REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

EN BANC

AQUILINO L. PIMENTEL III,

Petitioner,

- versus - G.R. No.

______________
For: Certiorari and
Mandamus
THE COMMISSION ON
ELECTIONS EN BANC
SITTING AS THE NATIONAL
BOARD OF CANVASSERS,
THE SPECIAL PROVINCIAL
BOARD OF CANVASSERS
FOR MAGUINDANAO
CHAIRED BY ATTY. EMILIO
S. SANTOS, and JUAN
MIGUEL F. ZUBIRI,
Respondents.
x------------- ----------x

PETITION
(With Urgent Prayer For Temporary
Restraining And/Or Status Quo Ante
Order)

PETITIONER, by counsel, most respectfully alleges:

PREFATORY STATEMENT

Our forefathers, when they drafted the Philippine

Constitution which is the bedrock of all rights of citizens in

our free and democratic society, recognized several

 2

inalienable rights. The most elementary of these rights is

the twin rights to due process and to equal protection of the

laws.
 3

In interpreting what constitutes due process of law, this

Honorable Court has stated that judicial (quasi-judicial)

proceedings are not orchestrated plays in which the parties

are supposed to make the motions and reach the

denouement according to a prepared script. There is no

writer to foreordain the ending. The judge will reach his

conclusions only after all evidence is in and all the

arguments are filed, on the basis of the established facts and

the pertinent law.

In justifying its acts of bending over backwards to make

sure that results in Maguindanao are included in the

canvass, the respondent Comelec and its apologists are

invoking the respondent’s “broad, plenary power” to ensure

the conduct of elections and the ascertainment of its results.

Some quarters have opined that the Comelec should be

commended for these acts.

It would appear, however, that the respondent Comelec

invokes its plenary power only when it is favorable to one

candidate, but refuses to do so when it is favorable to the

petitioner. Respondent Comelec unreasonably and arbitrarily

refuses to exercise its broad, plenary powers in fully

ascertaining the due execution, authenticity and fitness for

canvass of the copies, mostly copy 2 or copy for the wall, of

the Municipal Certificates of Canvass (“MCOCs”) retrieved

more than a month after the elections. This Petition will

 4

show that, on the contrary, the respondent Comelec should

be condemned, not commended, for violating the

Constitution and refusing to recognize the petitioner’s right

to due process and equal protection of the law.

This Petition will also show that respondent Comelec

sitting as the National Board of Canvassers violated its own

rules when it deprived petitioner of his right to fully and

adequately present, expound and prove his objections to the

new/second Provincial Certificate of Canvass of Votes and its

source documents from Maguindanao.

The canvass proceedings before the public respondents

have been a sham, aimed at a pre-ordained ending – the

defeat of the petitioner and the forced victory of the private

respondent based on manufactured certificates of canvass

characterized by badges of fraud which stand out as an

incredulous oddity in the recently held elections.

All these transgressions, omissions and palpable events

of railroading necessitate immediate intervention by the

Honorable Court through the special writs of certiorari and

mandamus.

NATURE OF THE PETITION

This is a Petition for Certiorari and Mandamus filed

under Rule 65 of the 1997 Rules of Civil Procedure, seeking

to (1) nullify or set aside for being unconstitutional and

illegal the proceedings and acts of respondent Commission

 5

on Elections en banc sitting as the National Board of

Canvassers for Senators for the May 14, 2007 elections

(henceforth referred to as “NBC”) of including in the national

canvass of votes for Senators the results from the Province

of Maguindanao as reflected in its new/second Provincial

Certificate of Canvass (“PCOC”) as well as the proceedings

and acts of the respondent Special Provincial Board of

Canvassers for Maguindanao (the “SPBOC”) in “re-

canvassing” the collected MCOCs leading to the preparation

of the new/second PCOC for Maguindanao, and (2) compel

respondent NBC and its deputy, the SPBOC, to perform their

ministerial constitutional duty of fully determining the due

execution and authenticity of the MCOCs, including, but not

limited to, allowing petitioner to substantiate his claim of

manufactured results and propound questions to the officers

concerned, primarily, the Chairpersons of the former PBOC

and SPBOC of Maguindanao and the Chairpersons of the

Municipal Boards of Canvassers.

In this petition, it shall be shown that the petitioner was

denied his right to both procedural and substantive due process

of law as well as equal protection of the law in the proceedings

of the respondent SPBOC and later in the respondent NBC, when

the latter refused to allow the petitioner to be fully heard on the

issue of the authenticity and due execution of the MCOCs.

These are valid issues in the canvass and, as a matter of fact,

 6

the determination of these issues is one of the primary duties of

the respondents SPBOC and NBC. Yet the respondents refused to

hear the petitioner on these issues.

Certified true copy of the Transcript of Stenographic

Notes (partial) of the proceedings in the NBC on 29 June

2007 is attached hereto and made integral part hereof as

Annex “A”. (The other portions of the 29 June 2007 TSN are,

as of this writing, still unavailable. So are the TSNs of the

proceedings in the SPBOC on 25 and 26 June 2007.

Petitioner undertakes to submit the same as soon as they

are available.)
 7

When the COCs of other areas were being canvassed at

the NBC level, the interested parties, including the herein

Petitioner, were always allowed to ask questions regarding

the authenticity and due execution of the COCs being

canvassed. Indeed, something must be very special about

the MCOCs and PCOC of Maguindanao that something similar

to a “gag order” has been put in place as far as these

MCOCs and PCOCs are concerned.

To make matters worse, in the evening of June 29,

2007, right after the inclusion in the national canvass of the

second PCOC of Maguindanao, the NBC Chairman, Comelec

Chairman Benjamin Abalos, was seen in the company of the

family of private respondent Zubiri who is the main

beneficiary of the inclusion of the Maguindanao results in the

national canvass.

Given the respondents’ actuations (the denial of

Petitioner’s right to raise the issues of authenticity and due

execution at both the SPBOC and NBC levels as well as the

meeting of the NBC Chairman with the private respondent’s

family), the herein Petitioner believes that filing a Motion for

Reconsideration with the NBC would be an exercise in futility.

Furthermore, the issues presented herein are purely

constitutional issues involving patently unlawful acts which

are null and void. Case law has recognized that where (1)
 8

the question is purely legal; (2) judicial intervention is

urgent; (3) the application of the doctrine of exhaustion of

remedies may cause grave or irreparable damage; and (4)

the controverted acts violate due process, prior filing of a

motion for reconsideration may be dispensed with.1

There is no appeal in the ordinary course of law from

the decision of the NBC to include in the national canvass

the second PCOC of Maguindanao. There is also no plain,

speedy, and adequate remedy in the ordinary course of law

available to the herein Petitioner. Where else should the

Petitioner raise the issues of authenticity and due execution

of the contested COCs and prove his claim of manufactured

results except before the canvassing boards during canvass

proceedings? This having been denied by the latter, there is

no other remedy available except the instant Petition.

