The revelation of Comelec Commissioner Rowena Guanzon that her colleague in the First Division, Commissioner Aimee Ferolino, is being influenced to “delay” the Marcos disqualification cases until her retirement on February 2 is most disturbing, to say the least. According to Guanzon, Ferolino is the ponente of the consolidated Marcos disqualification cases after these were raffled to her. Ferolino confirmed that she is indeed the ponente in her letter to Comelec Chairman Sheriff Abas that was made public, wherein she also alleged that Guanzon herself was the one who was unduly pressuring her to adopt Guanzon’s position that presidential candidate Ferdinand Marcos Jr. should be disqualified.

Guanzon is being criticized for prematurely revealing not only the identity of the ponente of the Marcos cases, but also her vote for Marcos’s disqualification. As a matter of course, dissenting or separate opinions are released together with the ponencia or majority decision. Guanzon, however, was forced to announce her vote after Ferolino allegedly failed to abide by their agreement in the First Division that the decision should be promulgated on January 17, 2022. At the very least, Guanzon wanted the decision promulgated on Monday, January 31, before her retirement on Wednesday, February 2.

Comelec rules

In her defense, Ferolino said in her letter to Abas that “what really happened here is undue rush.” According to her, “Why rush when this Commission decides cases on the merits and not for publicity or to accommodate and please anybody or everybody?” But what Ferolino is not saying is that the Rules of Procedure of the Comelec itself provide for a limited period in the disposition of cases. The period for the writing of the ponencia and its promulgation is not unlimited. In fact, it is specific. It is not the case as Ferolino would somewhat imply that commissioners have a wide discretion in the time of writing decisions.

Sec. 8, Rule 18 of the Comelec Rules of Procedure provide that “any case or matter heard by a Division shall be decided within ten (10) days from the date it is deemed submitted for decision or resolution, except in special actions and special cases which shall be decided or resolved within five (5) days…” Under Comelec rules, disqualification cases are special actions. Hence, the Marcos cases should be decided by the First Division five days after they are submitted for resolution. So when did this five-day period start?

Deadline in theory

The Marcos disqualification cases were heard in a preliminary conference on January 7, 2022. The cases were then deemed submitted for resolution upon the submission of the parties’ memoranda after two days. The five-day period for the writing and promulgation of the decision on the Marcos cases therefore started either on January 9 or 10, depending on whether the rule on extensions if the last day for filing memoranda falls on a Sunday was applied by the Comelec. In any case, the latest that the cases were deemed submitted for resolution was January 10.

Ferolino argues in her letter to Abas that she only received the folders of the cases on January 12. However, it is not as if January 12 was the very first time that Ferolino’s office has seen these case folders. Commissioner’s offices are furnished copies of case documents every time a new pleading is filed or a new order is issued. It is only the original case folders that are forwarded to the ponente after the case is submitted for resolution. All the while, from the filing of the petition up to the receipt of the last pleading, all commissioners already have their respective copies of the latest document in the case folders.

Strictly following the rule of the Comelec on the disposition of cases, the First Division therefore had until January 14 or 15 to promulgate its decision on the Marcos cases. Guanzon claims the First Division agreed on January 17, or at least two days later than that provided in the Comelec rules. In the event that Ferolino meets Guanzon halfway and comes out with a decision before Guanzon’s retirement on February 2, the release would by then have gone beyond fifteen (15) days of the original deadline provided for in the Comelec Rules.

Presiding Commissioner

Most Comelec lawyers would argue that this is not really the case, because the period provided for the disposition of cases in Sections 7 and 8, Rule 18 of the Comelec rules are merely directory, and not mandatory. This is true. In my practice as an election lawyer, rarely had the Comelec followed these deadlines on the disposition of cases which Comelec itself had set. But does this mean that Ferolino was right in ignoring the deadline set by her Presiding Commissioner which, in any case, was amply supported by the Comelec rules insofar as the prescribed period for the disposition of cases is concerned? Hardly.

If not a joke, the deadlines set by the Comelec rules serve as a guideline or benchmark, at the very least. Although it has been the long practice among Comelec Commissioners, the time period for the writing and promulgation of decisions cannot simply be left to the discretion of the commissioner-ponente. In the first place, this period is set in the Comelec rules, probably not in stone, but at least on paper.

This is what Guanzon attempted to remedy. As Presiding Commissioner, Guanzon had the authority to remind the ponente of cases in her Division on the deadline in the writing of decisions. More so in cases of this kind where a leading presidential candidate is sought to be disqualified. In this instance, she is fully supported by the Comelec rules, albeit probably not by Comelec practice.

