Yellow Pad

The recent resolution of the Presidential Electoral Tribunal (PET) requires the parties to the election protest of the loser, Bongbong Marcos, to comment on the PET’s recount of votes in the provinces of Camarines Sur, Iloilo, and Negros Oriental. The outcome of the recount in these provinces even increased the lead of Vice-President Robredo by an additional 14,285 votes. Thus, Vice-President Robredo’s over-all lead is now equivalent to 278,566 votes.

For this reason, two Supreme Court Justices, Senior Associate Justice Antonio Carpio and Associate Justice Alfredo Benjamin Caguioa, dissented from the resolution. Both argued for the dismissal of the loser, Marcos’s, motion, citing PET’s Rule 65. Rule 65 states that when “substantial recovery” is absent, “the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.”

The rule is unambiguous, as clear as crystal. The loser, Marcos, did not have “substantial recovery.” More to the point, the winner, Robredo, obtained additional votes. It is an open-and-shut case.

A legalist (or a contortionist) will point out the use of the modal verb “may” (“may forthwith be dismissed”) in the PET’s rule. It suggests possibility, not certainty. But what cannot be denied is the essence of the rule — no substantial recovery is a case for dismissal of the Marcos motion.

The PET has nevertheless required both parties to file a memorandum on the motion of the loser, Marcos, to nullify the election results in three Mindanao provinces, namely Basilan, Lanao del Sur, and Maguindanao.

Even here, the PET has to tackle many technical and legal questions, and I doubt if these issues could be resolved before the 2022 elections.

For one thing, where is the evidence to establish fraud? What is the threshold of evidence to form sufficient basis to annul the election outcomes in these provinces? The case of fraud has to be determined in every voting precinct. The loser, Marcos, wants the PET to go on a fishing expedition.

For another thing, claiming general fraud without evidence puts into question the legitimacy of all the winners of national posts in the 2016 elections — including Rodrigo Duterte. This causes political uncertainty, nay, political instability. We, including Duterte, do not want such instability to happen in the last half of the administration’s term.

To be sure, prolonging the case is a cause for grave concern. Nonetheless, I understand the point of view of Associate Justice Marvic Leonen that the recent PET resolution should likewise be seen as a recognition of due process. After all, our legal institutions must protect everyone — including the drug users among the poor, and victims of extra-judicial killings as well as the rich cocaine users, and the progeny of those who committed human rights violations.

Still, the final outcome of this case, to repeat, is clear as crystal. It is an open-and-shut case.

The PET, essentially the Supreme Court, is packed with Duterte appointees, and is perceived to be favoring the loser, Marcos. And the history of decision-making of the Supreme Court on politically related cases, even after the downfall of the dictatorship, tends to favor the administration.

But let us not be pessimistic. Truth favors Vice-President Robredo. Beyond what ought to be, Supreme Court decisions are subject to different variables.

Assume that the majority of the Supreme Court members are beholden to President Duterte. The question is whether it is in the strategic interest of Duterte to have the loser, Marcos, win. Part of his calculation is the political fallout (and indeed a controversial decision will lead to instability). Although Duterte and Marcos may be tactically aligned, they do not have the same strategic interests. Marcos’s concern is his power and glory, not the protection of Duterte.

Further, it is worth citing an article authored by Laarni Escresa and Nuno Garoupa titled “Judicial Politics in Unstable Democracies: The Case of the Philippine Supreme Court, An Empirical Analysis 1986-2010,” published in the Asian Journal of Law and Economics (2012). Based on regression results, the authors conclude that being an incumbent administration appointee explains a vote favoring the administration, but here is the crucial point:

“Still it is less pronounced than anticipated in the sense that the correlation between appointer and appointee is far from overwhelming. Taking into account that we have considered salient cases from a political viewpoint, the results are much less striking than the popular account would suggest.”

In the same vein, the authors state: “The Court may have been deferential to the administration in office, but even in the context of the most politically salient cases, there is a significant proportion of anti-administration votes.”

In a footnote, the authors explain other contextual variables that influence the votes of Supreme Court Justices, including public opinion and civil society mobilization.

In this regard, our role is to intensify public opinion and mobilization to ensure the complete defeat of the loser, Marcos’s, electoral protest.


Filomeno S. Sta. Ana III coordinates the Action for Economic Reforms.