MANILA — The Office of the Solicitor General has backed yet again the election protest of defeated vice presidential candidate Ferdinand “Bongbong” Marcos, Jr., telling the Presidential Electoral Tribunal (PET) it can annul the elections or declare a failure of elections.

Marcos had wanted to annul the elections in 3 Mindanao provinces, a move opposed by the side of Vice President Leni Robredo, who argued that the PET’s initial recount which saw Robredo’s lead increase by 15,000 should be enough to junk the whole protest.

In its comment dated October 30, the OSG cited section 4(7), Article VII of the 1987 Constitution which declared the Supreme Court as the “sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President” as well as various cases previously decided by the high court.

These cases limited the jurisdiction of the Comelec to exclude annulment of elections based on terrorism, frauds and other illegal practices while granting the Supreme Court, sitting as the Presidential Electoral Tribunal, the power to determine the validity or nullity of votes and to declare failure of elections.

However, the OSG said PET’s jurisdiction does not include calling for special elections as the Constitution confined its mandate to post-election issues and this was not intended by Constitutional framers.

Instead, the OSG argued, it is the Comelec that has the power to conduct special elections under the Omnibus Election Code but only for specific political units.

But the OSG said there won’t be a problem even if the PET annuls the elections in the 3 Mindanao provinces since the outcome will not lead to a “failure to elect.”

“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,” it said.

Marcos, in his third cause of action in his election protest, claimed that the elections in Maguindanao, Lanao del Sur and Basilan were tainted with terrorism, intimidation, harassment of voters and pre-shading of ballots.

He claimed he could still overcome Robredo’s lead of 263,473 votes because she allegedly stands to lose 497,985 votes if the election results in the 3 Mindanao provinces were annulled.

But Robredo argued Marcos is only trying to save a “dying protest” by moving for his third cause of action to proceed despite the PET’s own rules stating clearly that a protest may be dismissed “without further consideration of the other provinces” if the protestant will most probably fail to make out his case after the initial recount involving 3 provinces.

In October 2019, the PET released the results of the initial recount in the 3 pilot provinces of Camarines Sur, Negros Oriental and Iloilo as part of Marcos’ second cause of action.

• PET: Robredo lead grew by 15,000 votes in initial poll protest recount

The initial recount, which covered some 5,417 clustered precincts, added 15,000 more votes for Robredo on top of her 263,000 lead over Marcos. This is part of Marcos’ second of action.

His first cause of action challenging the authenticity of the results of the 2016 elections was already junked in August 2017.

In September, the PET required the OSG and the Comelec to comment on pending issues raised in the election protest.

• SC requires Comelec, SolGen to comment on Marcos poll protest vs VP Robredo

Specifically, PET ordered Comelec to report on whether petitions for failure of elections were filed in the 3 Mindanao provinces, if special elections were held in these areas and what the resuts were.

Both the OSG and Comelec were required to comment on whether the PET is empowered by the Constitution to declare the annulment of elections even without special elections, declare the failure of elections and order the conduct of special elections, and whether the declaration of failure of elections will infringe on Comelec’s mandate under the Constitution.

The Marcos and Robredo camps have 15 days from receipt of the OSG’s and Comelec’s comments to file their own comments.

This is not the first time the OSG sided with Marcos.

In July 2016, self-confessed Marcos supporter Solicitor General Jose Calida backed Marcos’ 50% shading threshold, leaving the Comelec to defend its decision to impose a 25% shading threshold.

• OSG backs PET ruling on Bongbong-Leni poll recount threshold
• Comelec sides with Robredo, holds ballot shading threshold at 25 percent

In September 2018, the PET ruled in favor of the Comelec’s position, which the Robredo side hailed as a “victory.”

• PET upholds 25 pct shading threshold for 2016 polls

The OSG had previously sought to secure the statements of assets, liabilities and net worth of SC Associate Justice Marvic Leonen, the member in charge of the election protest, for the purpose of filing a quo warranto petition.

The Supreme Court unanimously junked that request in September and also dismissed on Tuesday a motion for reconsideration.

• SC blocks attempt to secure Leonen's SALN for quo warranto plea