Hence, the herein Petitioner was constrained to resort

to this special civil action of certiorari and mandamus.

TIMELINESS OF THE PETITION

Assailed in this Petition are the proceedings and acts of

the respondents SPBOC and NBC which led to the inclusion in

the national canvass of votes for Senators of the second

PCOC of Maguindanao. The questioned proceedings of the

SPBOC were held on 25 - 27 June 2007, while those of the

NBC were held on 29 June 2007. It was also on 29 June

1
Cf. Namil, et al. v. Comelec, G.R. No. 150540, 28 October 2003.
 9

2007 when the NBC ruled to include the second PCOC of

Maguindanao in the national canvass.

Hence, this Petition has been timely filed.

 1

THE PARTIES

Petitioner, AQUILINO L. PIMENTEL III, is a Filipino, of

legal age married and with office address at Unit 1201 The

Atlanta Center, No. 31 Annapolis Street, Greenhills, San Juan

Metro Manila. He may be served processes, pleadings and

other legal papers, through counsel, DE LIMA & MEÑEZ Law

Offices, at its address, 131 Panay Avenue, 1103 Quezon City.

Respondent, COMMISSION ON ELECTIONS

(“COMELEC”) sitting as the NATIONAL BOARD OF

CANVASSERS (“NBC”), is a Constitutional body with office

address at Palacio del Gobernador, Intramuros, Manila. It is

impleaded in this Petition in its capacity as NBC which ruled

to include the second PCOC of Maguindanao in the national

elections. It may be served summons through its Chairman,

HON. BENJAMIN S. ABALOS, SR.

Respondent, SPECIAL PROVINCIAL BOARD OF

CANVASSERS FOR MAGUINDANAO (“SPBOC”), was

created by the respondent Comelec En Banc in its capacity

as NBC. It is composed of Atty. Emilio S. Santos, Chairman,

Atty. Manuel T. Lucero, Vice-Chairman,2 and Atty. Dinah A.

Valencia, Member-Secretary. The SPBOC of Maguindanao

may be served processes of the Honorable Court, through its

Chairman, Atty. Emilio S. Santos, at the Comelec, Palacio del

Gobernador, Intramuros, Manila.

2
Atty. Lucero was designated as substitute Third Member in lieu of Atty.
Roseller B. Abad who was reportedly indisposed for the Shariff Aguak
proceedings.
 1

Private Respondent, JUAN MIGUEL F. ZUBIRI

(hereinafter referred to as “Zubiri”), is the only remaining

senatorial candidate in the May 14, 2007 elections with a

theoretical and mathematical chance of overtaking the

petitioner in the senatorial canvass. Zubiri is the person to

be most benefited by the respondent NBC’s and SPBOC for

Maguindanao’s acts of denying the petitioner of his twin

rights to due process and equal protection of the laws and

can therefore be said to be the private person interested in

sustaining the respondent Comelec’s unconstitutional acts

and proceedings. He can be served with summons through

his lawyer at the senatorial canvass, Atty. George Erwin

Garcia with address at Ground Floor, Laiko Bldg., Cabildo St.,

Intramuros, Manila.

STATEMENT OF THE FACTS

AND CASE

1. The Petitioner is a bona-fide candidate for the

position of Senator of the Republic of the Philippines in the

14 May 2007 national elections.

2. On or about 21 May 2007, the Provincial

Certificate of Canvass (“PCOC”) and the Summary Statement

of Votes (“SSOV”) for the province of Maguindanao was

presented for canvass before the respondent NBC. Due,

however, to the absence of Atty. Lintang Bedol, the then

Provincial Election Supervisor (“PES”) and then Chair of the

 1

Provincial Board of Canvassers of Maguindanao (“PBOC”),

canvassing of the PCOC was reset to 25 May 2007.

3. When again presented for canvass on 25 May

2007, petitioner, through counsel, as well as other

candidates, members of the Genuine Opposition (“GO”)

objected to the canvass of the said electoral documents,

primarily, for bearing badges of fraud which show that it

does not correctly reflect the true results of the elections in

the Province of Maguindanao in regard to the national

positions for Senator. Specifically, petitioner and other GO

candidates pointed to the manufactured nature and

statistical improbability of the “results” reported in the PCOC

of Maguindanao, borne out by the following observations,

among others: 19 candidates including legitimate and

extremely popular GO candidates Noynoy Aquino, Alan Peter

S. Cayetano, Ping Lacson and Trillanes were credited with

zero votes; extremely high voters’ turn-out of 94% to 97%

for each municipality, and 98% over-all.

4.1. In the course of the 25 May 2007

proceedings, PES Bedol was subjected to questioning by

the NBC itself and counsels present. He admitted that

no watchers from the opposition and citizens’ arms like

NAMFREL and PPCRV were present at the provincial

canvassing. (Pls. refer to TSN dated 25 May 2007

attached hereto as Annex “B”.)

 1

5. On account of the objections to the PCOC, canvass

thereof was deferred. Said PCOC was eventually excluded or

set aside, principally for being statistically improbable. The

other reasons cited were: that the canvass proceeded

without the presence of the parties involved in the elections

and that not one of the parties were furnished a copy of the

election documents. (Pls. refer to 4 June 2007 TSN, pp. 2-3,

Annex “C” hereof)

6. On or about 30 May 2007, respondent SPBOC was

created for the purpose of canvassing the MCOCs together

with the SSOVs and SOVs By Precinct from the component

municipalities of Maguindanao.

7. The SPBOC convened on two (2) occasions, to wit,

on 4 and 6 June 2007. There being no documents that may

be canvassed as none were submitted to the Comelec’s

Election Records and Statistics Department (“ERSD”), the

SPBOC terminated its canvassing on 6 June 2007. (Annexes

“D” and “D-1” hereof)

8. In an Order issued on even date, the Comelec En

Banc initiated proceedings, denominated as “In The Matter

Of Declaring Failure Of Elections In The Conduct Of The 14

May 2007 Elections In The Province Of Maguindanao”

whereby it set a hearing on 11 June 2007, at 10:00 a.m., at

which date and time all proclaimed local officials shall

 1

present evidence “to prove that elections were indeed held

in Maguindanao and that they were duly elected and

proclaimed.” (Annex “E” hereof)

9. In the meantime, eleven (11) Senators were

proclaimed by the respondent Comelec leaving only one (1)

seat in the Philippine Senate being contested.

10. Candidates Ralph Recto, Michael Defensor, and

Prospero Pichay also conceded that they can no longer

garner enough votes to be eligible for the then remaining

two (2) seats in the Philippine Senate.

 1

11. The petitioner has been and continues to be in the

twelfth (12th) place in the official tally of votes for position of

Senator in the canvass of the respondent Commission sitting

as National Board of Canvassers leading candidate Juan

Miguel F. Zubiri by approximately one hundred twenty

thousand (120,000) votes prior to the unconstitutional acts

of the respondent Comelec sitting as NBC and the SPBOC.

