So what if the SC asked the Comelec to weigh in on the VP protest?

In the high-stakes vice presidential electoral protest, the Supreme Court (SC), sitting as the Presidential Electoral Tribunal (PET) on Tuesday, September 29, required the Commission on Elections (Comelec) to do two things.

The first is a report on whether there were petitions for failure of elections in Lanao del Sur, Basilan, and Maguindanao, how these were resolved, and whether there were special elections held in any areas there.

The second is a report dealing with more specific issues – "annulment of elections on the ground of terrorism, intimidation, harassment of voters, and pre-shading of ballots in the provinces of Lanao Del Sur, Basilan, and Maguindanao," according to the SC's briefer released Wednesday, September 30.

What do all these mean? The contending parties were not completely happy, as the extended proceedings continue to cost taxpayers.

The two reports will pursue an answer to Ferdinand "Bongbong" Marcos Jr's premise that there was massive cheating in the 3 provinces mentioned by the PET.

In Marcos' 3rd cause of action, the defeated vice presidential candidate indicated the desire to nullify the votes in the 3 provinces, but to do that, he must first establish that there was fraud.

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. (READ: CHEAT SHEET: The Marcos vs Robredo electoral protest)

Both not happy

Given this, who won this round? It seems neither.

Robredo's legal spokesperson Beng Sardillo said Wednesday that they "welcome the latest PET order as this will help fast-track the resolution of the election protest."

But if Robredo's lawyers are to be followed, Marcos' protest  should have been dismissed in October 2019 when a recount of his 3 chosen pilot provinces widened the Vice President's lead even more, giving her 15,093 additional votes.

Robredo has been invoking 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."

For the opposition Liberal Party, the PET should junk the protest now, which is what retired Supreme Court senior associate justice Antonio Carpio and former case lead Associate Justice Benjamin Caguioa wanted to do in October 2019. However, they lost.

"In delaying a decision, the Supreme Court only risks allowing itself to be a tool for the losing candidate, Mr. Marcos, to use the protest to spread lies and deceit. Again, we call on the Supreme Court to play its role in our democracy and put a stop to efforts to subvert the will of our people," the Liberal Party said in a statement Wednesday.

But while this action would seem a one up for Marcos, he's not too happy, either. For him, the PET is not moving fast enough. If the protest is overtaken by the 2022 national elections, this protest would be rendered moot.

"We view with extreme reservation the route chosen by the justice in charge. Instead of directly proceeding with the technical examination and forensic investigation he lamentably added another layer that would cause tremendous delay in referring the matter to the Office of the Solicitor General and the Comelec to file their respective Comment," said Marcos' legal spokesperson Vic Rodriguez.

Costs

The logistics of a technical examination and forensic investigation of the votes in Lanao del Sur, Basilan, and Maguindanao is not clear at this point.

Comelec Spokesperson James Jimenez said they "stand ready to comply with the order of the court." 

"We have been ready since it all started. Expected naman 'yan na aabot sa puntong ito (It is expected we would reach this point)," Jimenez told reporters.

"Our protest is under real threat of becoming moot and academic by events leading to 2022 such as the filing of candidacy, campaign and national election that would reduce the clamor and right of the people to know who really won the vice presidency illusory," said Rodriguez.

All this is happening while taxpayers continue to shoulder part of the cost of the proceedings. While it was Marcos and Robredo who had to pay deposits to cover the cost of transferring ballot boxes and salaries of revisors, taxpayers paid the justices separately for their PET work.

From 2016 to 2019, justices – both incumbent and retired – have been paid a grand total of P55.5 million in honoraria and allowances just for being members or chairmen of the PET, according to the Reports on Salaries and Allowances (ROSAs).

Justices are paid P976,000 for a full year just for being PET members, on top of their salaries as justices and on top of separate allowances for being members of either the Senate Electoral Tribunal (SET) or the House of Representatives Electoral Tribunal (HRET).

The OSG

Because Caguioa ceased to be member-in-charge as a consequence of a losing vote in October 2019, a succeeding raffle gave the case to Associate Justice Marvic Leonen, whom Rodriguez's statement referred to.

With Leonen getting the unanimous concurrence of 11 justices (two were on leave, one is vacant), the PET also asked the Office of the Solicitor General (OSG) to present its legal position on two things:

  1. Whether the Tribunal is empowered by the Constitution to declare: a) the annulment of elections without special elections; and b) the failure of elections and order the conduct of special elections.
  2. Whether the Tribunal’s declaration of failure or elections and then the ordering of special elections, will infringe upon the Comelec’s mandate and power provided for in Article IX (C) (Sec. 2) of the Constitution. 

Solicitor General Jose Calida, who campaigned for Marcos in 2016, dropped the Comelec as client in the earlier part of the proceedings.

While Comelec stood by the 25% ballot shading threshold, Calida backed Marcos' insistence on a 50% ballot shading threshold. In the end it didn't matter because PET decided to just rely on election returns.

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

But the Supreme Court en banc unanimously rejected on September 15 the OSG and Gadon's requests to get Leonen's SALNs. – with research from Cristina Chi/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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