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Manila Standard : The will of the people must prevail

News & Interviews
21 August 2021

By Tony La Viña | Manila Standard

"The Marcos-Robredo case was not without controversies."

Ninety thousand clustered precincts, later lowered to 36,465 protested precincts, and a quarter of a million votes is no peanut amount. By the time of preliminary conference in 2017, with the protestant’s own indication the Tribunal narrowed the revision and recount to three “pilot” provinces—Camarines Sur, Iloilo, and Negros Oriental—representing around five and a half thousand clustered precincts. Yet even this lower number demanded the revision and recounting of every “paper ballot and/or ballot images”; examination and analysis of every “voter’s receipts, election returns, audit logs…” and practically all Election Day-related output documentation and paraphernalia “in ALL” of the remaining protested precincts.

Narrowing the initial recount to the pilot provinces is a consequence of the PET Rules (2010): the protestant involved may choose a maximum of three pilot provinces that “best exemplifies the frauds or irregularities” being protested. CamSur, Iloilo, and Negros were the Marcos camp’s selection. The idea being, if the protestant argues that fire had engulfed all the thirty-six thousand plus precincts being contested, opening the doors on around five thousand of them will let a lot of evidentiary smoke out. And those results would determine if the Tribunal would then move on to the other precincts for examination.

Opening the doors however would take up about ten months of work (2 April 2018-4 February 2019), and it was not without its controversies.

A notable one was the “shading threshold” controversy. The protestee requested that ballot ovals with a minimum of 25 percent shading be considered as a legitimate vote even if rejected by the machine. This was considering the PET Rules required a 50-percent threshold—but the Comelec’s 2016 Random Manual Visual Audit she subsequently submitted to make her case guidelines set it at 25%. It’s right up there with the “hanging chads” of the 2000 Bush-Gore election contest.

The Tribunal’s next move was a reminder that due process and electoral rights aren’t easily reducible to a formula or algorithm. Amending the PET Revisor’s Guide, it directed the revisors to be “guided by the number of votes [in the] Election Returns… [holding that by] not merely adopting a specific shading threshold, the Tribunal’s revision procedure will be more flexible and adaptive to calibrations of the voting or counting machines in the future.”

This certainly reflects the steadfast jurisprudential principle that the will of the electorate be respected, but does this translate to abandoning shading thresholds altogether in future electoral protests, or for that matter how an automated election machine is calibrated to read the ballot? We dare not make predictions here yet, noting Marcos v. Robredo’s historic first-fully-resolved status, and that this is only the PET, not (yet) the House or Senate electoral Tribunals, or the subnational offices. But that reminder is timely, especially as COVID-19 threatens to complicate the upcoming 2022 elections.

The Tribunal’s next action, on the revision’s result, would become the next controversy. Once the recount finished, they found that Robredo actually increased her lead over Marcos. The entire point of the pilot provinces was to prove at least the high probability of fire by showing the smoke: if the protestant could demonstrate “reasonable recovery” of votes in his favor. If he could not, under PET Rule 65 his Petition would have been dismissed for being futile (his other causes of action having been dismissed or absorbed into the recount—more in the succeeding article). Except the Tribunal did not, voting 11-2 to set aside Justice Benjamin Caguioa’s draft ruling that would have done so, and directing the parties to comment on the results.

As we have said, the Tribunal faced much criticism for opting to continue with the protest for the sake of due process. Given prior rulings seen as favorable to the Duterte Administration (as well as the controversial Libingan ng mga Bayani case), the Supreme Court’s reputation was seen as on the line in Marcos v. Robredo. Justice Caguioa’s criticism withers: “What is stopping the majority from applying Rule 65? Why is this Protest being treated as sui generis?” But as one of the two lonely dissenters, the other being Justice Antonio Carpio, his dissent also cost him the member-in-charge position on the Tribunal.

We did say earlier that “perhaps it was for the best” that the Tribunal continued with the case. But we are not prepared to say that Marcos v. Robredo as case law makes the Rule 65 dismissal an “elective” option for the PET from now on. We do not see it in the ponencia’s text; we also believe that perhaps this was their sui generis course of action indeed, for what could be a sui generis case: not the electoral protest itself, but the highly charged context in which it was happening. An increasingly authoritarian and polarizing presidential administration. A Supreme Court still reeling from its unceremonious ejectment of its own Chief Justice (and from the impeachment of her predecessor). Candidates who admittedly, in the most neutral description possible, bring with them a ton of historical and political baggage. Maybe seeing it through to the end would still be troubled waters. And in the end, the Tribunal upheld the revision results, even the Separate Opinions.

In the next two columns, I will conclude this series on the Marcos-Robredo case based on an analysis I co-wrote with Christian Laluna.