece meal basis even when only a small portion of the canvass results have been transmitted undoubtedly show that there is something wrong in the proclamation of the winners in the last election, both in the local and national level. because of violation of the election laws and their implementing rules.

Indeed the Comelec has also admitted or cannot deny that there was no successful completion of the source code review by the Technical Evaluation Committee established for this purpose, at least three months before the election (Section 11). Neither did it allow political parties and candidates or their representatives, citizens arm or their representatives to examine and test said source code before voting starts (Section 14).

In Section 22 of the AES law also, it is provided that “the election returns transmitted electronically and digitally signed (by the members of the BEI (Board of Election Inspectors) shall be considered as the basis for the canvassing of votes and the proclamation of a candidate.” But in the last mid-term election there are apparently no digital signatures in the returns that were canvassed. It seems that the Comelec itself found them unnecessary and has dispensed with them contrary to the above provision of law.

There are also questions on the use of the Compact Flash (CF) cards which can be bought outside and can be used to replace the ones in the PCOS machines. In fact speculations abound that the CF cards were used in coming out with the 60-30-10 pattern in the results of the election that favored Team PNoy. Hence the Parish Pastoral Council for Responsible Voting (PPCRV), which De Villa also heads, is asking the Comelec to conduct an inventory of the compact flash (CF) cards. De Villa said that “with the inventory, we would know if the cards were replaced.”

There is no doubt therefore that there are violations of law in the last mid-term election and that these may constitute grave abuse of discretion on the part of the Comelec especially in the proclamation of the winners. This grave abuse may indeed be questioned before the Supreme Court (SC) on a petition for Certiorari under Rule 65 of the Rules of Court. The problem now is that the proclamation of winners has already been completed. Hence resort to the SC becomes doubtful because of another adequate remedy in the ordinary course of law. Obviously, this is the reason for the Comelec’s undue haste in proclaiming the winners.

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