Philippine democracy: Bushed but not gored

Raul C. Pangalangan, Philippine Daily Inquirer, Asia News Network, Manila

The Supreme Court has unanimously thrown out the petition of an opposition congressman to stop the canvassing of votes cast for president and vice president, and affirmed the power of Congress to create a joint canvassing committee.

Significantly, however, four justices urged our lawmakers not to take the certificates of canvass (CoCs) on their face but, when confronted with the telltales of fraud, to look at the election returns as well.

Justice Reynato Puno, joined by Justices Angelina Sandoval- Gutierrez, Romeo J. Callejo Sr. and Adolfo S. Azcuna, said the canvass "cannot be done in a robotic manner (as if our lawmakers were) unthinking slot machines when conducting the canvass. ....

The search for the truth about the true will of the electorate should not be confined to the four corners of the certificate of canvass. The truth, if blocked by the opaque face of the certificates of canvass, must be extracted from the election returns and statements of votes."

The words of our Supreme Court justices should guide our lawmakers in making an earnest effort to give meaning to the Constitution's promise that "sovereignty resides in the people and all power emanates from them."

Some CoCs have been identified as "land mines of fraud," showing statistical and mathematical improbabilities, and outright tampering. Yet administration members of the joint canvassing committee, by the strength of their numbers, have parried every opposition attempt to open the electoral returns.

Opposition Rep. Rodolfo Plaza from Agusan del Sur laments: "Never, not once, (has) the request of the minority to go down to the election returns (been) granted." All appeals to reason have been apparently thwarted by the legal view that the joint committee must limit itself to the CoCs.

It is useful therefore to review afresh the grounds for the Puno opinion. The Constitution provides that the Congress must look at the "authenticity and due execution (of the CoCs) in the manner provided by law."

Administration stalwarts say that therefore the canvassing committee must not inquire behind the certificates of canvass, and the opposition can complain only about "authenticity and due execution," that is to say, to check if the CoCs have all the right signatures and other formalities.

Justice Puno however notes the words "in the manner provided by law," and indeed Congress has so provided in Republic Act No. 7166. Under that law, authenticating includes the task of verifying that "there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the certificate."

The law further states that when there are "erasures or alterations which may cast doubt" on the integrity of the CoC, Congress shall have recourse to the election returns submitted to it. That is the law Congress itself has passed, and that the joint canvassing committee has no power to repeal.

The Supreme Court decision does not guarantee a sober, well- behaved Congress. It hopes merely to ensure that henceforth the noise will no longer be empty posturing over technicalities but will be directed at one proper purpose: To ensure that the CoCs are not doctored nor manufactured, and truly reflect the people's will.

The Puno opinion should dispose of the highly legalistic argument that the canvassing committee must not open the election returns, and help the voice of reason prevail.

The Court made short shrift of the issue of who will canvass, whether the whole Congress or just a joint committee. After all, why should it matter if a CoC is challenged by 20 Dilangalens in plenary session, or by one Francis Escudero in the grand manner before a joint committee, if in the end the committee members all vote along party lines? It is therefore not a question of how many object, but how well.

The Supreme Court has refused to stop the counting in Congress and has deferred to the power of Congress, a co-equal branch of government, to interpret its constitutional duty to canvass the presidential votes. It has shown that, in the electoral process, the role of courts is limited to merely ensuring that the process is respected.

On the other hand, when the four justices tell Congress that it must check the CoCs against the election returns on which they are based, they performed the judicial function to interpret what the Constitution means when it says that CoCs can be challenged only for their "authenticity and due execution."

The Supreme Court has done what it could to respect the democratic process. The U.S. Supreme Court was loudly criticized for its Bush vs. Gore decision because it stopped a manual recount that aimed to confirm the will of the voters, since then labeled "a very American coup."

The Philippine Supreme Court has done no such thing. It has allowed the count to proceed and four of its members have shown Congress the legal path to ensure that the canvassing, though it has made everyone bushed and exhausted, will not gore Philippine democracy.

Justice Puno continued: "The nation can endure a slow but trustworthy tally. It may not survive an indefensible count, however speedy it may be." He concludes: "An unreasoned or unreasonable judgment by Congress runs the risk of rejection in the parliament of the street of the people. And the danger is that we may not just face a mute multitude."