Comelec broke rules to charge Arroyo

MANILA, Philippines – In its race against time, did the Commission on Elections bungle a historic case?

We learned today that the Comelec junked its own rules, cut short due process and went against previous rulings of the Supreme Court, when it filed an electoral sabotage case against former President Gloria Macapagal-Arroyo last Friday, Nov. 18.

And by immediately issuing a warrant of arrest against Mrs. Arroyo, it seems that the Pasay City Regional Trial Court also went out of its way to accommodate a government petition.

The Comelec, after all, had specifically asked only for a hold-departure-order (HDO) against the former president, not an arrest warrant. But because an HDO would still require a court hearing, and given that this was requested on a Friday, the judge decided to issue an arrest warrant instead–a move that shocked even the government.

Last Friday morning, following an emergency meeting Thursday night, the Comelec met en banc to vote on the results of a joint Department of Justice-Comelec panel on alleged electoral fraud in the 2007 senatorial race. The Arroyo camp boycotted that probe, citing a petition they filed before the Supreme Court questioning its legality (the Arroyo couple were among the 40-plus respondents in the case). The joint committee nonetheless went ahead with its hearing, terminating it last Tuesday.

Mid-morning of Friday, the Comelec filed an electoral sabotage case against Mrs. Arroyo, former Gov. Andal Ampatuan Sr. and ex-Comelec executive Lintang Bedol.

At around 4 p.m. on the same day, Judge Jesus Mupas of the Pasay City Regional Trial Court Branch 112 ordered the arrest of Mrs. Arroyo and her two co-accused.

Brillantes’s Admission

A Comelec lawyer and a veteran election counsel said all en banc resolutions by the Comelec are subject to motions for reconsideration by the parties concerned.

In short, Mrs. Arroyo should have been given the same opportunity to contest it before the case reached the court.

Comelec chair Sixto Brillantes Jr. and Commissioner Rene Sarmiento agreed that those are their rules. But they argued in separate interviews that as a body they can also bend the rules given the “nature of the case” and its “historic” significance.

In fact, Brillantes said they informed the court about this in a formal resolution – that the Comelec “suspended the rules” so they could seek court relief in efforts to stop her from leaving.

This seems unprecedented.

An election lawyer cited Rule 19 of the Comelec Rules of Procedures, which states how a motion for reconsideration by an aggrieved party may be filed or considered. Sec. 2 of Rule 19 states: “A motion to reconsider a decision, resolution, order or ruling of a division shall be filed within 5 days from the promulgation thereof. Such motion, if not proforma, suspends the execution or implementation of the decision, resolution, order or ruling.”

The election lawyer, speaking on condition of anonymity since he has clients in all camps, said that the party adversely affected by a Comelec resolution or ruling has 5-30 days to appeal a decision. The Comelec is given 10 days to resolve it.

Sec. 6 of Rule 19 states: “The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within1 0 days from the certification thereof.”

The poll lawyer said that an en banc resolution could even be reversed after the filing of a motion for reconsideration. A case in point was the Fair Election Act case filed against Caloocan Mayor Enrico Echiverri.

The en banc initially approved the recommendation of the law department to charge Echiverri with violating election rules in connection with alleged misuse of campaign materials in the last elections.

In his motion for reconsideration, Echiverri sought a dismissal of the resolution, arguing that the Comelec en banc based its findings on mere assumptions and surmises.

This time the en banc gave his plea due consideration. On Sept. 18, 2011, or 8 months after it found probable cause to indict Echiverri, the Comelec en banc changed its mind and cleared him.

Within their powers

Sought for comment, Commissioner Rene Sarmiento said it is the en banc’s position that they have the power “to make the option” of suspending the Rules of Procedure.

During their deliberation on the electoral sabotage case, Sarmiento said the en banc concluded that Arroyo could still contest their decision “by filing a motion before the court or seeking a reinvestigation.”

In cutting short the process, Sarmiento said the en banc considered the “nature” and “historic circumstances” of the case.  “We factored in everything,” he added.

Sarmiento was one of the 5 members of the poll body who approved the resolution to file the electoral sabotage case. Two other commissioners, Lucenito Tagle and Armando Velasco, did not take part in the deliberation.

Sarmiento, Tagle and Velasco were Arroyo’s appointees in the 7-man poll body. As an Arroyo appointee, Sarmiento said “it was not an easy decision,” but he had to consider “national interest.”

Public interest was also cited by Brillantes in explaining the “urgency” behind the Comelec resolution.

Brillantes told this writer that  Mrs.Arroyo and her co-accused were indeed entitled to a motion for reconsideration, and that the en banc was aware of this.

Thus the Comelec submitted to the Pasay court a “supporting resolution” that they were  “suspending the rules in so far as the electoral sabotage case as we await the issuance of the HDO,” Brillantes said.

Which brings us to another question: Was Judge Mupas aware of this? And did he also bend the rules to accommodate the poll body?

Hold, don’t arrest

Brillantes said that when it went to court yesterday, the Comelec was clear in its petition: to ask the court to determine “probable cause” and issue an HDO against Mrs. Arroyo to prevent her from leaving the country and render “from being useless” the electoral sabotage case against her.

But Judge Mupas pointed out that an HDO would still require a hearing. “So it was the judge’s call to issue the arrest warrant,” Brillantes said in a phone interview.

The Comelec only “wanted to manifest before the Court that the information we are filing would be useless” if Arroyo is able to leave the country, Brillantes explained, thus the request was only for an HDO.

“Pero mas grabe ang na-issue ng court,” he said, referring to the arrest warrant.

Because of these apparent violations, the Arroyo camp is expected on Monday to push for an immediate dismissal of the warrant against the former president, who is now under hospital arrest in St. Luke’s Hospital in Taguig.

SC’s stand

The election lawyer we interviewed said that the right to file a motion for reconsideration, and as a procedural requirement, has been sustained by the Supreme Court, albeit by implication, in its previous rulings involving the Comelec.

One case was the vote-buying complaint filed against former Mandaluyong mayor and ex- Comelec chief Benjamin Abalos and his son, Benjamin “Benhur” Abalos Jr., by  Antonio Bernardo and two others.

The case stemmed from alleged vote-buying perpetrated by the Abalos father and son during the May 1998 mayoral elections.

At that time, the Comelec en banc dismissed the petition filed against the Abaloses for insufficiency of evidence. Bernardo and the other complainants took their case to the Supreme Court, arguing that the Comelec en banc acted with “apparent grave abuse of discretion” in dismissing their complaint.

In its ruling, the SC en banc trashed the complainants’ petition for certiorari after it found out that they failed to exhaust all means to contest the Comelec’s finding, in particular the option of filing a motion for reconsideration.

The SC pointed out that under the Comelec’s rules, a motion for reconsideration is meant “to achieve an orderly, just, expeditious and inexpensive determination and disposition of every action and proceeding brought the Commission.”

It said the petitioners’ failure to file a motion for reconsideration “utterly disregarded the Comelec rules…”

Thus as far as this election lawyer is concerned, the Comelec’s actions last Friday violated basic due process. “The procedure was cut short. Due process is a constitutional right.  The railroading of the case could render the case null and void,” he added.