12. During the hearing on June 11, 2007, petitioner

filed an Opposition to the proceedings which was however

denied. Since there was no appearance on the part of the

proclaimed local candidates, nor by the MBOCs from the

twenty two (22) municipalities, another hearing was set for

15 June 2007.

13. During the hearing on 15 June 2007, counsels for

local proclaimed officials and Congressman in the province of

Maguindanao appeared. Prior to the hearing, the local

proclaimed officials through counsel, Atty. Pete Quirino-

Quadra submitted a Position Paper attaching thereto official

documents of the Comelec-Maguindanao proving that they

were validly elected and proclaimed. Also submitted was a

Manifestation to which was attached a copy of the Minutes of

the Proceedings of the old PBOC of Maguindanao. (Annex

“F” hereof)

14. There was also an appearance allegedly for the

EOs/MBOCs in the province. Still, not a single MCOC showing

 1

results of the election for Senators in the province of

Maguindanao was submitted. Although alleged counsel for

the EOs/MBOCs manifested that the reason for his clients’

non-appearance was that they were unable to procure

airplane tickets but that they had in their possession

“accountable election documents”. What these

“accountable election documents” were was not disclosed.

15. Delighted by this revelation, the Comelec through

its Chairman, immediately issued an Order dated June 15,

2007 authorizing one of the Commissioners, particularly

Commissioner Ferrer, to go to the province of Maguindanao,

meet with the various municipal election officers therein,

“see” what accountable election documents are in their

possession and determine if they can be included in the

canvass for Senators. (Annex “G” hereof) At that point, the

failure of elections proceedings were deemed converted into

one for the retrieval of election documents for possible

inclusion into the national canvass.

17. On 18 June 2007, the respondent Comelec

convened itself as the NBC and issued a Resolution NBC No.

07-29 ordering the respondent SPBOC for Maguindanao to

reconvene and notify the original PBOC of Maguindanao

chaired by PES Bedol, and the MBOCs, to produce before the

SPBOC various election documents. (Annex “H”)

18. Also on 18 June 2007, an Order was issued

 1

notifying the EOs of the 22 municipalities of Maguindanao

and counsels of various candidates that three (3) members

of the Commission, namely, Chairman Abalos, Commissioner

Rene V. Sarmiento, CIC of the Region and Commissioner

Ferrer, Head, Maguindanao Task Force, will be at General

Santos City on 20 June 2007 to examine/look into the alleged

accountable documents. (Annex “I” hereof)

19. On 20 June 2007, two (2) members of the

respondent Comelec (Chairman Abalos and Comm. Ferrer)

went to Gen. Santos City in South Cotabato to ostensibly

conduct a “fact-finding hearing” as Task Force Maguindanao.

It was a “fact-finding” hearing where Commissioner Ferrer

told all present that “we are not going to be

propounding questions on these Election Officers”.

(p. 6, TSN dated 20 June 2007, Annex “J” hereof) Also

attached as Annex “K” is a copy of the Affidavit of Atty. Leila

M. de Lima who was present in the proceedings and has

personal knowledge thereof.

20. On 21 June 2007, the herein petitioner filed a

verified Petition for Certiorari and Prohibition before the

Honorable Court assailing the convoluted merry-go-round

employed by the respondent Comelec, starting from

Comelec Ref. No. 07-091 to retrieve MCOCs for Maguindanao

as grave abuse of discretion. Petitioner prayed for a

Temporary Restraining Order to issue against Comelec to

 1

prevent it from continuing with its unprocedural acts in

Comelec Ref. No. 07-091. The petition was docketed as G.R.

No. 178168.

21. In the meantime, Task Force Maguindanao

collected twenty-one (21) MCOCs allegedly from the

municipalities of Maguindanao during its brief stay in Gen.

Santos City. Most, if not all, of these collected MCOCs were

marked “copy 2” which under pertinent Comelec Resolutions

is the “copy for the wall” (meant for public viewing for 48

hours after canvassing).

22. After bringing the collected MCOCs to Metro Manila,

the respondent Comelec, through Resolution No. 8195,

directed the SPBOC for Maguindanao “to conduct the

canvassing [of the collected MCOCs]” at Shariff Aguak,

Maguindanao. Respondent Comelec cites its policy embodied

in Resolution No. 8602 promulgated May 18, 2007, that “no

transfer of the canvassing venue from the provinces to

Manila shall be allowed”. A copy of the Resolution No. 8195

is attached hereto as Annex “L”.

23. The respondent Comelec, through the same

Resolution, then turned over the collected MCOCs to the

SPBOC of Maguindanao “for whatever it may be worth”.

(Ibid.)

24. On 22 June 2007, the respondent SPBOC of

Maguindanao issued notices relative to its reconvening on 25

 1

June 2007 in Shariff Aguak, Maguindanao. (Annex “M”

hereof) It turned out, however, that not all candidates were

notified. (par. 12, Affidavit, Annex “K”)

25. From June 25 to 26, 2007, upon instructions of the

NBC, the SPBOC for Maguindanao “re-canvassed” at Shariff

Aguak, Maguindanao the MCOCs collected by Comelec’s Task

Force Maguindanao. During the entire proceedings, the

counsels present, Atty. de Lima included, were not allowed to

ask any questions from the alleged Chairpersons of the

different MBOCs in the premises on the issues of due

execution and authenticity of the MCOCs, mostly copy 2,

then being presented for “recanvass”. The lawyers present

were also not allowed to propound questions to PES Bedol on

the fact of loss or the circumstances surrounding the alleged

loss of copy 1 of the MCOCs. Atty. de Lima’s repeated and

persistent motions to ask questions to PES Bedol and the

MBOC Chairs were consistently denied by respondent

SPBOC. This notwithstanding the fact that PES Bedol and

MCOC Chairs were subpoenaed to appear at the SPBOC

proceedings.

26. Petitioner’s counsel therefore made a continuing

objection common to all the COCs being canvassed, to wit:

a) the proceedings were illegal;

b) the MCOCs were palpably manufactured;

c) the results reflected in the MCOCs were

 2

statistically improbable;

d) there is no basis for saying the MCOCs were

authentic because there were no other available

copies for comparison purposes;

e) in most of the MCOCs no watcher signed;

f) there was no evidence or indication that the copy

2 MCOCs had been posted as intended by law;

g) the serial numbers of the MCOCs are not clearly

stamped;

h) copy 2 of the MCOCs cannot to be used for

canvass;

i) that the MCOCs are therefore, improper, unworthy

and unfit for canvass,

j) that the manner the “re-canvassing” which was

being done where the parties are not allowed to

ask questions was patently illegal; and

h) that it has not been established that the other copies

of the MCOCs have been lost.

26.1.All observations, manifestations and

objections raised by the counsels present, petitioner’s

counsel included, were simply noted by respondent

SPBOC.

26.2.Petitioner’s counsel manifested that she

would be raising these issues before the NBC.

 2

27. On June 28, 2007, the Honorable Court set the

petitioner’s application for Temporary Restraining Order for

oral arguments. On the same day, the Honorable Court

declined to issue a TRO.

