The Philippine Star - OSG says tribunal can declare failure of polls sought by Marcos

3 November 2020

By Kristine Joy Patag | The Philippine Star

MANILA, Philippines — The Office of the Solicitor General said the Presidential Electoral Tribunal has power to declare a failure of elections, an action that former Sen. Ferdinand “Bongbong” Marcos Jr. is pushing for in his poll protest against Vice President Leni Robredo.

“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,” Solicitor General Jose Calida said.

“In the case at bar, it is undubitable 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,” the OSG also said.

According to an earlier STAR report, Robredo garnered 477,985 votes against Marcos' 169,160 in the three provinces. If the voting in the three provinces will be declared as void, Robredo’s narrow lead against Marcos of 263,473 votes will be wiped out.

The OSG filed its 40-page comment in compliance with the directive of the Supreme Court, sitting as PET, to weigh in on issues related to Marcos’ third cause of action in his electoral protest.

In particular, on the annulment of elections in the provinces of Lanao del Sur, Basilan and Maguindanao on the ground of terrorism, intimidation, harassment of voters and pre-shading of ballots.

The tribunal asked the OSG and the Commission on Elections whether the PET is empowered to declare the annulment of elections without special elections and the failure of elections and order the conduct of special elections

It also asked the OSG and Comelec to answer whether the Tribunal’s declaration of failure or elections and then the ordering of special elections will infringe upon the Comelec’s mandate and power provided for in Article IX (C) (Sec. 2) of the Constitution.

This is not the first time that the OSG is taking a position that would favor Marcos. When the SC was deliberating on whether votes with 25% shaded ovals are considered valid, Calida said there would be no basis to apply the 25-percent threshold in the recount, while Comelec said in its own comment that voting machines were calibrated to read as valid votes marks that cover at least 25% of the oval.

OSG: PET can annul elections but cannot hold special elections

The OSG said the PET can declare the annulment of elections or failure of elections following Section 4(7), Article VIII of the 1987 Constitution, which holds that the “SC, sitting 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 its rules for the purpose.”

Calida also quoted Abes v Comelec, where the SC said: “That Comelec is not the proper forum to seek annulment of an election based on terrorism, frauds and other illegal practices.”

Following this, the OSG said that the issues such as there “was terrorism, vote-buying or other irregularities in the elections should be ventilated in regular election protests,” and not the Comelec.

Calida also asserted that the power of PET to declare a failure of elections is “implicit” in its 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 the valid votes cast, necessarily includes the determination of whether there was a failure of elections,” the Comment read.

But the OSG said that the tribunal does not have the power to call for special elections, as this the PET’s jurisdiction can only be invoked after an election was held, it said.