Election Lawyer Romulo Macalintal filed a petition to stop the June 2 special election in the fifth district of Negros Occidental before the Supreme Court at 10:20 a.m. yesterday, but it is not stopping the Commission on Elections from going ahead with preparations for the polls.

Election provincial supervisor Jessie Suarez said “anything is possible, but as long as there are no orders from Manila we have to continue our activities in order to be ready for June 2.”

The special election for a new congressman of the fifth district is being held following the death of Rep. Ignacio Arroyo Jr. on January 26.

Suarez said the fifth district voters lists for posting, watchers’ identification cards, COMELEC passes and forms for the Board of Election Inspectors in the fifth district have already arrived, and a gun ban is up in the area.

“A COMELEC command conference with the Army and police is set May 10 but we do not expect any hotspots in the fifth district during the special election,” he added.

Suarez said he expects the printing of the June 2 poll materials to be completed by next week.

Macalintal’s petition for “certiorari and prohibition with extremely urgent application for issuance of status quo order and writ of preliminary mandatory injunction, and for the conduct of a special raffle of the case”, a copy of which he sent the DAILY STAR, named the COMELEC and House of Representatives through Speaker Feliciano Belmonte Jr. as respondents

The election lawyer, who filed the petition, on his behalf as a taxpayer, reiterated that the holding of the special election on June 2 “is illegal because it will be held beyond the period as provided for by law.”
Pending resolution of his petition, Macalintal also asked the court to issue a temporary restraining order to prevent Comelec from disbursing funds in connection with the said special elections.

The COMELEC has allocated P21.6 million for the special election and Suarez said he believes almost half of it has already been spent for the poll materials needed for June 2.

In a 24-page petition filed with the SC, Macalintal, with lawyer Antonio Carlos Bautista, said that Section 4 of Republic Act No. 7166 provides that in case of a special elections to fill a vacancy in the House of Representatives, it “shall be called and held not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy.”

Since Arroyo died on January 26, the earliest date such special election could be held was last March 26 – the 60th day after the occurrence of the vacancy, on the death of Arroyo; and the latest date it could be held would be on April 25 – the 90th day after the occurrence of such vacancy, pursuant to R. A. 7166, Macalintal said.

The COMELEC received on March 13 House Resolution No. 248 dated March 12, certifying the existence of the vacancy in the House with the death of Arroyo on January 26 and calling for a special election to fill such vacancy.
Macalintal told the court that by setting the polls on June 2, the COMELEC “is still mistakenly applying Section 2 of R. A. 6645 where the 90-day period to hold the special election is reckoned from the date it received a resolution or communication from the House of Representatives certifying to the existence of such vacancy.

But such provisions of R. A. 6645 had already been repealed by Section 4 of R. A. 7166 where the 90-day period is reckoned from the occurrence of the vacancy.”

In other words, he said, Section 4, of R. A. 7166 fixed the reckoning or reference date in counting the period for conducting such special election “after the date of the occurrence of the vacancy” and not“from the date of issuance by the House of a resolution certifying the
existence of the said vacancy’ as provided under Section 2 of R. A. 6645 which, as stated, has already been amended by R. A. 7166”.

To support his argument, Macalintal cited the Jan. 21, 2004 case of Tolentino vs. COMELEC where the Supreme Court held that “Section 2 of R. A. 6645 has been amended by R. A. 7166 which makes mandatory the requirement for COMELEC to call such special elections not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy.” Clearly, the COMELEC committed grave abuse of discretion when it
scheduled the special election on June 2 which is 128 days after the occurrence of the vacancy, Macalintal
told the SC.

COMELEC spokesman James Jimenez, on the other hand, said the COMELEC does not agree with Macalintal that the holding of the special election in the fifth district is illegal.

He said the COMELEC, in cases of special elections, has always based the counting of a vacancy from the time the House declares it.

Binalbagan Mayor Alejandro Mirasol and Board Member Emilio Yulo III are among the contenders for the fifth congressional seat on June 2.

Yulo said he was a little bit surprised that Macalintal filed the petition this late in the day as the announcement of the holding of the special election had been made much earlier.

It is a question of the interpretation of the law that we will leave to the discretion of the Supreme Court, he said.

Mirasol yesterday said it is the right of Macalintal to file the petition, it will be up to the SC to rule on it.

Macalintal in the past had served as election lawyer of former President Gloria Macapagal-Arroyo.*CPG

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