28. On June 29, 2007, the second PCOC for

Maguindanao which was the product of the SPBOC for

Maguindanao’s “re-canvassing” at Shariff Aguak,

Maguindanao, was submitted to the NBC for canvass. It

reflects practically the same or essentially the same badges

of fraud as those observed from the old, excluded PCOC, to

wit: 18 candidates credited with zero votes, extremely high

voters’ turn-out (roughly 98%), certain Team Unity (“TU”)

candidates, including Zubiri, getting practically 98% of the

supposed actual votes cast. Interestingly, Zubiri, who was

ranked no. 3 (after 1st placer Singson and 2nd placer Pichay)

in the old, excluded PCOC, has become the topnotcher in the

second PCOC!

29. On the same day, the petitioner filed a Motion to

Withdraw Petition (G.R. No. 178168) in order to give his

counsel a free hand in the proceedings before the NBC and

forestall arguments of forum shopping and litis pendentia.

30. During these proceedings before the respondent

NBC, the same counsel for the Petitioner, Atty. Leila de Lima,

reiterated her request to propound questions to PES Bedol

and the MBOC Chairpersons, explaining to the NBC that her

 2

repeated motions before respondent SPBOC had consistently

been denied. Respondent NBC rejected such a plea. Atty. de

Lima made a motion to exclude the second PCOC of

Maguindanao and was barely stating her grounds when the

NBC cut her short, told her to sit down or else she would be

forcibly evicted from the session hall. (Kindly refer to Annex

“A” hereof. )

31. Atty. de Lima insisted on being heard on her

observations/objections relative to the second PCOC of

Maguindanao. When asked about the ground, Atty. de Lima

replied that the second PCOC does not reflect the true

results because it was based on the manufactured MCOCs,

mostly copy 2, whose authenticity and due execution have

not been duly established. The stated motion to exclude the

second PCOC from Maguindanao was quickly denied by the

NBC and the results as reflected on the second PCOC for

Maguindanao were included in the national canvass of votes

for Senators. As a result, the herein Petitioner’s lead in the

national canvass of votes for Senators, of more than 133,000

votes over private respondent Zubiri has been reduced to a

little over 4,000 votes with still more or less 80,000 votes left

uncanvassed. (Petitioner, as of this writing, is currently 12th

and Zubiri 13th in the ongoing national canvass of votes for

Senators.)

Certified true copies of the second PCOC with SSOV By

 2

of Maguindanao are hereto attached as Annexes “O” to “O-

4”, inclusive.

32. The authenticity and due execution of the COCs

being canvassed are valid issues during canvass

proceedings. As a matter of fact, the primary duty of the

NBC is to determine first the due execution and authenticity

of the said COC.

33. When the COCs of other provinces were being

canvassed at the NBC level, the interested parties, including

the herein Petitioner, were always allowed to ask questions

regarding the authenticity and due execution of the COCs

being canvassed.

34. Yet, there must be something special with the

MCOCs and PCOC of Maguindanao for no questions on their

authenticity and due execution have ever been allowed to be

asked and pursued at both the respondent SPBOC and

respondent NBC levels. Indeed, something must be very

special about the MCOCs and PCOC of Maguindanao that

something similar to a “gag order” has been put in place as

far as they are concerned.

35. In the evening of June 29, 2007, right after the

inclusion in the national canvass of the second PCOC of

Maguindanao, the NBC Chairman, Comelec Chairman

Benjamin Abalos, was caught in the company of the family of

Zubiri who is the main beneficiary of the inclusion of the

 2

Maguindanao results in the national canvass.

36. Under our Constitution, “No person shall be

deprived of life, liberty, or property without due process of

law, nor shall any person be denied the equal protection of

the laws.”

37. The totality of the above described actuations of

the NBC and the SPBOC for Maguindanao, which is the

creation and merely an agent of the NBC, show that all of

these are merely elaborate sham proceedings which have

virtually guaranteed that petitioner’s rights to due process

and the equal protection of the laws shall be for naught.

38. It is the most humble submission of the herein

Petitioner that he must be allowed by this Honorable Court to

substantiate his motion to exclude the second PCOC of

Maguindanao before the NBC. This, the Honorable Court can

do, as the guardian of the Constitution by annulling the

decision of the NBC to include the second PCOC of

Maguindanao in the national canvass for Senators and

ordering the NBC to comply with the constitutional

mandate to “hear before it condemns, and to proceed upon

inquiry before rendering judgment,” and to fully ascertain

the genuineness, due execution and worthiness of the

MCOCs from Maguindanao.

39. Hence, the instant resort to this special civil action

of certiorari and mandamus.

 2

GROUNDS TO ALLOW THE PETITION

I. The petitioner was denied his right to

due process of law when the respondent
SPBOC and the respondent NBC adopted
an unconstitutional procedure which
disallowed the petitioner the
opportunity to raise questions on the
COCs subject of the canvass.

II. The petitioner was denied his right to

equal protection of the law when the
respondent SPBOC and the respondent
NBC unconstitutionally adopted a
procedure of “no questions” in the
canvass of COCs from Maguindanao,
different from the procedure adopted in
the canvass of COCs from other
provinces/areas.

III. The respondent NBC acted with

manifest grave abuse of discretion when
it refused to exercise its broad, plenary
powers in fully or accurately
ascertaining due execution, authenticity
and fitness for the canvass of the
MCOCs collected by the Comelec in the
exercise of such broad plenary powers.
It violated its own rules when it
deprived petitioner of the right to
ventilate and prove his objections to the
Maguindanao COCs.

ARGUMENTS/DISCUSSION

The petitioner was denied

his right to due process of
law when the respondent
SPBOC and the respondent
NBC adopted a procedure
which disallowed the
petitioner the opportunity
to raise questions on the
COCs subject of the
 2

canvass.

Constitutional bodies, such as the respondent Comelec,

have both quasi-legislative or rule-making power and quasi-

judicial or administrative adjudicatory functions.

Not to be confused with the quasi-legislative or rule-

making power of an administrative agency is its quasi-

judicial or administrative adjudicatory power. The

administrative body exercises its quasi-judicial power when it

performs in a judicial manner an act which is essentially of

an executive or administrative nature, where the power to

act in such manner is incidental to or reasonably necessary

for the performance of the executive or administrative duty

entrusted to it. In carrying out their quasi-judicial functions,

the administrative officers or bodies are required to

investigate facts or ascertain the existence of facts, hold

hearings, weigh evidence, and draw conclusions from them

as basis for their official action and exercise of discretion in a

judicial nature.3

In the present case, the respondent Comelec, acting as

the NBC, as well as the respondent SPBOC has the duty to

“determine the authenticity, due execution, and

completeness of the COC” brought before it for canvass.

