VP ‘shading’ ready for ruling – finally

The crucial issue of whether the 50-percent shading rule should be changed to 25 percent (or to some other rule) in the election protest of former senator Bongbong Marcos against Vice President Leni Robredo is now finally ready for ruling by the Presidential Electoral Tribunal (PET) after the Office of the Solicitor General (OSG) submitted its “Comment.”

As background, the automated machines counted ballots that were 25-percent shaded. However, the PET has ruled that only those shaded to the extent of 50 percent should be considered, thereby unintentionally disenfranchising those who shaded their ballots between the “25- and 50-percent gap.”

To avoid this disenfranchisement, my June 14 column backed a reversion to the 25-percent threshold. However, the PET could not act promptly on the proposed remedy because it did not receive the “Comment” of the OSG, as counsel for the Commission on Elections (Comelec), within 10 days, or until May 27.

Instead, the OSG asked for an extension of 15 days, up to June 11. Though granted “with a warning that no further extension will be given,” the OSG yet again asked for another 15 days, up to June 26, and then again for another 15 days, up to July 11.

It is difficult to understand why the OSG kept on asking for extensions, despite the PET’s warning, given that its client has already submitted to the PET a copy of its resolution confirming the use of the 25-percent threshold in counting the ballots at the precincts.

True, the OSG is saddled with a heavy workload (what agency is not?) but election cases are given ultra-high priority by law. And to be fair, Bongbong dutifully filed his comment defending the 50-percent rule within the original 10-day period, without challenging the genuineness and due execution of the Comelec resolution.

Finally, and at last, the OSG filed its Comment on Friday supporting Bongbong’s stance, saying its client, the Comelec, cannot impose its resolution on the PET. This is still a positive development that should lead to an early PET ruling.

I also proposed in my said column that “the better remedy… is just to rerun the secured data cards or SD cards that contain digital copies of all the ballots… These… have been used in election contests in which the ballots have been destroyed, mutilated, rained on or otherwise could no longer be read manually, as in the 2010 mayoralty protest (Tinga vs Cayetano) in Taguig City.”

The last sentence drew a pained letter (printed by the Inquirer on June 26) from retired Justice Dante O. Tinga, averring, “The simple truth is the ballots were intact as they were kept inside the auditorium of the Taguig City Hall, but the Cayetano camp had doggedly resisted the retrieval of the ballots…”

I promptly responded with a quote from the Inquirer issue on Oct. 5, 2012, that the “Comelec, in Tinga vs Cayetano, used the SD cards, then known as the compact flash cards or CFC, not the actual printed ballots” in deciding that case.

Nonetheless, J Tinga flashed out a second letter, dated June 29, insisting thus: “In resorting to the images supposedly decrypted from the CFCs instead of revising the ballots, the Comelec… violated its own rule which requires the revision of the ballots first and foremost…”

I cannot affirm this because his appeal against the Comelec was dismissed by the Supreme Court for “being moot and academic.”

But granting arguendo that his ballots were indeed “intact” does not necessarily negate the “better remedy.” Verily, a resort to ballot images could speedily settle the threshold issue and, at the same time, guide lower courts in quickly deciding cases in this digital age without resorting to the snail-paced processes of a bygone era.

While decrypted images “theoretically may be altered,” as J Tinga claims, so may physical ballots also be, as they have been, falsified or tampered. But there are ways of cheat-proofing digital images as there are for paper ballots. If still unsatisfied, he can maintain his views, while I stay with mine.

Regarding the late breaker that the PET required the Board of Election Inspectors to explain alleged “irregularities” in some precincts in Camarines Sur, I will await the explanations, in the same way I did not write on the “shading” till the Comelec submitted to the PET the relevant documents on this public interest matter.

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