Manila Standard - ‘SC as PET can declare poll failure’

2 November 2020

By Rey E. Requejo | Manila Standard

The Supreme Court, acting as the Presidential Electoral Tribunal, can declare the annulment of elections or a failure of elections in three Mindanao provinces if it finds evidence of massive fraud as sought in the poll protest filed by former senator Ferdinand Marcos Jr. against Vice President Leni Robredo, according to the Office of the Solicitor General.
The OSG, through Solicitor General Jose Calida, said the PET had the power and jurisdiction to annul the elections held in the Mindanao provinces due to massive election irregularities as claimed by Marcos.

The OSG cited the 1987 Constitution that, he said, provided that the high court en banc “shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate rules for the purpose.”

Under the 2010 Rules of the PET, particularly Rule 7 and Rule 8, the PET has its express and implied powers and “other such powers as may be inherent, necessary or incidental thereto for the accomplishment of its purposes and functions.”

“The Presidential Electoral Tribunal 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 Solicitor General said

The comment, which was signed by the Solicitor General along with his assistants and solicitors, said that in the exercise of its powers, the PET could declare the annulment of elections or failure of elections, adding the tribunal “must not shirk from its powers to do the same.”

“Surely, the framers of the Constitution did not intend the PET to operate in vacuo, that is why when the Constitution vested it with the exclusive authority, it means that it also empowered to promulgate whatever rules are needed in order to fulfill its mandate,” the OSG comment said.

However, the chief state lawyer expressed reservation on the matter that the PET could not conduct special elections, which were purely administrative in nature and vested with the Comelec.

“The PET does not have the power to call for special elections. Its mandate under the Constitution is clear—to be the “sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President...”

The OSG said the annulment of elections by electoral tribunals, such as the PET, House of Representatives Electoral Tribunal and the Senate Electoral Tribunal in connection with the pending election contest before it, was entirely different with the failure of elections which is under the province of the Comelec, being a purely administrative function.

According to the Solicitor General, the failure of elections was done before the proclamation contests, while the annulment of elections was made after the contest and during election protests.

“In the case at bar, it is indubitable that even if the votes cast in the provinces of 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.”

“All told, it is respectfully submitted that the Honorable Tribunal has the power to declare the annulment of elections or a failure of elections without infringing upon the Comelec’s authority, but it has no concomitant power to order the conduct of special elections,” the OSG said.

The chief state lawyer made the manifestation in connection with the pending election protest filed by Marcos questioning the proclamation of Robredo as the duly elected vice president in the 2016 vice presidential race.

The PET earlier required the camp of Robredo and the Commission on Elections to comment on the third cause of action in the poll protest filed by Marcos against Robredo.

Associate Justice Marvic Leonen, who became the new justice-in-charge of the case, recommended that the PET require the OSG, the Comelec and Robredo to comment on the third cause of action pleaded by Marcos after sitting on the case for 11 months.

Leonen became the ponente of the case on Oct. 29, 2019, and the PET adopted his recommendation for a comment again via the Memoranda of both parties on Oct. 15, 2019, during the stint of then Chief Justice Lucas Bersamin.

When Leonen took control of the case, both the Marcos and Robredo camp lodged their respective Memoranda in January of this year.

In its memorandum filed last January, Marcos prayed that a technical examination be conducted on the voter’s signatures, which he said were tainted with fraud.

In connection with the third cause of action, Marcos argued that it could be shown that in the 2,756 protested clustered precincts in Lanao Del Sur, Maguindanao and Basilan there violations were committed in the integrity of the elections.

Based on the Commission on Elections data, the 39,221 clustered precincts are composed of 132,446 precincts.

The former senator lost to Robredo by only 263,473 votes, but in his election protest, Marcos accused the latter of resorting to “massive electoral fraud, anomalies and irregularities” such as the pre-shading of ballots, pre-loaded Secure Digital cards, misreading of ballots, malfunctioning VCMs, and an “abnormally high” unaccounted votes/undervotes for the position of VP.