The duty to determine the authenticity, due execution

3
Smart Communications, Et. Al. vs. NTC (G.R. No. 151908; August 12,
2003) citing Bellosillo, J., Separate Opinion, Commissioner of Internal
Revenue, G.R. No. 119761, 29 August 1996
 2

and completeness of a COC is an exercise of quasi-judicial

function. In the furtherance of its duty, the respondent NBC

and SPBOC are required to ascertain the existence of facts,

weigh evidence and draw conclusions from them.

Since the duty to determine the authenticity, due

execution and completeness of a COC is an exercise of quasi-

judicial function, the respondents NBC and SPBOC are

required, by no less than the Constitution, to observe both

procedural and substantive due process.

It is well-settled that in administrative proceedings, due

process has been recognized to include the following: (1)

the right to actual or constructive notice of the institution of

proceedings which may affect a respondent’s legal rights;

(2) a real opportunity to be heard personally or with

the assistance of counsel, to present witnesses and

evidence in one’s favor, and to defend one’s rights;

(3) a tribunal vested with competent jurisdiction and so

constituted as to afford a person charged administratively a

reasonable guarantee of honesty as well as impartiality;

and (4) a finding by said tribunal which is

supported by substantial evidence submitted for

consideration during the hearing or contained in the

records or made known to the parties affected.4

In this regard, denial of procedural due process has

4
Air Manila, Inc. vs. Balatbat, 38 SCRA 489, 492, April 29, 1971
 2

been defined as the total lack of opportunity to be heard or

to have one’s day in court.5

In the matter of the MCOCs from Maguindanao, the

petitioner has been denied procedural due process

because he was not given any real opportunity to be heard

or to have his day in court to show that the MCOCs are

manufactured and unfit for canvass.

At this point, it bears emphasis to state that the reason

why the respondent Comelec has canvassed mostly “copy

two” MCOCs is because allegedly all the other copies of the

MCOCs (including the copy for the Commission) has been

lost.

Yet, there has never been any hearing, fact-finding or

otherwise where the fact of loss of all the other six (6)

copies of the MCOCs has been established.

Furthermore, there has never been any session in the NBC or

in the SPBOC where the local election officers have officially

informed the respondent Comelec of the fact of loss of all

the other six (6) copies of the MCOCs and explained

the circumstances surrounding the loss.

It, therefore, becomes incumbent on the respondent

NBC and SPBOC, in the performance of its duty to determine

the authenticity of these copies two MCOCs, to first inquire

into the alleged loss. This is a crucial element of due

5
J.D. Legaspi Construction, et al., v. NLRC, G. R. No. 143161, 2 October
2002; Development Bank of the Philippines v. NLRC, Ong Peng, et al., 218
SCRA 183, 1993
 2

process.

Not only have the respondents NBC and SPBOC

miserably failed in this determination of the alleged loss

motu proprio, its simultaneous acts of preventing an

interested party such as a petitioner from assisting in the

determination of the authenticity of these copy two MCOCs,

and the determination of the veracity of the alleged loss of

the six (6) other copies only goes to show that the denial of

due process and violation of the Constitution is deliberately

employed.

First, when the MCOCs were collected by the

respondent Comelec (through its Task Force Maguindanao)

from the various Election Officers, no questions were allowed

to be propounded to said Election Officers, and the

proceedings were relegated into a mere “retrieval” session

which was terminated in an hour or so. (p. 6, Annex “J”

hereof; also par. 4, Annex “K” hereof)

Second, when the MCOCs were to be “canvassed” by

the respondent SPBOC, the latter also adopted a “no

questions” rule. According to Atty. de Lima:

“xxx.

“18. I countered by saying that the fact of

loss of copy 1, or the MBOC copy and the
circumstances surrounding such loss, if at all,
have never been established much less explained
before the NBC, or any proceedings for that
matter, not even before the Task Force-
Maguindanao. Granting arguendo that it was so
 3

established before the Task Force-Maguindanao,

the same cannot bound the proceedings before
both the NBC and SPBOC which have no notice
or record of the proceedings of the Task Force-
Maguindanao.

“19. In this regard, I moved to ask questions

to PES Bedol on the factual issue of the alleged
loss of copy 1 or MBOC copy and the
circumstances surrounding such loss. Atty.
Brillantes joined in my motion. The SPBOC
through Atty. Santos denied our motion, as well as
our plea for reconsideration, ruling that the
SPBOC is without authority to allow such
questioning. It noted likewise the absence of PES
Bedol during the proceedings, prompting Atty.
Brillantes and I to inform the SPBOC that we saw
PES Bedol before the start of the proceedings.

“20. Over our continuing objection as to the

propriety of considering for canvass copy 2 or any
other copy, without the fact of loss of copy 1 being
duly established, the SPBOC then proceeded to
canvass the MCOCs, beginning with that from
South Upi. After examining the MCOC, copy 2,
with SSOV and SOV, and stating for the record
observations relative thereto, I requested that I
be allowed to ask questions to the MBOC’s Third
Member, or the one who produced the
documents. I made the same request relative to
the other two (2) MCOCs, namely, from Shariff
and Buluan, presented for canvassing on June 25,
or the first day of canvassing.

“21. Zubiri’s counsel initially interposed no

objection to my and Attys. Brillantes and
Colmenares’ motion to ask questions to the
MBOC Chairpersons provided that the same be
confined to the issues of authenticity and due
execution. Inspite of such lack of objection, the
SPBOC denied our motion.

“22. We moved for reconsideration of the

ruling, stressing the necessity and importance of
allowing questions to be asked to the MBOC
Chairpersons on the matter of due execution and
authenticity of the copies being presented, mostly
copy 2, or the wall copy, especially in light of the
total absence or unavailability of any other copy,
 3

including copy 1. I further stressed that we need

to know from the MBOC Chairpersons concerned
whether there are indeed no other copy of the
MCOCs and also the source, basis, date and
manner of preparation, handling and custody of
copy 2 of the MCOCs as would shed light on their
fitness or reliability for canvassing purposes.

“23. The SPBOC consistently denied our

plea for reconsideration, stating that our request
to ask questions to the MBOC Chairpersons be
directed instead to the NBC. I was constrained to
make a continuing objection to the validity of the
proceedings on account of the consistent refusal
of the SPBOC to allow us to ask questions to the
MBOC Chairpersons. I also made a continuing
reservation, and noted by the SPBOC, to make
same motion/request before the NBC.” (Annex
“K” hereof)

Third, when the PCOC tabulated from the MCOCs by

the respondent SPBOC was brought to the respondent NBC,

again the petitioner was prevented from asking questions

from the SPBOC Chair, Atty. Emilio Santos, and was

prevented from presenting evidence casting doubts on the

authenticity of the MCOCs retrieved from the Task Force

Maguindanao and which were the basis of the tabulation

made by the respondent SPBOC. (Annex “A” hereof)

These acts of the respondents have resulted in a denial

of procedural due process, and are thus unconstitutional.

Clearly, the petitioner was not given a real opportunity to

show that the MCOCs collected by Task Force Maguindanao

and canvassed by the respondent SPBOC were not authentic,

were manufactured and should be excluded.

