SC raises 4 issues with Marcos’ motion to probe Mindanao polls

Sofia Tomacruz
(UPDATED) For one, which has the jurisdiction to probe election materials, the Presidential Electoral Tribunal or the Commission on Elections?

ELECTORAL PROTEST. Supporters of Ferdinand "Bongbong" Marcos gather near the Supreme Court as they wait for the decision of PET on October 15, 2019. Photo by KD Madrilejos/Rappler

MANILA, Philippines (UPDATED)  – The Supreme Court (SC), sitting as the Presidential Electoral Tribunal (PET), raised 4 issues with the motion of Ferdinand “Bongbong” Marcos Jr to nullify election results in 3 Mindanao provinces as part of his electoral protest against Vice President Leni Robredo.

These issues are in the High Court’s order issued last Tuesday, October 15, requiring both parties to submit position papers on Marcos’ 3rd cause of action, which is to nullify votes in Lanao del Sur, Basilan, and Maguindanao. To justify the nullification of results here, Marcos is asking the Court to investigate the election records for indications of widescale cheating.  

The SC also ruled to release the results of the recount of votes in Marcos’ 3 pilot provinces of Negros Oriental, Iloilo, and Camarines Sur so parties could comment. 

The 4 issues raised by the SC, sitting as the Presidential Electoral Tribunal (PET), are:

  • “Whether or not the results in the revision and appreciation of votes with respect to the Protestant’s 2nd cause of action moots or renders unnecessary the consideration of the Protestant’s 3rd Cause of Action”
  • “Whether or not the Presidential Electoral Tribunal has the competence to resolve the 3rd Cause of Action”
  • “Assuming that the Presidential Electoral Tribunal has the competence to resolve the 3rd Cause of Action which is not mooted by the results of Tribunal’s findings with respect to the second cause of action:
    • What are the filing rules and requirements that a party must observe if he or she seeks the relief of annulment of elections before the Presidential Electoral Tribunal?
    • What is the threshold of evidence that is required to prove failure or annulment of elections?
    • Will evidence other than those listed by the parties during the preliminary conference be considered?
    • What percentage of votes/precincts needs to be proven as having been affected by the grounds for failure or annulment of elections?
    • Will the threshold apply per province or to all 3 provinces? Can there be failure or annulment in some but not all 3 provinces?
    • Should a similar pilot testing rule be equally applied in annulment of election cases?
  • “Assuming that the Tribunal is convinced that there is basis to find for the Protestant in the 3rd Cause of Action:”
    • Will this mean that the elections for all the elective positions in the ballot be nullified with all its attendant legal consequences?
    • Can our declaration as the Presidential Electoral Tribunal or the Supreme Court be a bar for any question relative to any present and future electoral protest involving the same area and for any position?
    • Will it be necessary to call for special elections for the position of Vice President? If so, who has the competence to call for such elections?
    • Will this mean “recovery” for the Protestant under Rule 65, which will, in tum, mean revision of all his contested precincts nationwide?
    • What will be the effect of our ruling on Protestant’s Third Cause of Action on protestee’ s counter protest?

New territiory: By raising these issues, the SC treads carefully in one of the highest-stakes decisions it has to make.

The 2016 vice presidential electoral protest is only the 5th that has been filed with the PET and is the farthest an electoral protest has gone with the High Court. If the SC decides to act on Marcos’ 3rd cause of action, it ventures into unknown territory with the 2010 PET rules lacking in guidelines of how to approach the matter.  (READ: Why Marcos wants SC to investigate election materials in 3 Mindanao provinces)

What both parties want: Marcos’ lawyer Vic Rodriguez earlier said the October 15 order was a “positive development” that the PET was now “dealing” with the motion involving the 3 ARMM provinces.

But it is Robredo’s position that Marcos’ request should be denied without question as it would be a departure from Rule 65 of the 2010 PET rules.

Rule 65 says that if there is no substantial recovery from Marcos’ chosen 3 pilot provinces, “the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.” Results of the recount conducted by the tribunal in Negros Oriental, Iloilo, and Camarines Sur even gave Robredo more than 15,000 additionl votes.

Senior Associate Justice Antonio Carpio and Associate Justice Benjamin Caguioa took this position, voting to dismiss Marcos’ protest altogether.

“The majority puts forward questions the answers to which are already obvious. By this failure to recognize the mandate, public purpose and wisdom of Rule 65 ‘s unequivocal directive, all the hard work and effort put into the revision and appreciation for the past three years are wasted,” Caguioa said in his dissenting opinon.

Depending on how the PET proceeds with Marcos’ 3rd cause of action after parties submit their positions, election materials in the 3 former ARMM provinces are crucial in the Court’s decision to either dismiss the electoral protest or continue hearings.

Marcos had earlier claimed “widespread presence of terrorism, violence, threats, coercion, force, intimidation, and other anomalies, such as batch-feeding and pre-shading of ballots” in his bid to nullify elections results in the Mindanao provinces. 

Robredo defeated Marcos by just 263,473 votes in the 2016 vice presidential elections, prompting the latter to allege cheating and file an electoral protest against her. With an additional 15,093 votes from the recount of votes in the 3 pilot provinces, Robredo’s lead in the national count climbs to 278,566 votes.

In Lanao del Sur, Basilan, and Maguindanao, Robredo garnered a total of 477,985 votes against Marcos’ 169,160 votes. If these are nullified, Robredo’s slim lead in the original national count would be wiped out. Marcos would lead by 45,352 votes, plus or minus any votes that either side recovers courtesy of the lowered shading threshold.  Rappler.com

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Sofia Tomacruz

Sofia Tomacruz covers foreign affairs and is the lead reporter on the coronavirus pandemic. She also writes stories on the treatment of women and children. Follow her on Twitter via @sofiatomacruz. Email her at sofia.tomacruz@rappler.com.