PET dilemma: Drop VP protest or not?

THE PRESIDENTIAL Electoral Tribunal is expected to decide today whether to dismiss the protest of ex-senator Bongbong Marcos against the 2016 election of Vice President Leni Robredo or to continue revising/nullifying more ballots that he is disputing beyond his pilot areas.

Today is Chief Justice Lucas P. Bersamin’s last en banc session with the PET, composed of fellow Supreme Court justices, before his retirement on Friday at age 70. He is expected to make sure a decision is made today on the application of the tribunal’s Rule 65.

Under Rule 65, the protest may be dismissed at this stage if the results of the revision of ballots in the three pilot provinces chosen by Marcos does not show him substantially recovering votes. But if there is convincing recovery, the recount may continue in other contested areas.

The recount results may be announced today. Bersamin has said, however, that the PET is not bound by Rule 65 to dismiss the protest, implying that it may continue revising ballots in the other disputed provinces and cities until convinced who the real winner is.

Aside from expanding the revision area, Marcos has moved for a technical examination of the election records in Basilan, Maguindanao and Lanao del Sur, presumably intending to have the results in those places annulled if fraud is uncovered.

Robredo’s lead counsel, lawyer Romulo Macalintal, has said that if the PET ignores Rule 65, in effect changing the rules in the middle of the game, they will file a motion for reconsideration (MR) within 15 days. He asked: “What are rules for if we don’t follow them?”

Marcos will then be asked to comment on the MR, starting a legal volleyball game during which Robredo will continue to sit as the regularly elected and proclaimed Vice President.

If her MR is denied, Robredo can go to the Supreme Court on a petition for certiorari and have the PET decision reviewed. 

But the SC and the PET consist of the same magistrates. The only difference is that the PET head is a chairman and the others are members, while the SC head is Chief Justice and the members are Associate Justices.

We once asked Macalintal why one must go through a seemingly futile process of asking the SC to review a decision of the PET since the petitioner would be appealing to the same individuals whose actions he was questioning.

He recalled filing a case in 2010 against the PET wherein, he said, the SC held that the PET is an “independent body” like the electoral tribunals in the House (HRET) and the Senate (SET), and that these are independent, although not separate, from the Congress and the SC.

If the annulment bid pushes through, the technical examination of 2,756 voting records and the Election Day computerized list of voters in the Autonomous Region of Muslim Mindanao may also take around one and a half years.

The findings on the technical examination will be subject to MRs by the aggrieved party. An MR normally takes the PET a month or two to resolve, and the petition with the SC, if given due course, may also take a while.

(This non-lawyer wonders why Robredo would be a party to the reexamination of the ARMM records without her being first implicated in any fraud in their preparation or use. Will this issue require a separate filing and hearing?)

If our information is right, another problem ahead for the PET is that it still has no clear rules on how to conduct a technical examination of voting records. When rules are being laid down, they are subject to comments and objections by affected parties.

• Robredo also has a counter-protest

SO FAR we have been talking only of Marcos’ protest. Remember, after the loser in the vice presidential race filed a protest, Robredo filed a counter-protest covering 18 provinces (compared to her rival’s 25 provinces and five highly urbanized cities).

After the PET disposes of the possible technical examination of the ARMM records, coupled with a bid to annul questioned votes, the tribunal can turn its attention to the Robredo counter-protest.

Like Marcos, Robredo will be asked under Rule 65 to pick three pilot provinces from her 18 protested provinces. When the PET and the poll materials and workers are ready, there will be a similar review and recount of the votes in her pilot provinces.

It took three years to revise the ballots in Marcos’ three provinces. How long will it take the PET to go through a similar process in the Robredo counter-protest?

One odd effect would be like the sovereign will of citizen-voters being stymied by a tedious process leading to a decision by a mere majority of 15 appointive SC members as to who should sit as Vice President.

If the idea behind the Marcos protest is to snatch the vice presidency to be in immediate line for the presidency in the event the President steps down or a permanent vacancy occurs, the scheme might just be foiled by the convoluted process.

By the time Duterte steps down in June 2022 (assuming he survives that long as president or does not try something like trashing the Constitution to stay longer), the SC/PET could still be revising the ballots in Robredo’s counter-protest.

This October or shortly after, Duterte will appoint a new Chief Justice and three fresh justices to replace the newly retired members (Bersamin, Francis Jardeleza and Antonio Carpio). That tightens his hold on the Court, but will not substantially alter the procedural timetable for the Marcos protest.

The test of endurance, resources and other variables will continue till the 2022 buzzer – unless the SC/PET, as Bersamin seemed to hint at days ago to our surprise, does the unexpected and dismisses the Marcos protest on the basis of Rule 65.

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NOTA BENE: Postscripts are archived at manilamail.com. Author is on Twitter as @FDPascual. Email feedback to [email protected]