Furthermore, there is also a denial of substantive due

 3

process when the respondent NBC hastily turned over the

MCOCs to the SPBOC without substantial evidence or any

basis for its determination that the same were fit to be

canvassed.

As previously pointed out, the MCOCs collected by the

Task Force Maguindanao are merely copy two MCOCs. There

are supposed to be six (6) other copies. To say that the loss

by all twenty two (22) Municipal Boards of Canvassers of all

the six (6) other copies of the MCOCs is highly irregular, is

an understatement. Faced with this anomaly, which is

unprecedented in the annals of Philippine election history,

the least that the respondent NBC should have done is to

first inquire into the circumstances of the alleged loss of all

the other copies, before accepting the copy two MCOCs for

canvass.

The respondent NBC did not do anything like this. It did

not require the Municipal election officers to submit any

explanation. It did not allow the petitioner to ask questions.

In fact, the NBC accepted the MCOCs and ruled them

authentic and fit for canvass without any substantial

evidence or any real investigation.

The respondent NBC, therefore, likewise failed to

comply with the requirements of substantive due process.

Substantive due process requires that the finding of the

respondents be supported by substantial evidence

 3

submitted for consideration during the hearing or contained

in the records or made known to the parties affected.

In this case, no such substantial evidence was first

presented during any hearing of the Task Force Maguindanao

nor contained in any Report or records made known to

petitioner.

The petitioner was clearly deprived of his right to

procedural and substantive due process by the above-

described acts of the respondents. The said acts are

therefore unconstitutional and may be corrected by a writ of

certiorari issued by the Honorable Court.

The petitioner was denied

his right to equal
protection of the law when
the respondent SPBOC and
the respondent NBC
unconstitutionally adopted
a procedure of “no
questions” in the canvass
of COCs from
Maguindanao, different
from the procedure
adopted in the canvass of
COCs from other
provinces/areas.

Equal protection of the law contemplates equality in the

enjoyment of similar right.

“Any government act that militates against the ordinary

norms of justice or fair play is considered an infraction of the

great guaranty of due process.” (Isagani A. Cruz,

 3

Constitutional Law, 1995 ed., p. 95)

“The closed mind has no place in the open society. It is

part of the sporting idea of fair play to hear ‘the other side’

before an opinion is formed or a decision is made by those

who sit in judgment. xxx A judgment based on less than this

full appraisal, on the pretext that a hearing is unnecessary

or useless, is tainted with the vice of bias or intolerance or

ignorance, or worst of all, in repressive regimes, the

insolence of power.” (Ynot case)

Unfortunately, the rudiments of fair play were denied

petitioner during the canvass proceedings before the

respondents SPBOC and NBOC.

As stated, petitioner’s motion to ask questions from PES

Bedol on the factual issue of the loss of copy 1 or MBOC copy

of the Maguindanao MCOCs, and the circumstances

surrounding such alleged loss was rejected by respondent

SPBOC. Respondent SPBOC also consistently denied

petitioner’s repeated request to propound questions to the

MBOC Chairpersons on the issue of due execution and

authenticity of the MCOCs, mostly copy 2 or copy for the

wall.

And, when the second PCOC with supporting SSOV By

Mun. of Maguindanao was presented for canvass before the

NBC, the latter likewise rejected petitioner’s plea, consistent

 3

with the continuing reservation made before the SPBOC, to

summon PES Bedol and the MBOC Chairpersons and answer

questions from petitioner. Worse, even the SPBOC Chair

himself, Atty. Santos, was not allowed to be asked questions.

It has been the standard procedure in the ongoing

senatorial canvass before the NBC that the members of the

PBOC concerned, especially the Chairperson, are present for

possible questioning in the course of the canvassing of the

PCOC concerned. There have been occasions that, indeed,

the PBOC Chairpersons concerned were asked varied

questions relative to the preparation, execution, condition,

data and entries of the PCOC concerned.

PES Bedol himself, in his capacity as then Chairperson

of the old PBOC of Maguindanao, was not spared such

questioning from various counsels. (Pls. refer to Annex “B”

hereof, at pp. 8-14, 19-26)

Such a procedure of making available for possible

questioning the PBOC Chairpersons concerned is but an

essential and integral part of canvass proceedings. The

primary duty of any canvassing board is to make sure that

the electoral documents before it truly and accurately reflect

the results of the election, and that the documents have

been duly executed and are authentic. The persons who are

in the best position to answer questions relative to the due

execution and authenticity of the documents being

 3

presented for canvass before a higher board, as the NBC and

SPBOC, are the PBOC Chairperson and the MBOC

Chairpersons concerned, as the case may be.

Respondent NBC’s act in denying petitioner the right to

propound questions to the election officials concerned in the

canvass of the Maguindanao COCs in certainly violative of

petitioner’s right to equal protection of the law.

The respondent NBC acted

with manifest grave abuse
of discretion when it
refused to exercise its
broad, plenary powers in
fully or accurately
ascertaining due
execution, authenticity
and fitness for the canvass
of the MCOCs collected by
the Comelec in the
exercise of such broad
plenary powers. It
violated its own rules
when it deprived
petitioner of the right to
ventilate and prove his
objections to the
Maguindanao COCs.

The NBC’s primary task as a canvassing board is to

determine the due execution and authenticity of the COCs

presented before it for canvass. The guidelines and

parameters for such determination has been laid down in the

amendatory provisions of Republic Act No. 9369, to wit:

“SEC. 37. Section 30 of Republic Act No.

7166 is hereby amended to reads as follows:
 3

“SEC. 30. Congress as the National Board of

Canvassers for the Election of President and Vice
President: The Commission en banc as the
National Board of Canvassers for the election of
senators: Determination of Authenticity and Due
Execution of Certificates of Canvass. – Congress
and the Commission en banc shall determine the
authenticity and due execution of the certificate
of canvass for president and vice-president and
senators, respectively, as accomplished and
transmitted to it by the local boards of
canvassers, on a showing that: (1) each certificate
of canvass was executed, signed and
thumbmarked by the chairman and members of
the board of canvassers and transmitted or
caused to be transmitted to Congress by them; (2)
each certificate of canvass contains the names of
all the candidates for president and vice-
president or senator, as the case may be, and
their corresponding votes in words and in figures;
(3) there exists no discrepancy in other authentic
copies of the certificates of canvass or in any of
its supporting documents such as statement of
votes by city/municipality/by precinct or
discrepancy in the votes of any candidate in
words and figures in the certificate; and (4) there
exists no discrepancy in the votes of any
candidate in words and figures in the certificate
of canvass against the aggregate number of votes
appearing in the election returns of precincts
covered by the certificate of canvass: Provided,
That certified print copies of election returns or
certificates of canvass may be used for the
purpose of verifying the existence of the
discrepancy.”

