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PIMENTEL ASKS SENATORS TO INHIBIT THEMSELVES OR BE RECUSED FROM THE SENATE ELECTORAL TRIBUNAL

Former Senator Aquilino Pimentel, Jr., today asked Senators Edgardo Angara, Loren Legarda and Lito Lapid, Senate majority members in the Senate Electoral Tribunal to inhibit themselves or be recused from participating in the deliberations in the Protest filed in 2007 by his son and namesake, Aquilino “Koko” Pimentel against Juan Miguel Zubiri in connection with the 2007 senatorial elections.

The continued presence and participation of the three personalities as representatives of the Senate majority in the SET, the elder Pimentel said, would prevent a just resolution of the case and unduly delay its closure which has been pending for the last three years. “The delay, alone,” he added, “is surprising because unlike the House of Representatives Electoral Tribunal which is swamped by several poll protests, the SET has had only one case, Pimentel versus Zubiri, since the current term of the Senate had begun in 2007.”

 

SET Rules disregarded

 

The former senator said that the threat to cite Koko for contempt leveled by the majority members of the SET and abetted by the Senate majority Senators in the Tribunal arose from a Motion for Reconsideration filed by the latter on July 1, 2010. In that motion, Koko questioned as bereft of any merit the resolution of the SET majority dated June, 2010 that allowed Mr. Zubiri to proceed with his protest in spite of his failure to comply with the SET Rules.   

 

The SET rules require Mr. Zubiri as a counter protestant to show that at least 25% of his protested area had proof of cheating (that prejudiced him) as a legitimate basis for him to proceed with his counter-protest .

 

Feckless ground

 

The Senate Majority members who should have known better ruled with SET majority members that both Pimentel and Zubiri “admitted that ballots of dubious integrity were discovered in the course of the revision proceedings in Quezon City, Manila, Batangas and Bulacan.”

 

Now, even assuming that such an admission was made, it does not follow that Koko cheated Mr. Zubiri in any manner or to stretch the ridiculous assumption further, that the cheating could lead to the overhauling of the true results of the 2007 senatorial elections whereby Zubiri could legitimately claim having won over Koko.

 

In denying Koko’s motion, the senior Pimentel said that “the Senate majority representation in the SET asserted a fecklessly pretextual assumption that the former was making a mockery of the proceedings.

 

“On the contrary, it is the Senate majority members of the SET that is making a charade of its proceedings. I deplore the threat of contempt as a totally unfair and a blatant violation of the rule of law, the elder Pimentel said.

 

“It adds insult to injury to a party who is merely seeking justice from the Tribunal for the blatant travesty perpetrated by certain officials and personnel of the COMELEC in the 2007 senatorial elections.  For purposes of record, the evidently farcical and lamentably ludicrous Comelec-initiated acts were first done by Comelec’s crediting Mr. ZubirI with the clearly spurious 195,000 votes (in round figures) out of the 197,000 voters who reportedly voted from a base of 205,000 registered voters in the notoriously fraud prone province of Maguindanao in the 2007 elections.

 

This blatant transgression of the Constitutional mandate of the Comelec to ensure clean and honest election was followed by their scandalous proclamation of Mr. Zubiri on the basis of that fraudulent count that officially seated the latter as the 12th winning senator with a manufactured lead over Koko of roughly 19,000 votes nationwide.

 

Pimentel’s insurmountable lead

 

The Maguindanao votes had since then been wiped out in proceedings pursuant to the protest of Koko and he had recently ended his protest with a well-nigh insurmountable lead of more than 257,000 votes over Mr. Zubiri.

 

This assertion is not mere guesswork. It is based on proven facts that were elicited at the actual recount of the votes protested by Koko. It is rooted on the ruling of the SET Resolution dated June 17, 2008 that the “… the election in the pilot areas designated by Pimentel was characterized by proven irregularities. On the basis of such facts, the Tribunal ruled that Pimentel has a prima facie valid cause of action and that there was reasonable ground to believe that the final outcome of the Protest could affect the officially proclaimed results for the twelfth (12th) senatorial position in the 14 May 2007 national elections.”

 

Astonishing turnaround 

 

            But in recent developments, astonishingly, the SET majority allowed Mr. Zubiri to proceed with his counter-protest ostensibly because he had “presented testimonial and documentary evidence intending to prove that the ballots cast in Pimentel’s name in the counter-protested precincts were fraudulently prepared rendering invalid the results of the elections in said areas.”

 

It is not surprising, however, that the senate majority members of the SET supported the issuance of the questioned resolution. The reason is that Sen. Angara, Sen. Legarda and Sen. Lapid and Miguel Zubiri had at the start of the current session publicly announced the creation of a four-member bloc in the Senate that would vote as one on issues confronting the chamber and especially on the matter of the then contested presidency of the institution.

