Calida leans toward Marcos in VP protest comment to Supreme Court

In an unsurprising move, Solicitor General Jose Calida submitted a comment to the Supreme Court that leans toward defeated vice presidential candidate Bongbong Marcos, whom the solicitor general campaigned for in 2016.

In a 40-page compliance with the order of the Supreme Court sitting as the Presidential Electoral Tribunal (PET), Calida said the PET has the power to declare nullity of elections in an area, but it cannot hold special elections. 

Calida said if the votes from the contested provinces of Lanao del Sur, Maguindanao, and Basilan are voided, the winner "is easily determinable" from the remaining valid votes.

"It is indubitable that even if votes cast in the provinces of Maguindanao, Lanao del Sur and Basilan are declared null and void, there is no failure to elect to speak of. On the contrary, the ultimate winner, or the one with the majority (or plurality) of the valid votes cast is easily determinable," Calida said in the submission co-signed by 21 Assistant Solicitors General.

Vice President Leni Robredo garnered a total of 477,985 votes in Lanao del Sur, Basilan, and Maguindanao against Marcos' 169,160 votes. If these are nullified, Robredo’s slim lead in the national count would be wiped out. Robredo defeated Marcos by just 263,473 votes in the 2016 vice presidential elections. 

What this means

It's a favorable comment for Marcos because it plays to his 3rd cause of action which alleges massive fraud in those provinces.

Calida's comment means that if indeed it is proven that there was fraud, the Supreme Court can go ahead and declare those votes null. 

The result would be a Marcos victory.

Calida also requested that the Supreme Court submit the entire case "for immediate resolution" after Robredo and Marcos had replied to his and the Commission on Elections' (Comelec's) comments.

If the protest is overtaken by the 2022 elections, it would be considered moot.

Rappler has reached out to the Robredo camp for comment. We will update this story once they respond.

Robredo's side

In the entire proceeding, the Robredo camp has maintained that the protest should have been junked in October 2019 when the PET found that Robredo's lead even widened in the revision of votes in the 3 pilot provinces chosen by Marcos himself.

Robredo has repeatedly invoked Rule 65 of the PET rules, which says that if there is no substantial recovery from the chosen pilot provinces, "the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest."

The PET had said its recent moves were to comply with due process, even as election experts, including the late former poll chief Sixto Brillantes Jr, called the comment requests "most unusual" and "abnormal."

Marcos isn't too happy with the pace either, saying before that the PET's recent requests for OSG and Comelec comments "would cause tremendous delay."

Crucial Comelec comment

The Office of the Solicitor General (OSG) comment was on the legal questions.

"It is respectfully submitted that the Honorable Tribunal has the power to declare the annulment of elections or a failure of elections without infringing upon Comelec's authority, but it has no concomitant power to order the conduct of special elections," said Calida. 

The crucial comment would be the one that the PET asked from Comelec, as their answer would touch on Marcos' main premise: Was there fraud in those provinces?

The PET wanted Comelec to answer the following:

  • were petitions for failure of elections filed in the provinces of Lanao Del Sur, Basilan, and Maguindanao
  • what were the corresponding resolutions to the said petitions (if granted or denied)
  • were special elections held in areas declared to have had a failure of elections in the said provinces
  • what were the results of the special elections

What Marcos has going for him is a report from Comelec's Election Records and Statistics Department (ERSD). This was cited by ex-Sulu vice governor Abdusakur Tan in his own electoral protest case against former ARMM governor Mujiv Hataman, questioning the results of the 2016 gubernatorial race.

According to Comelec's own comment to the Supreme Court, the case of Abdusakur vs Tan was dismissed on December 5, 2019, because of mootness since Hataman had since been elected to the House of Representatives and the Bangsamoro act that abolished ARMM was passed into law. Comelec said the decision is "now final and executory."

"The Commission, be it with any of its Division or En Banc, did not have the opportunity to rule upon such findings or otherwise pass upon its validity, merit, and probative value," said Comelec.

Tan's case was handled by former commissioner Luie Guia, who has already retired. It was also through Guia's resolution that the Comelec stood by the 25% voting threshold which favored Robredo. The PET eventually decided to just rely on election returns.

Calida and Marcos

It was during the time the threshold issue was being debated that Calida, as supposed statutory counsel for the government, dropped Comelec and favored Marcos' position on the 50% voting threshold.

Calida campaigned for Marcos in 2016, and was a crucial figure in the so-called "AlDub" tandem or the "Alyansang Duterte-Bongbong" even though President Rodrigo Duterte's running mate was erstwhile speaker Alan Peter Cayetano.

By virtue of Associate Justice Benjamin Caguioa's losing vote in October 2019 (he wanted to dismiss the protest), the electoral protest has been raffled off to a new member-in-charge, Associate Justice Marvic Leonen.

Calida helped notorious lawyer Larry Gadon in trying to get Leonen's Statements of Assets, Liabilities, and Net Worth (SALN) for purposes of filing a quo warranto petition to remove the 3rd most senior justice of the Court.

The Supreme Court en banc unanimously rejected on September 15 the OSG and Gadon's requests to get Leonen's SALNs. The Supreme Court also unanimously junked OSG's motion for reconsideration for Leonen's SALNs on Tuesday, November 3. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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