“When the certificate of canvass, duly

certified by the board of canvassers of each
province, city of district, appears to be
incomplete, the Senate President or the Chairman
of the Commission, as the case may be, shall
require the board of canvassers concerned to
transmit by personal delivery, the election returns
from polling places that were not included in the
certificate of canvass and supporting statements.
Said election returns shall be submitted by
personal delivery within two (2) days from receipt
of notice.
 3

“When it appears that any certificate of

canvass or supporting statement of votes by
city/municipality or by precinct bears erasures or
alterations which may cast doubt as to the
veracity affect the result of the election, upon
request of the presidential, vice-presidential or
senatorial candidate concerned or his party,
Congress or the Commission en banc, as the case
may be, shall, for the sole purpose of verifying the
actual number of votes cast for President and
Vice-President or senator, count the votes as they
appear in the copies of the election returns
submitted to it.

“In case of any discrepancy, incompleteness,

erasure or alteration as mentioned above, the
procedure on pre-proclamation controversies
shall be adopted and applied as provided in
Sections 17, 18, 19 and 20.

“xxx.”

In implementation of the above provision, the Comelec

En Banc promulgated its Resolution No. 7967 prescribing the

canvassing rules for the senatorial and Party List votes.

(Annex “P” hereof) Section 7 thereof laid down the

canvassing procedure in case of any discrepancy,

incompleteness, erasure or alteration in the COCs presented

for canvass. Essentially, the procedure is for the candidate

concerned to make oral observations/manifestations with

simultaneous filing of a verified petition. The NBC shall then

determine whether it is a proper case of discrepancy,

incompleteness and/or erasure or alteration. If so, canvass

of the contested COC is deferred to allow the candidate

concerned to submit supporting evidence within 24 hours,

 3

and any contested party to file written and verified

opposition, after which the NBC shall render a ruling.

In the case of the Maguindanao COCs, the original

PCOC had been set aside by the NBC on the ground, among

others, of bearing statistically improbable results. On mere

oral objections by several candidates, NBC ordered it

excluded from canvass and created the SPBOC for the

purpose of canvassing or recanvassing its source documents,

the MCOCs, with SSOVs and SOVs, if available and found

authentic. The NBC invoked its plenary authority in

excluding the original PCOC.

MCOCs, mostly copy 2, mysteriously surfaced and

retrieved by the Task Force-Maguindanao without due inquiry

into their origins and custody prior to submission to it by the

EOs concerned. Again, in retrieving such documents,

respondent Comelec invoked its broad, plenary powers of

ascertaining the true results of the elections.

But when, however, said copies of the MCOCs have

been presented for canvass or “recanvass” before the

SPBOC, respondent Comelec has refused to exercise the

same broad plenary powers of fully determining their fitness

for canvassing purposes.

Petitioner’s various manifestations and objections were

merely noted. Petitioner’s repeated plea to propound

questions to PES Bedol and the MBOC Chairpersons were

 4

consistently rejected.

Respondent SPBOC readily accepted copy 2 of the

MCOCs for canvass without due and proper determination of

their due execution and authenticity, particularly in the light

of the glaring fact that there are no other available copy of

the MCOC for each municipality. Copy 2 (and a few copy 5,

4 and 3) are a singular, lonesome copy for each COC. There

are no other available copies to which the same can be

compared and discrepancies, if any, may be identified.

Copy 2, or copy for the wall, was not meant to be used

for canvass. If at all it can be considered for canvass, its

fitness must be first duly established. More importantly, the

loss or unavailability of copy 1 or other copies, such as copy

3 (for Comelec) and 4 (copy kept by the MBOC Chair) must

also be first duly established.

None of such determination was made by the

respondent SPBOC. The latter’s omission was duplicated

and compounded by respondent NBC’s own refusal to allow

petitioner to ventilate and prove his objections to the second

PCOC of Maguindanao.

Petitioner’s insistence before the NBC to ask questions

from PES Bedol, the MBOC Chairpersons, and Atty. Santos

also fell on deaf ears. Petitioner’s counsel was barely in the

process of making her verbal observations/manifestations

relative to the second PCOC as a prelude to a subsequent

 4

filing of an appropriate written pleading when the NBC cut

her short. She was stating for the record observations

tending to substantiate petitioner’s objection to the PCOC as

manufactured when the NBC tersely stopped such attempt,

stating that it could only entertain objections relative to

discrepancy, incompleteness, erasures and alterations.

But, an objection anchored on manufactured COCs or

results is worse than cases of discrepancy, incompleteness,

erasures and alterations. A manufactured COC necessary

entails total or complete alterations of documents!

Indeed, petitioner’s counsel was starting to cite

conflicting and variant data/entries in the supporting SOV By

Mun. vis-à-vis the Minutes of the old PBOC of Maguindanao,

relative to the number of voters who actually voted in each

of the various municipalities of Maguindanao. (Annexes “O-

1” to “O-4”, in relation to the attachments of Annex “F”

hereof) But counsel was rudely declared out of order.

If allowed to say her piece, counsel would have

established the palpable fact that the number of voters who

actually voted in most of the municipalities as appearing on

the SSOV By Mun. (as culled from the municipal SSOVs which

accompanied the MCOCs) were padded in order to justify,

support and conceal the padded votes for private

respondent Zubiri in the manufactured MCOCs.

By unceremoniously depriving petitioner’s counsel of an

 4

opportunity to verbally make her objections, the NBC had

also deprived counsel of the right and opportunity to file

appropriate written petitions. The NBC had grossly violated

its own rules. In the process, it abdicated its sworn

constitutional duty of fully ascertaining the true and correct

results of the voting and counting in Maguindanao through a

prior determination of the due execution and authenticity of

the MCOCs.

ALLEGATIONS IN SUPPORT OF THE

APPLICATION FOR TEMPORARY RESTRAINING
ORDER AND/OR STATUS QUO ANTE ORDER

Petitioner assails the proceedings of the Special

Provincial Board of Canvassers (SPBOC) for Maguindanao

held from June 25 to 27, 2007. These proceedings involved

the canvass of the Municipal Certificates of Canvass

(“MCOCs”) collected by the Commission on Elections in

General Santos City during its supposed fact-finding and the

eventual execution of a new/second Provincial Certificate of

Canvass (PCOC) for Maguindanao. Petitioner was denied his

right to due process of law and equal protection of law in

those proceedings of the SPBOC as described and discussed

above.

Petitioner likewise assails the proceedings and acts of

the National Board of Canvassers (NBC) starting on June 29,

 4

2007. In these proceedings, the NBC included in the national

canvass of votes for Senators the new/second PCOC for

Maguindanao. To compound the deprivation of petitioner’s

right to due process and equal protection of law in the

SPBOC, the NBC likewise deprived the petitioner of his right

to due process of law and equal protection of law in

proceedings in the NBC as described and discussed above.

The petitioner is entitled to the relief prayed for, as a

result of the unconstitutional and illegal acts of the

respondents, and the whole or part of said relief consists in

ANNULLING the proceedings of the respondent SPBOC for

Maguindanao from June 25 to 27, 2007 as well as the

proceedings and acts of the NBC starting on June 29, 2007

which led to the inclusion in the national canvass of votes for

Senators of the election results indicated in the new/second

PCOC for Maguindanao.

