Accommodating Bongbong Marcos

When losing vice presidential candidate Ferdinand Marcos Jr. filed an election protest in June 2016 with the Supreme Court, in its capacity as the Presidential Electoral Tribunal (PET), he offered three causes of action.

The first was sweeping, even shocking. He wanted the PET to declare as inauthentic all the certificates of canvass used by Congress to proclaim Leni Robredo vice president. The shock was not that he targeted Robredo, but that the logical consequence of his first cause of action would also undermine the election of his political ally, President Duterte.

The certificates of canvass that Marcos alleged were inauthentic were the same ones used to proclaim Mr. Duterte president. His first cause, then, was based on a sketchy legal theory which Supreme Court justices described, fairly, as “surgical annulment.” In a word, he did not question the authenticity of the President’s election, only that of the Vice President. But there was no reasonable way to surgically annul one result, but retain another, in the same certificate.

In September 2017, the PET dismissed the first cause of action as “an exercise in futility.”

The second cause of action called for the recount of votes in three provinces of Marcos’ own choosing. That bears repeating. The rules of election protest allow the losing candidate alleging election fraud to choose three pilot provinces that, in his view, would have the best chance of proving his allegation. Marcos chose Camarines Sur, Robredo’s home province; and two provinces in the Visayas which voted strongly for Robredo and her presidential candidate Mar Roxas, namely Iloilo and Negros Oriental.

After a tedious and lengthy process, the recount was completed in October 2019—or almost three and a half years after the election. Not only did Marcos fail to show a substantial recovery that would have precipitated a wider recount; Robredo even widened her lead over him.

“Thus,” the PET resolution read, “based on the final tally after revision and appreciation of the votes in the pilot provinces, protestee Robredo maintained, as in fact she increased, her lead with 14,436,337 votes over protestant Marcos who obtained 14,157,771 votes.” Robredo’s lead had grown from 263,473 to 278,566, or a gain of 15,093 votes.

By the tribunal’s own rules, Marcos’ failure to prove fraud in the three pilot provinces he had chosen should have resulted in the dismissal of his entire election protest. The first paragraph of Rule 65 reads:

“The Tribunal may require the protestant or counter-protestant to indicate, within a fixed period, the province or provinces numbering not more than three, best exemplifying the frauds or irregularities alleged in his petition; and the revision of ballots and reception of evidence will begin with such provinces. If upon examination of such ballots and proof and after making reasonable allowances, the Tribunal is convinced that, taking all circumstances into account, the protestant or counter-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.”

But instead of dismissing the Marcos protest, the PET, voting 11-2, asked the parties to comment on the Tribunal’s dismissal of the second cause of action and to submit their memoranda on Marcos’ third cause—seeking the annulment of the elections in Lanao del Sur, Basilan, and Maguindanao.

To a layman, the language of Rule 65 may suggest possibility, not a directive. “The Tribunal may require” the revision of ballots in “not more than three” pilot provinces, and if failure to prove fraud or irregularity looks likely, “the protest may forthwith be dismissed.”

But the two justices who voted to dismiss the protest outright argued that in fact the mandate of Rule 65 was clear. Justice Benjamin Caguioa, the member in charge of the protest at the time, said the Marcos protest was marked by “a clear and unmistakable lack of basis.” And Senior Associate Justice Antonio Carpio, in one of his last dissents, wrote: “The last thing that this Tribunal should do is to change its rules in midstream to accommodate a party who has failed to comply with what Rule 65 of the 2010 PET Rules expressly requires.”

A closer look at the language of Rule 65 raises that very question of accommodation. Having given Marcos the opportunity to prove election fraud in three provinces of his own choosing, the Tribunal ended up convinced, after all reasonable allowances were made and all circumstances taken into account, that Marcos had failed to make his case. In other words, the dismissal of the second cause met all the conditions listed in Rule 65. Why did the majority of justices fail to follow through on its clear conclusion? The entire protest should “forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.”

Due process was the rationale given in October 2019. Last month, almost a year after the second cause was dismissed and the Tribunal moved to consider the third, it ordered the Commission on Elections and, for some reason, the Office of the Solicitor General, to comment on issues related to the third cause of action.

So this is where we are today. Marcos’ protest is now on its fourth year; it has lengthily processed, and lost, two causes of action; it even included an attempt to unseat Caguioa as member in charge. Let’s speak plainly. If someone has been denied the full amplitude of due process, it has not been Marcos but Robredo—the country’s duly elected Vice President.

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