 

Just rewards

 

As a bloc, they received the just rewards for their glib negotiating skills and dexterous political acumen when they all landed important Senate committee chairs and memberships in the Commission on Appointments and the Senate Electoral Tribunal. Note the following:

 

1.      Sen. Angara – Chair, Committees on Education, Arts & Culture;

                                           Chair, Committee on Science & Technology;

                                            De facto leader, Senate Majority Panel at the SET;

                                            Member, Commission on Appointments

        (Usually, a senator may be a member of either

                                            the SET or the CA).

 

2.      Sen. Legarda – Chair, Committee on Foreign Relations;

                                              Chair, Committee on Climate Change;

                                              Chair, Cultural Committee;

                                              Member, Senate Electoral Tribunal.

 

3.      Sen. Lapid –    Chair, Committee on Sports and Amusements;

         Chair, Committee on Tourism;

                     Member, Senate Electoral Tribunal, and

       

4.      Miguel Zubiri, Chair, Committee on Natural Resources & Environment;

                             Chair, Committee on Cooperatives.

 

            To underscore the dubious premises of the questioned ruling of the SET, let me point out that there is a vast difference between the words “proven irregularities” that the SET used to describe the results of Koko’s protest and the phrase “intending to prove” that the SET used to give the go-signal to Mr. Zubiri to proceed with the rest of his counter protest.

 

            That, to repeat, is why Koko filed the motion for reconsideration for which he is now threatened with contempt.

 

As members of the bloc, it is our belief that the three senators whose recusement is sought by Koko still plan their senatorial schemes as cultists do or to be more polite as the Three Musketeers did: “one for all, and, all for one.” It would, therefore, be the height of naivety, and, worse, outright ignorance of the facts of life to believe that the trio los amigos in the Tribunal would ignore their fourth colleague when it comes to issues raised in the SET.

 

That is also the reason why Koko had asked for a reconsideration of the SET Resolution No. 07-105 that gave due course to Mr. Zubiri’s counter-protest that alleged the most extravagantly ambiguous charges of poll fraud on Koko’s part.

 

Fatal blow

 

In sum, allowing Mr. Zubiri to proceed with the rest of his counter-protested areas without proof that the results of the recount of the 25% of pilot precincts chosen by him in his counter-protest had been tampered with is an utter violation of the Rules of the SET that, at the very least, also infringes upon the requirements of procedural due process, and, therefore, deals a fatal blow to his pretentions.

 

For the only thing that Mr. Zubiri did to borrow the words of Justice Carpio, chair of the SET, was to merely allege but not prove election irregularities (Dissenting Opinion, p. 4).

 

Nonetheless, contrary to the facts that are ineluctably embedded in the Records of this case, the SET majority resolution dated November 4, 2010 held that Pimentel “has utterly failed to persuade a second look at SET Resolution No. 07-105.”

 

Then, in a plainly unfounded non-sequitur, the resolution jumped into this unwarranted conclusion: “The Tribunal cannot further countenance the belligerent and provocative stance of the protestant in making a mockery of the proceedings. His actions speak of anarchy and a gross and condemnable disrespect of the rule of law.”

 

 The questioned resolution, then, warned Koko that he could be subject to contempt proceedings if he would speak further on a sub judice issue.

Incidentally, and, for the record, Koko’s statements in his pleadings or elsewhere were not meant to insult, demean or derogate from the respect due to the members of the Tribunal.

 

Utterly baseless

 

But to go back to the questioned resolution, let me quote the trenchant words of Justice Antonio Carpio, chair of the SET: “I cannot subscribe to this view as it is utterly baseless. The majority gravely failed to show that further proceedings in this electoral contest are warranted based on the procedure outlined in the Revised Rules of the Tribunal. xxx

 

“In fact,” Justice Carpio added that “the spurious ballots constitute a mere 2.2% of the total contested ballots in Quezon City, Manila, Batangas and Bulacan. Incidentally, the fake ballots do not necessarily translate into a net recovery of votes in favor of either Pimentel or Zubiri, as such ballots could reflect votes for either Pimentel or Zubiri or both.”

 

The Chair was referring to Rule 79 of the Revised Rules of the SET.

 

National interest

 

“As a lawyer,” the former senator from Mindanao said, “I dispute the premise of the SET majority position. In my view, it only provides a veneer of rationality. The syllogism does not hold water but merely offers an ill-contrived basis to sanction Koko.

 

 “Koko’s case is a case of national interest. It involves millions of people who voted for him in the 2007 senatorial elections. A matter of national interest cannot be silenced by threats of contempt.”

 

Silence is no option

 

I cite Lord Denning’s cautiously crafted statement regarding judicial officials who cannot abide views contrary to to theirs: “Silence is not an option when things are ill done.”

