GMA News Online - Calida says PET can declare failure of elections but not order special polls

3 November 2020


The Office of the Solicitor General (OSG) has told the Supreme Court, sitting as the Presidential Electoral Tribunal (PET), that it has the power to declare a failure of elections but not to order the conduct of special polls.

The OSG took this position in a comment that the PET had solicited in connection with former senator Ferdinand "Bongbong" Marcos, Jr.'s election protest against Vice President Leni Robredo.

The PET asked the OSG and the Commission on Elections (Comelec) last September to comment on issues related to one of Marcos' "third cause of action" — the annulment of 2016 election results in Maguindanao, Lanao del Sur, and Basilan due to alleged terrorism and voter harassment.

Robredo's vote lead over Marcos widened after a recount of votes in three other provinces. The vice president's camp and two SC justices said this was enough reason to dismiss the case, but the majority decided to order the parties to comment on issues on the "third cause of action," citing due process.

In its 40-page comment, the OSG led by Solicitor General Jose Calida said the PET "has the power to declare the annulment of elections or a failure of elections without infringing upon the authority of the Commission on Elections."

The OSG cited Section 4(7), Article VII of the 1987 Constitution, which says that the SC shall be the "sole judge of all contests relating to the election, returns, and qualifications of the President, or Vice-President, and may promulgate its rules for the purpose."

The OSG said the power of the PET to declare a failure of elections is "implicit" in this mandate.

"The PET's power to determine, via an electoral protest, the actual winner in the election for President and Vice-President, or who between the candidates received the majority of valid votes cast, necessarily includes the determination of whether there was a failure of elections," the OSG said.

It said that if the PET, in the exercise of its functions to hear a protest case, finds there are grounds to declare either the annulment or a failure of elections, "it must not shirk from its duty to have the election therein nullified or set aside."

However, it said the tribunal does not have the power to order the conduct of special elections, arguing that the authority of the PET ends after it renders a decision on a protest.

It said the Constitution is "silent as to whether the PET has the power to order the conduct of special elections by reason of its findings, or as incident to or an adjunct of its function as the PET."

"It would thus be fair to conclude that the jurisdiction of the PET, as defined by Section 4(7) Article VII of the 1987 Constitution, would not include the power to call for special elections," the OSG said.

"The reason is obvious: what if the losing candidate in such special elections will again question the result of the elections? It will be a vicious and never-ending cycle," it added.

The OSG also claimed that even if the votes cast in 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," it said.

In 2018, the OSG also took a position that appeared to side with Marcos'. Though it officially represents the poll body, the OSG "notwithstanding the stance of the Comelec" at the time said the PET should maintain its 50-percent threshold during the re-appreciation of ballots from Camarines Sur, Iloilo, and Negros Oriental.

Robredo, on the other hand, had been moving for the use of the 25-percent shading threshold, which she said was the standard used by the Comelec itself in the elections.

The PET eventually set aside the 50-percent threshold. —KG, GMA News