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SC can’t stop canvassing

‘That is a matter vested in the Comelec, there is no provision stating the SC can intervene on that issue.’

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Presumptive president Bongbong Marcos says he received a call from Japanese Prime Minister Fumio Kishida. | PHOTOGRAPH COURTESY OF bbm fb

Estelito Mendoza, lawyer of presumptive president Ferdinand “Bongbong” Marcos Jr., on Friday said that the Supreme Court (SC) has no jurisdiction to prevent Congress from canvassing votes and proclaiming the 9 May elections winners.

Mendoza argued that the “terms of the Constitution are explicit and clear” that the incumbent president shall end his term of office after six years, and that a new president shall start his term on 30 June at 12 noon.

“They are to be followed as provided in the Constitution in text and in language,” Mendoza said in an interview aired over ANC.

“The Congress has no jurisdiction to determine the questions raised in the petition for review, on the decision of Commission on Elections (Comelec), as to the validity of a Certificate of Candidacy (CoC). That is a matter vested in the Comelec, there is no provision stating the SC can intervene on that issue,” he claimed.

He said that petitioners, who are claiming that Marcos had committed material misrepresentation in his CoC, can file an election protest after the canvassing of votes and proclamation of winners.

Election protest

“That will have to be done through an election protest. Not at this time, but at this time, the Constitution provides step by step what shall be done with the votes that are cast in the election,” Mendoza argued.

Mendoza was Marcos Sr.’s concurrent justice minister and solicitor general.

He made the statements in response to questions raised by the petitioners led by former SC spokesperson Theodore Te asking the high court on 16 May to prevent both chambers of Congress from canvassing the votes pending the resolution of their petition to cancel Marcos’ CoC.

On Thursday, SC gave Marcos, the Comelec, Senate, and House of Representatives 15 days from their receipt of notice to file their comments on both the petition and the plea for temporary restraining order (TRO).

In Mendoza’s manifestation submitted to the high tribunal, he invoked that Section 4 Article VII of the Constitution provides that the candidate who garnered the highest number of votes in the elections “shall be proclaimed elected”.

In their original petition before Comelec, Te’s camp alleged Marcos committed material false representation when he claimed under oath in his CoC that he was eligible to run for president despite his previous tax conviction.

The Comelec First Division and later the en banc had junked Te’s petition to cancel Marcos’ CoC.

Marcos’ spokesperson lawyer Vic Rodriguez, earlier noted that the Comelec has already junked the disqualification cases in both the division and en banc level, expressing confidence the SC would rule in their favor.

Petitioner’s burden

Daily Tribune columnist and University of Santo Tomas Faculty of Law Dean Atty. Nilo Divina said the power of Congress to canvass the votes in a presidential election and proclaim the winning President is mandated by Section 4, Article VII of the 1987 Constitution.

He pointed out that there is no appeal from a decision of the Comelec en banc in election cases.

“The remedy is a special action called certiorari,” he said in his column A Dose of Law.

This means, he said, that the burden is on the petitioner to establish that the Comelec committed grave abuse of discretion amounting to lack of jurisdiction.

“This is not easy to prove,” he said.

Most importantly, Divina said the voice of the people is the supreme law when it comes to electoral exercise.

“The Supreme Court has time and again liberally and equitably construed the electoral laws of our country to give the fullest effect to the manifest will of the people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot,” he explained.

“Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will,” he added.

Uphill battle

Meanwhile, lawyer Pacifico Agabin, former dean of the University of the Philippines College of Law, said the petitioners who elevated their case to the SC should prove there was “gross, willful and capricious decision made by the Comelec” in junking their petitions.

“I think that if this case will be given due course, I think the SC can render a decision based on the evidence, but of course, you know very well that proving grave abuse of discretion is an uphill battle,” he said in the ANC interview. “It’s like swimming against the current in jurisprudence.”

The Comelec en banc dismissed petitions to strike out Marcos’ CoC. The groups filed on Monday a petition for certiorari, alleging the poll body gravely abused its discretion for its decision.

In case the high court grants the cancellation of Marcos’ CoC, either Vice President Leni Robredo — who ranked second in the presidential race — or presumptive Vice President-elect Sara Duterte-Carpio would sit as the next Chief Executive, Agabin said.

Marcos, the 64-year-old son and namesake of the late president, got over 31 million votes, making him the first elected president since 1986 by a majority of voters.

“If the fourth petition which is for the cancellation of the CoC of BBM succeeds, then the highest number of valid votes, namely, that of Leni Robredo will be considered (and) that of Bongbong Marcos will be considered stray votes,” Agabin said.

“The second petition, which is a combination of disqualification and violation of internal revenue code, if BBM is disqualified then, the (presumptive) Vice President Sara Duterte will have to take over the position.”

Likewise, if the SC won’t favor the petitioners against Marcos’ presidential bid, he would assume the presidency on 30 June and succeed President Rodrigo Duterte.

A group of civic leaders led by Fr. Christian Buenafe filed a petition for certiorari before the SC in a bid to overturn the Comelec’s ruling denying their plea to cancel Marcos’ CoC.

They also urged the SC to issue a temporary restraining order to halt the canvassing of votes and the proclamation of Marcos for the top government post.

Grave abuse

The high court would decide whether the Comelec committed a grave abuse of discretion as alleged by the petitioners since it has the jurisdiction for such under the expanded definition of judicial power that was stated in Article VIII, Section 1 of the Philippine Constitution, Agabin said.

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