BY EVANGELINE DE VERA AND GERARD NAVAL

THE Supreme Court en banc yesterday denied the petition of Aquilino "Koko" Pimentel III for the issuance of a temporary restraining order on the re-canvassing of votes from Maguindanao.

The 12 magistrates unanimously voted not to issue a TRO after oral arguments that lasted for four hours. Senior Associate Justices Leonardo Quisumbing and Angelina Sandoval-Gutierrez were on leave.

Elections chairman Benjamin Abalos said with the SC decision, the National Board of Canvassers will proceed with the tallying of the Maguindanao votes, adding that he hopes the 12th winning senator will be proclaimed by the June 30 deadline.

The Maguindanao certificates of (COCs) have arrived at the Comelec’s main office in Intramuros and were scheduled to be canvassed last night along with other supplement COCs with an estimated 100,000 votes from Basilan, Lanao del Sur, Shariff Kabungsuan, Laguna and Batangas which held special elections last June 20.

Based on the latest tally, Pimentel led Juan Miguel Zubiri by 115,590 votes.

But based on the re-canvassing of Maguindanao votes that was completed Wednesday night, Zubiri had 195,823 votes while Pimentel had 67,111.

If these are included in the final tally, Zubiri will lead Pimentel by 13,122 votes.

Asked if it is safe to assume that Zubiri will be proclaimed based on the result of the Maguindanao vote, Abalos answered in the negative, saying 100,000 votes still had to be tallied.

Chief Justice Reynato Puno directed Pimentel and Zubiri to submit their memoranda on the case within 10 days.

During the oral arguments, Pimentel failed to convince the tribunal that there was a need to stop the re-canvass and inclusion of Maguindanao votes on a mere assumption of an irregularity.

Pimentel, who argued his own case, said if Comelec includes spurious and highly questionable election documents from Maguindanao in the re-canvass, it would cause irreparable injury to him and some 10 million people who voted for him.

He said the Maguindanao votes were highly irregular because these were generated by the Comelec through irregular means.

"These documents may be written on Comelec paper but the integrity, validity and the custody chain are questionable and untrustworthy under irregular circumstances," he said.

But Pimentel admitted he has no concrete evidence that the election documents have been tampered with.

Associate Justice Cancio Garcia pointed out that if the Court will grant the petition, it could mean the disenfranchisement of more than 200,000 Maguindanao voters on the basis of a mere assumption of fraudulent municipal COCs.

Garcia also brushed aside Pimentel’s argument that the municipal COCs could have been fabricated because the Comelec did not follow its established procedures in canvassing of votes.

"You’re imputing irregularity on the documents not on its face but on the manner these documents were generated. You have no proof whatsoever that the documents were themselves irregular, tampered or doctored," Garcia told Pimentel.

Garcia suggested that Comelec be allowed to finish the re-canvassing of Maguindanao of votes because the loser can still question the authenticity of the ballots before the Senate Electoral Tribunal.

Associate Justice Antonio Carpio reiterated the need to include the votes of Maguindanao in the national canvassing based on Pimentel’s admission that an election took place and that the Comelec had already proclaimed the winning local officials in the province.

Associate Justice Minita Chico-Nazario pointed out that the Court has no jurisdiction over Comelec’s claim of "statistical improbability" involving the result of the re-canvassing where 18 out of the 37 senatorial candidates received zero votes in Maguindanao, as the SC is not a trier of facts.

In a 26-page comment which it submitted prior to the oral arguments, Comelec asked the high court to dismiss Pimentel’s petition to exclude the province of Maguindanao from the national canvass and to proclaim the last remaining senator on the basis of the canvass of the election results from all the provinces/cities of the country, excluding Maguindanao.

Lawyer Alioden Dalaig said the Comelec did not exceed its jurisdiction or act with grave abuse of discretion when it motu propio initiated proceedings preparatory to the declaration of failure of elections in Maguindanao.

Dalaig said that although the Omnibus Election Code requires a verified petition for an interested party to initiate an action for the declaration of a failure of elections, it does not prohibit the Comelec from initiating such proceedings on its own.

He further said Comelec did not abuse its discretion when it created Task Force Maguindanao to determine the true choice of the voters by examining the alleged accountable documents.