MANILA — The Commission on Elections has said all pleas to declare failure of elections in three Mindanao provinces that defeated vice presidential candidate Ferdinand “Bongbong” Marcos, Jr. is contesting have been dismissed.
The poll body made this report to the Supreme Court, sitting as the Presidential Electoral Tribunal (PET), in response to a directive to comment on Marcos’ election protest against Vice President Leni Robredo.
The Comelec said eight petitions for declaration of failure of elections were actually filed by different candidates in Lanao del Sur and Maguindanao for the 2016 elections, but these have been dismissed.
All but one of the decisions to dismiss the petitions have become final.
As a result, no special elections were held in those areas.
The report of the Comelec is crucial to Marcos’ claim that fraud tainted the elections in the provinces of Lanao del Sur, Basilan and Maguindanao.
He wants the PET to proceed to his third cause of action, seeking to annul the elections in these areas supposedly due to terrorism, intimidation, harassment of voters, and pre-shading of ballots.
Robredo obtained 497,985 votes in these areas. Marcos is claiming that if these votes were to be annulled, Robredo’s lead of 263,473 votes could easily be wiped out.
The side of the vice president challenged the Marcos camp to present evidence of supposed irregularities while insisting that the whole election protest should be dismissed because he failed to show substantial recovery in the three pilot provinces of Camarines Sur, Negros Oriental and Iloilo.
The PET, in October 2019, released the results of the initial recount which showed Robredo’s lead grew by 15,000 votes.
But instead of dismissing the protest, the PET required both parties to comment and, in September this year, required the Comelec to report whether petitions for failure of elections were filed in the three Mindanao provinces, if special elections were held in these areas, and what the results were.
The PET also asked the poll body to comment on Marcos’ claim that a Comelec division in a separate case said that the 2016 national, local and ARMM elections were supposedly “marked with different forms of election fraud such as massive substituted voting.”
The Comelec pointed out that the election protest Marcos is referring to — the one filed by former Sulu Governor Abdusakur Tan against House Deputy Speaker Mujiv Hataman who were both running for the ARMM governor post at the time — was never resolved on the merits.
It was dismissed due to mootness because the passage of the Bangsamoro Organic Law resulted in the ARMM Regional Governor post expiring on June 30, 2019.
COMELEC: PET CAN ANNUL ELECTIONS, CANNOT DECLARE FAILURE OF ELECTIONS
The Comelec agreed with the position taken by the Office of the Solicitor General that the PET can annul the results of the elections in the three Mindanao provinces, citing section 4, Article VII of the 1987 Constitution which designated the PET as the “sole judge” of all contests relating to the election, returns and qualifications of the President or Vice President.
It also invoked the 2016 case of Abayon v. HRET where the high court affirmed the power of the HRET to annul results of an election as an “indispensable consequence” of its constitutional mandate to decide all election contests involving the members of the House of Representatives.
By analogy, Comelec argued, the PET also has that power to annul the election results but warned that the power has to be exercised “with the greatest care” to avoid disenfranchising votes.
“[A]s to give highest importance to the thousands of votes cast in the elections, the strictest standards and procedures of law must be set in place if the PET becomes strongly and positively convinced to annul the results of the elections,” it stressed.
Citing then-Associate Justice Diosdado Peralta’s dissenting opinion in the Abayon case, two indispensable requirements must concur to justify drastic action of nullifying the election: illegality of the ballots must affect more than 50 percent of votes cast, and it is impossible to distinguish with reasonable certainty between lawful and unlawful ballots.
The SC also said there must be “clear, convincing and strong evidence showing that the protestee is the one responsible for the unlawful acts complained of.”
“[T]he nullification of elections or declaration of failure of elections is an extraordinary remedy. The party who seeks the nullification of an election has the burden of proving entitlement to this remedy. It is not enough that a verified petition is filed. The allegations in the petition must make out a prima facie case for the declaration of failure of election, and convincing evidence must substantiate the allegations,” the poll body said.
The Comelec, however, disagreed with the OSG that the PET can declare failure of elections.
The poll body said the declaration of failure of elections and the holding of special elections belong to its exclusive jurisdiction, not the PET’s.
The annulment of elections, it said, is only an incident of PET’s judicial function to determine who among the candidates garnered a majority of the legal votes cast, while the Comelec’s power to declare failure of elections is part of its administrative function.
It clarified that the annulment of elections will only involve the parties to an election contest and no special elections is required, unlike in a failure of elections where special elections will have to be held because all the positions in the elections are affected.
Asked if the results of the initial recount mooted Marcos’ third cause of action on annulment of elections in the three Mindanao provinces, the Comelec said that while Rule 65 of the PET Rules gives the tribunal the power to dismiss a protest if it appears that, upon examination of the ballots in the pilot provinces, the protestant failed to make out a case, the PET is the “sole judge” on all questions relating to election contests involving the President and the Vice President.
It suggested that the PET revisit the ruling in Abayon and the 2010 PET Rules to “fill in the gaps” and “preserve the true will of the electorate.”
The Comelec’s submission was signed by lawyers from its law department.
In its own filing, the OSG backed Marcos’ protest by saying the PET has the power to both annul the elections in the three Mindanao provinces, and to declare failure of elections, but not to call for a special election.
The Marcos and Robredo camps have 15 days from receipt of the OSG’s and Comelec’s comments to file their response.