Because of the unconstitutionality and illegality of the

acts and proceedings of the SPBOC and NBC, the Honorable

Court is likewise justified in Ordering the NBC, either directly

or through its deputy, the SPBOC, to allow the Petitioner to

exercise his right to due process of law. The petitioner is

entitled to the opportunity to prove his objections to the

authenticity and due execution of the MCOCs being

canvassed and to propound questions to the members of the

old Provincial Board of Canvassers for Maguindanao and of

 4

the various Municipal Boards of Canvassers of Maguindanao.

The public respondents, after depriving the petitioner of

his right to due process and equal protection of the law, are

now rushing to terminate their canvass proceedings in order

to proclaim the private respondent as the 12th winning

senatorial candidate. The anticipated hasty termination of

canvass proceedings and the imminent proclamation of the

private respondent will work grave and irreparable injury on

the petitioner and to the millions of people who voted for

him expecting the proclamation of winners based on the

cleanest count that the respondent NBC could possibly

undertake.

The Honorable Court has established the rule that

irreparable injury is not such injury as is beyond the

possibility of repair, not necessarily great injury or great

damage, but that specie of injury, whether great or small,

that ought not to be submitted to on the one hand or

inflicted on the other. Irreparable injury has also been

defined as one of such constant and frequent recurrence that

no fair or reasonable redress can be had in a court of law.

As the petitioner has discussed above, the public

respondents have deliberately and systematically employed

a procedure or scheme which resulted in a deprivation of

petitioner’s constitutional right to due process and equal

protection of the law. The anticipated hasty termination of

 4

the Senatorial canvass and the imminent proclamation of

private respondent based on such unconstitutional

proceedings definitely constitute grave and irreparable injury

which petitioner has been forced to submit to.

While at the moment, after the latest canvass of votes

made on July 2, 2007, petitioner still leads private

respondent Zubiri by more than 2,000 votes, the same is

expected to be eradicated once the votes from the few

remaining COCs are canvassed. The canvass of such

remaining votes has been set for tomorrow, July 5, 2007.

But it bears emphasis that the petitioner’s overwhelming

lead over private respondent Zubiri was only wiped out by

the inclusion in the national canvass of the controversial and

highly questionable new/second Maguindanao PCOC.

It bears emphasis to state that all the sacrifices and

even loss of life, which all our teachers and other election

officers all over the other provinces of the Philippines have

endured to ensure free and honest elections and more

importantly honest and clean canvass of results shall be

rendered for naught, and in vain, by the acts and

proceedings of a handful of unsavory characters.

If the public respondents would be permitted to hastily

terminate the national canvass and proceed to proclaim

private respondent Zubiri, which the public respondents,

their agents and representatives are doing, threatening, or

 4

are about to do or procuring to be done in violation of

petitioner’s rights, then this would render ineffectual

whatever judgment is rendered herein.

Petitioner has no other plain, speedy or adequate

remedy in law at this time and he is willing to post a bond, if

the court deems it necessary, for the issuance of the

temporary restraining order and/or status quo ante order

against public respondents.

PRAYER

WHEREFORE, premises considered, PETITIONER most

respectfully prays that this Honorable Court:

1. Forthwith ISSUE A TEMPORARY RESTRAINING

ORDER enjoining the respondent Commission on Elections

en banc sitting as the National Board of Canvassers for

Senators for the May 14, 2007 elections (“NBC”) from

proceeding with any proclamation (of the twelfth and last

winner of the May 14, 2007 Elections for Senators) based on

the on-going senatorial canvass which includes the

new/second Provincial Certificate of Canvass of

Maguindanao, until further orders from this Court, or, in the

alternative, in the event that the proclamation of Respondent

Zubiri is made before the application for a TRO is acted

upon, ISSUE A STATUS QUO ANTE ORDER requiring the

parties to observe the status quo at the time of the filing of

 4

the Petition, in order to maintain and preserve the situation

of the parties at the time of the filing of this Petition, so as

not to render the issues raised in this Petition moot and

academic;

2. After proper proceedings, RENDER JUDGMENT:

(a) ANNULLING AND SETTING ASIDE for being

unconstitutional and illegal the proceedings and acts of

respondent Commission on Elections en banc sitting as the

National Board of Canvassers for Senators for the May 14,

2007 elections (“NBC”) of including, on June 29, 2007, in the

national canvass of votes for Senators the results from the

Province of Maguindanao as reflected in its new/second

Provincial Certificate of Canvass as well as the proceedings

and acts of the respondent Special Provincial Board of

Canvassers for Maguindanao (“SPBOC”) in canvassing or “re-

canvassing” the collected MCOCs, on June 25, 26 and 27,

2007, leading to the preparation of the new/second PCOC for

Maguindanao, and (b) COMPELLING or ORDERING

respondent NBC and its deputy, the SPBOC, to perform their

ministerial constitutional duty of fully determining the due

execution and authenticity of the MCOCs, including, but not

limited to, allowing petitioner to substantiate his claim of

manufactured results and propound questions to the officers

concerned, primarily, the Chairpersons of the former PBOC

and SPBOC of Maguindanao and the Chairpersons of the

 4

Municipal Boards of Canvassers of Maguindanao.

Petitioner also prays for other reliefs, just and equitable,

under the premises.

Quezon City for Manila, 4 July 2007.

DE LIMA & MEÑEZ

LAW OFFICES
Counsel for Petitioner Aquilino L. Pimentel
III
131 Panay Avenue, 1103 Quezon City

By:

LEILA M. DE LIMA
PTR No. 8438426; 1/04/2007; Quezon City
IBP No. 568943; 1/04/2007; Camarines
Sur
Roll of Attorneys No. 34328
 4

EXPLANATION ON SERVICE BY REGISTERED MAIL

Due to time, distance and manpower constraints,

copies of this PETITION (With Urgent Prayer For
Temporary Restraining And/Or Status Quo Ante Order)
were served on the other parties by registered mail.

LEILA M. DE LIMA

COPY FURNISHED:

COMMISSION ON ELECTIONS SITTING AS THE

NATIONAL BOARD OF CANVASSERS
c/o HON. BENJAMIN S. ABALOS, SR., Chairman
Respondent
Palacio del Gobernador, Intramuros, Manila

SPECIAL PROVINCIAL BOARD OF

CANVASSERS FOR MAGUINDANAO
c/o Atty. Emilio S. Santos, Chairman
Respondent
Commission on Elections
Palacio del Gobernador, Intramuros, Manila.

ATTY. GEORGE ERWIN GARCIA

Counsel for Private Respondent Juan Miguel F. Zubiri
Ground Floor, Laiko Bldg., Cabildo St.
Intramuros, Manila.

THE SOLICITOR GENERAL

134 Amorsolo Street, Legaspi Village
1229 Makati City

E30-Pimentel(Petition for Certiorari and Mandamus)/lml-July2007

owen