 

The Denning[1] thesis is expansively discussed in Regina v. Commissioner of Police of the Metropolis (1968) 2 All ER 319, which quotes him as follows: 

‘‘Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. (Emphasis, added).

 

Despite the criticisms of those who disagree with the views of those who wield the pen of justice, his conclusion with which I fully agree is that:

 

“Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.’’

           

Furthermore, “We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling criticism of a strategic institution, namely, administration of Justice, thus forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice, may be a tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic Government. The judicial instrument is no exception. To cite vintage rulings of English Courts and to bow to decisions of British Indian days as absolutes is to ignore the law of all laws that the rule of law must keep pace with the Rule of life. To make our point, we cannot resist quoting McWhinney, who wrote….

 

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”

 

Sharing Koko’s views

 

I fully share the stand of Koko on the issue but if the SET majority wants to frighten those who disagree with their rulings and show that they have the untrammeled power to silence anyone on such an issue, I suggest that they sanction me in place of my son. Koko is a young man and has many years of possible service to the people and does not deserve to suffer for something that he has not done.  

 

In my case, my days are practically done. And I have been imprisoned arbitrarily during the martial law years. In a sense I have been there before and prison bars no longer frighten me. And I certainly don’t want it said that the SET majority can just silence anyone even if he or she has a valid grievance and order that person to keep quiet in the guise of the sub judice rule. In short, I offer myself as the sacrificial lamb to their desire to manifest the power they have in their hands as the majority members of the SET.

 

Upholding lawyers oath

 

Neither is there any ground to remind Koko Pimentel that he is a member of the Bar. He is doing exactly what is demanded of him as a lawyer according to our Lawyer’s Oath that he:

 

 “…will do no falsehood, nor consent to the doing of any in court; (he) will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; (he) will delay no man for money or malice, and will conduct (himself) as a lawyer according to the best of (his) knowledge and discretion  with all good fidelity as well as to the court as to (his) clients…”

 

In the cases that he has handled and in the case at bar, Koko had done no falsehood and neither will he give his consent to the doing of any in court by Mr. Zubiri or anyone else or promote or sue an groundless, false or unlawful suit as Mr. Zubiri attempts to do in the SET. Neither will he acquiesce to any attempt by Mr. Zubiri or any man or woman to delay the resolution of his protest or any cause for that matter because of money or malice.

Prudent act

 

In brief, Koko merely did what any prudent person who has monitored the actuations of the majority members of the Senate would do. He begged the SET members from the Senate Majority, namely Senators Edgardo Angara, Loren Legarda and Manuel “Lito” Lapid, to inhibit themselves from the deliberations of the body to avoid any impression that their political bias could influence their decision on his poll protest. That is not a contumacious act directed to the Tribunal at all.

 

Moreover, there is nothing in the records of this case or outside of it that would show that Koko was pitting “public opinion against the … Tribunal” or that he has adopted a “belligerent and provocative stance … in making a mockery of the proceedings.”

 

The assertion of the majority members of the SET that “his actions speak of anarchy and (of) a gross as well as condemnable disrespect of the rule of law” is inherently untrue and is belied by the circumstances obtaining in this case. It may even be the product of a deliberate design to provide a façade of reason to achieve the predetermined objective to silence Koko particularly by the intimidating citation for contempt that in my view erroneously found its way in the SET resolution under question.

 

Not all bleak

 

Happily, it is not all that bleak in the darkened corridors of the SET. Justice Antonio Carpio and Senators Pia Cayetano and Kiko Pangilinan had upheld the cause of Koko Pimentel by casting dissenting opinions.

           

The former senator added that if Senators Angara, Legarda and Lapid are recused from the SET and replaced by senators who would look at the evidence, the law and the Rules of the Tribunal, fairly and objectively, chances are Koko’s protest would find a just closure. If the three inhibit themselves or are recused from sitting in the Tribunal, three other senators will replace them who would in most likelihood be more impartial and be more dependent for their decision in the case on the evidence at hand and the facts that had already been established in the Records of the Protest by Koko.

 

Proposal in reason

           

It is certainly depressing and a sad commentary to note that because of the obdurate stand of the Senate Majority members in the SET, they have in effect abetted the inexcusable delay in the resolution of the Koko’s protest. To be more precise, the unwarranted delay has already taken three years of the six year term that is being contested.

           

 

If the Senate majority representation in the SET wants to do justice to the protest of Koko, they could perhaps rule that since Koko had already established a lead of some 257,000 votes over Zubiri, he should be seated now in the Senate even as they would allow Zubiri to prove his counter protest against Koko.

           

That, perhaps, would be the fair way out of this highly controversial issue.

 

  

-30-


[1] Lord Denning was known as “the most celebrated English Judge of the century. Guardian, UK, March 6, 1998



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