Options in Bongbong-Leni VP row

The ongoing election protest filed by former senator Bongbong Marcos against Vice President Leni Robredo in the Supreme Court, in its capacity as the Presidential Electoral Tribunal (PET), is once again in the headlines.

To recall, Bongbong protested the voting results in 25 provinces and five cities involving about 39,000 clustered precincts. Moreover, he claimed that the recount and revision of the ballots in three “pilot” provinces—Camarines Sur, Iloilo and Negros Occidental—would “best exemplify” the frauds and irregularities raised in his protest.

However, Leni, speaking via her main counsel, Romulo B. Macalintal, now argues that the protest should be summarily dismissed because the actual recount and revision of the ballots in these three areas showed that her original lead of 263,473 votes over Bongbong has in fact increased by “about 15,000 more votes.”

She bases her argument on Rule 65 of the PET Rules which in part states that if, after getting the results of the recount in the pilot provinces, “the Tribunal is convinced that… the protestant… will most probably fail to make out his case, the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.”

She insists that in the past, the PET—as well as the Senate Electoral Tribunal, House of Representatives Electoral Tribunal, Commission on Elections (Comelec) and lower courts—have always dismissed election protests where the recount in the “pilot” areas failed to demonstrate a “substantial recovery.”

Bongbong, through his lead counsel George Erwin Garcia, counters that the recount in the pilot provinces was made only in relation to the “Second Cause of Action” of his protest. A dismissal, he adds, cannot be ordered because he has a “Third Cause of Action” that seeks to annul all the votes cast in Maguindanao, Lanao del Sur and Basilan due to “terrorism, threats, intimidation, and harassment of voters as well as pre-shading of ballots in all of the 2,756 clustered precincts.”

(On Aug. 29, 2017, the PET dismissed the “First Cause of Action” for “judicial economy” since it was based on the same grounds and evidence as the second and third causes.)

Moreover, Bongbong explains that the Comelec already conducted in another case a “technical examination” or TE of the ballots in 200 of these 2,756 precincts; that the said TE proved the alleged “terrorism, etc.”; and that, thus, it should be used to annul the entire election results in these three provinces as if no election was held.

I think four options are available. The first is to dismiss the protest outright because, to quote Rule 65, “the protestant… will most probably fail to make out his case.”

Second, continue the proceedings on the “Third Cause of Action,” adopt the TE of the 200 precincts conducted by the Comelec in another case, and if sufficient to overcome Leni’s lead, proclaim Marcos the winner. However, this option deprives Leni of due process because she was not a party in that other case and thus was not given her “day in court.” Besides, it is doubtful whether the invalidation of the results in those 200 precincts will overturn Leni’s original lead of 263,473 votes.

Third, continue the proceedings but conduct a TE in all the 2,756 precincts in the three Mindanao provinces. However, the TE will take a long time, given that the recount in the three pilot provinces under the “Second Cause” was finished only recently.

Fourth, ask the parties, the Comelec and amicus curiae to submit position papers or proposed rules on how to conduct the proceedings in the “Third Cause,” considering that the PET Rules cover only quo warranto cases and electoral protests like the “Second Cause” which, under Rule 65, required the identification of “pilot” areas before all the protested ballots could be recounted and revised. Since the three provinces mentioned in the “Third Cause” were not among the 25 protested provinces, then the existing PET Rules cannot be used to conduct the proceedings there.

I think the fourth option is the prudent way to proceed given the difficulty, if not impossibility, of fairly conducting any legal process without first agreeing on the rules. If still sitting in the Court, I would vote for the said option.

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