What’s up in Bongbong-Leni VP tiff?

After learning of the outright denial of the motions to inhibit Justice Marvic M.V.F. Leonen (taken up in this space last Sunday), many asked, “To complete the story, what is the status of the election protest filed on June 29, 2016 by former senator Bongbong Marcos against VP Leni Robredo in the Presidential Electoral Tribunal (PET)?”

The protest raised three causes of action. First, the Certificates of Canvass used in proclaiming Leni were allegedly “not authentic.” On Aug. 29, 2017 during the pre-trial conference, the PET dismissed this for “judicial economy and for the prompt disposition of this case.”

Second, massive frauds and irregularities were allegedly perpetrated in 25 provinces and five cities involving about 39,000 clustered precincts. Per the PET Rules, Bongbong identified three “pilot” provinces — Camarines Sur, Iloilo, and Negros Oriental — that “best exemplified” these alleged anomalies.

After the judicial revision and recount of the ballots in the three pilot provinces were completed on Aug. 14, 2019, Justice Alfredo Benjamin S. Caguioa, the member-in-charge, reported that the lead of Leni over Bongbong “even widened from 263,473 to 278,506” or by 15,033 more votes.

Accordingly, he recommended that the protest be “DISMISSED without further proceedings” per Rule 65 of the PET Rules. Under this Rule, if after the revision and recount, “the Tribunal is convinced that, taking all circumstances into account, the protestant… will most probably fail to make out his case, the protest may forthwith be dismissed…”

A year ago, on Oct. 15, 2019, the Tribunal, voting 11-2, deferred its ruling on whether to dismiss the protest or not. Instead, it required both parties to comment on the recount results “consistent with due process of law.” Because this ruling was adverse to Caguioa’s stance, a new raffle was conducted on Oct. 29, 2019 which installed Justice Marvic M.V.F. Leonen as the new member-in-charge.

As his third cause of action, Bongbong asked for the annulment of all the election results in Maguindanao, Lanao del Sur, and Basilan due to alleged terrorism, intimidation, and harassment of voters, and pre-shading of the automated ballots. To prove these allegations, evidence aliunde, not the revision and recount of the ballots, is required by law.

On Sept. 29, 2020, the PET asked the Office of the Solicitor General (OSG) and the Commission on Elections (Comelec) to comment on the third cause of action. In compliance, both the OSG and the Comelec explained that the PET has the power to annul the election results in the said provinces.

Bongbong claims that if, repeat if, the results in these three provinces are annulled, he would win because Leni’s lead of 278,503 votes would be wiped out. Why? Because the original results in the three provinces—477,985 for Robredo and 169,160 for Bongbong—if annulled would show a net advantage for Bongbong of 306,825 which is enough to overcome Leni’s existing lead of 278,503 by a very narrow 30,332 votes.

However, the Comelec correctly added that in Abayon v. HRET (May 3, 2016), the Supreme Court ruled that three conditions must concur before such annulment can be declared. These are: “(1) evidence that more than 50 percent of the votes were cast illegally; (2) impossibility of differentiating the lawful from the unlawful ballots; and, (3) clear, convincing and strong evidence that the protestee [Leni] is the one accountable for the illegal acts.”

Definitely, these conditions are extremely difficult to prove by evidence aliunde. In fact, the protest did not even allege that Leni was “accountable for the illegal acts.” And granting arguendo that these three conditions are clearly proven, the PET will next have to resolve Leni’s counter-protest involving 18 provinces with 8,000 clustered precincts by undergoing the same route of revision and recount.

To sum up, if the PET agrees to dive into Bongbong’s third cause of action, the case may become academic because the Tribunal may not have enough time to satisfy the three conditions, and to resolve Leni’s counter-protest prior to the May 9, 2022 elections.

Given that due process has been observed after the parties submitted their comments per its Oct. 19, 2019 resolution, the PET can take a speedier path: apply Rule 65 by dismissing the case because, after “taking all circumstances into account, the protestant… fail[ed] to make out his case.”

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