Dismiss Bongbong’s poll protest vs Leni

Are Filipino political operators advising President Donald Trump in his rear-guard maneuvers after losing the Nov. 3 election in the United States?

Many Manila observers cannot help asking that question when they hear familiar-sounding allegations of fraud and cheating from the Republican occupant of the White House still refusing to concede despite the apparent clear victory of his Democratic rival Joe Biden.

The battle-cry of the Filipino trapo or traditional politician is “Walang natatalo, nadadaya lang (No one loses an election, he’s just cheated).” On that basis, after the last vote is counted and the winner proclaimed, the fallback position of the loser is often an electoral protest.

Four long years ago, ex-senator Bongbong Marcos (Independent) lost his bid for the vice presidency to Leni Robredo (Liberal Party) by a heart-stopping 278,503 votes in a national election where some 44 million Filipinos voted.

As expected, Marcos filed on June 29, 2016, a protest with the Presidential Electoral Tribunal composed of the justices of the Supreme Court. Also as expected, a counter-protest was filed by Robredo as part of her defense.

At this point, for a clearer narration of the facts and the proper citation of pertinent laws, we turn you over to former Chief Justice Artemio V. Panganiban, who wrote a recap of the Marcos vs Robredo case in his Nov. 22 column in the Inquirer:

“The (Marcos) 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.’”

This voter concurs with the opinion and summing up of the Chief Justice.

*      *      *

Nota Bene: All Postscripts are also archived at manilamail.com. Author is on Twitter as @FDPascual. Email: [email protected]