Alleged pressure from Guanzon

Ferolino alleges that another reason why she has not yet come out with a ponencia is that Guanzon is pressuring her to adopt the latter’s position that Marcos should be disqualified. But this excuse is neither here nor there.

Unless the exertion of pressure or influence is of such nature as to amount to illegal acts, such as threats, intimidation, or violence, the same can also amount only to persuasion. Unlike illegitimate influence or interference coming from outside of the Division, there is no prohibition on members of a Division trying to convince other members on the correctness of their position. In fact, the opposite is the principle in collegial bodies. Members are mandated to deliberate, and in their deliberation they are expected to persuade and show the other members the superiority of their opinion. This is the essence of a collegial body.

There must therefore be a distinction between persuasion and coercion. Ferolino appears to have been neither persuaded nor coerced, since evidently, she is sticking to her own judgment. In her letter to Abas, she proudly claims that she refused to read Guanzon’s separate opinion in order not to be “influenced” by her.

A Division of three

Ferolino forgets that under the Rules, she is actually mandated to take into consideration the opinions of the other members of the Division when she writes the decision on the case. Section 1, Rule 18 of the Comelec rules provide that “the conclusions of the Commission in any case submitted to it for decision en banc or in Division shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion of the Commission or the Division.”

In the absence of deliberations, Guanzon’s written opinion should take its place. Commissioners must be disabused of the notion that a proprietary claim attaches in the raffling of a case to a ponente. Despite the raffle, the case remains to belong to the Division. In writing the ponencia, the ponente should still be guided by the opinions of her two other colleagues in the Division, not only her own. The Marcos cases are not Ferolino’s to dispose of single-handedly, even as ponente. She still is only a 1/3 part of a Division of three.

Besides, what kind of undue influence and pressure can a retiring Presiding Commissioner exert on another commissioner, considering the fact that Ferolino even had no intention to meet Guanzon’s January 17 deadline? Ferolino’s allegation that it is Guanzon who is pressuring her to disqualify Marcos does not hold water because she has proven herself very capable of ignoring Guanzon’s set deadline. If Guanzon cannot even make Ferolino follow her deadline, what makes her think that she can pressure her to adopt her position to disqualify Marcos?

Ferolino’s and Guanzon’s choices

What Ferolino should have done was to proceed to write the decision not to disqualify Marcos, if at all, within the time frame set by Guanzon, which is only in full accord with Comelec rules, or she should have agreed to let the third commissioner of the Division write it, as proposed in the alternative by Guanzon. Simply put, Ferolino cannot defer the writing of the decision indefinitely or refuse its assignment to the third commissioner without being suspected of holding it hostage. As it is, the cases have now been pending with her office for 20 days since they were submitted for resolution.

As to Guanzon’s alleged premature disclosure of her opinion on the Marcos case and the identity of the ponente, it is clear that she has done so acting essentially as a whistleblower. Her actions are the consequences of a much-abused practice in the Commission where the ponente, instead of the En Banc or the Division, determines when a decision is released and promulgated despite the periods set in the Comelec rules. She also knows that she is an impeachable official, and therefore cannot be disciplined by the Commission for whatever transgression she might have committed.

The real rule, however, that Guanzon violated is not that the identity of the ponente should be kept confidential, or that separate opinions should not be announced before the promulgation of the main decision. What Guanzon actually violated is the Old Boys’ Club Code that shenanigans within a collegial body should be kept among the members of said body. No one is expected to rock the boat by exposing external considerations that attend decision-making. But Guanzon obviously refused to abide by this code and be part of the Old Boys’ Club at the Comelec since the start of her term.

Mistrial

In cases of allegations of undue influence and pressure in the decision-making of a collegial body, coming from a member of the body itself, the result can only be a mistrial. Any decision to be released by the First Division on the Marcos cases can be sought to be annulled on this basis.

The decision-making of collegial bodies must be beyond reproach. The events that have transpired in the First Division’s handling of the Marcos cases have more than crossed the boundaries of this standard of integrity. The appearance of regularity and the inviolateness of procedure in the disposition of the Marcos cases have been shattered. No one will now be able to trust any Comelec decision that will come out on the Marcos cases.

It is doubtful that Marcos himself will even be proven to be behind the alleged pressure exerted on Ferolino. Guanzon herself is only alluding to an “influential” senator. In which case, the only real beneficiary in this sad affair in the Comelec is Marcos himself. He remains to be a candidate, while the ability of the Comelec to decide fairly and impartially on his disqualification cases is already tainted beyond repair. – Rappler.com

Senator Leila de Lima, a fierce Duterte critic, has been detained in a facility at the Philippine National Police headquarters for several years over what she calls trumped-up drug charges.