By Atty. Emmanuel S. Tipon
“We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard.” – President John F. Kennedy, on why we should fly to the moon.
On June 29, 2016, Ferdinand “Bongbong” Romualdez Marcos, Jr. filed an election protest against Maria Leonor “Leni” Gerona Robredo, who was proclaimed the winner for the position of vice president of the Philippines in the May 9 election by a reported margin of 263,473 votes. This is considered a small margin by most observers. Robredo reportedly obtained 14,418,817 votes to Marcos’ 14,155,344 votes.
Marcos personally filed his protest with the Presidential Electoral Tribunal (PET) at the Supreme Court accompanied by hundreds of supporters. The petition consisted of more than 1,000 pages with about 20,000 pages of supporting documents. The Supreme Court is also the Presidential Electoral Tribunal.
He questioned the results in 39,221 clustered precincts in 25 provinces and 5 cities, which involve about 9 million votes. He asked for the reopening of the ballot boxes and a recounting of the ballots.
The protest is based on three grounds: (1) defective vote counting machines; (2) traditional modes of election irregularities, like vote buying, intimidation, pre-shading of ballots, failure of elections, etc.; and (3) unauthorized introduction by an employee of Smartmatic (the vote counting machine provider) of a new “hash code” or script program into the transparency server of the system resulting in changes in the vote count.
Marcos claimed that the votes presumptively obtained by Robredo were the products of various electoral frauds and irregularities and that Marcos’ votes were significantly reduced to make it appear that he only placed second. He claimed that about 3 million votes were taken from him.
Marcos asked the PET to annul the proclamation of Robredo as vice president and to proclaim him instead as the duly elected vice president.
Two losing vice presidential candidates in earlier elections filed election protests challenging the “winning candidate” – Loren Legarda v. Manuel de Castro, and Mar Roxas v. Jejomar Binay. Nothing came out of their protests.
Will the Marcos protest fly? Based on the allegations, it will fly. But how far will it fly? If there is a will there’s a way to reach the destination despite strong headwinds, such as:
Many people believe that the Marcoses have billions of money. But where is the money and do they have access to such money? People wonder whether Marcos used everything necessary during the campaign? According to an observer, why did he not go to Duterte (who reportedly expressed reluctance to run for lack of money) and say, “Rody, let’s run together. Here is 50 million pesos to start with. If you agree, I will give more and finance the campaign.” Marcos would have won easily with Duterte. For the protest, is Marcos ready, willing, and able to spend at least 100 million pesos or whatever it takes to bring the protest to a successful conclusion? Will he and can he legally accept contributions to finance the protest?
Does Marcos have relevant, credible, and admissible evidence to establish by the required standard of proof that the alleged election irregularities occurred and that they materially affected the outcome of the election to the prejudice of Marcos, in that without such irregularities Marcos would have won? Marcos says he has “clear and convincing evidence”. Veremos.
How long will it take for the PET to decide the case? Robredo will ask for an extension of time to file an answer and counter-protest. The presentation of evidence by Marcos will take many months. Then Robredo will present evidence to support her counter-protest, which will take months. Robredo is expected to do everything to delay the case. She will challenge every ballot, object to every exhibit, cross-examine every one who signed an affidavit, and question every step taken by Marcos. She will file motions for postponement. Unlike American courts, Philippine courts are generous in granting postponements.
Marcos reportedly said that he believes the PET will not take long to resolve this case because he has plenty of evidence and he has taken a different approach. How different is his approach from those of Legarda and Roxas in their protests? Marcos submitted as part of his petition the voluminous documents constituting his evidence. This is a good legal strategy because these pieces of evidence now form part of the record. The PET cannot simply ignore them, although it could strike them out.
If Marcos will simply ask the PET to have the questioned ballots inserted in at least 100 untampered vote counting machines and get the total votes, then the protest can be finished in a month. But if the result is against him and he presents evidence to establish the other grounds of the protest, then it will take a lot of time. However, it can be speeded up if he avails fully of pretrial discovery methods frequently used in the U.S. but rarely used in the Philippines.
4. Impartial tribunal.
Will the PET be a fair and impartial tribunal? Or will it be beholden to former President Aquino who appointed most of its members? It has been said that Robredo was Aquino’s “Plan B” (actually it was “Plan C”) to perpetuate his party in power – if Roxas could not win, at least Robredo would be made to win. Then in a reportedly sinister plot Duterte would be impeached or otherwise taken care of and Robredo would become president. The real “Plan B” was to elect Grace Poe. Thus, even though she was not qualified to be president, a majority of the Supreme Court, all Aquino appointees, held that she was qualified. If this same majority remains in the Supreme Court to hear and decide the Marcos protest, can Marcos expect a fair and impartial adjudication of his protest? As Judge Posner pointed out in his book “How Judges Think,” the U.S. Supreme Court is a “political court”. The justices decide cases according to the position of the political party of the President who appointed them, according to John Dean, former counsel of President Nixon. The same might be said of the Philippine Supreme Court (which is also the PET). The latest news is that the Marcos protest has been assigned to the newest appointee to the Supreme Court who was Aquino’s classmate.
Many believe that President Duterte will “help” Marcos because they are friends and that he would be more comfortable with Marcos as vice president. What this “help” will be has not been articulated. One way is to have the Comelec investigated. Another is to have a Supreme Court (PET) majority not beholden to Aquino.
5. Robredo appears likable.
To make an election protest really fly, it must be propelled by righteous indignation against the cheater. Robredo might have benefitted from cheating, but is there any allegation that she did the cheating? Robredo seems to be a likable person. We have not seen her in person but she appears on television to have charm and grace. She is acceptable as vice president to millions. There does not appear to be a strong desire to “kick the rascal out” since she is no rascal.
What happens to the Marcos protest if 3 years from now it has not been decided and Marcos runs for the Senate or if one year from now President Duterte appoints Marcos to a government post? Will PET dismiss the protest for abandonment? The PET did this in the case of Miriam Defensor Santiago against Fidel Ramos when she ran for the Senate. Santiago challenged the PET’s decision but the Supreme Court (which was also the PET) held that she had abandoned her “determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate.” Santiago v. Ramos, 253 SCRA 55 (1996). Under that silly decision, one who files a protest cannot even get a job to be able to eat and to finance the cost of the protest otherwise the protest will be deemed abandoned. This is another example of “Famous Cases Make Bad Law.” PET should allow the protest to continue even if Marcos gets a job. The people deserve to know the truth.
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He is co-author of the best-seller “Winning by Knowing Your Election Laws” published by Rex Publishing. He writes columns for Filipino-American newspapers and co-hosts “The Tipon Report,” Honolulu’s most witty and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration and other federal laws. Tel. 808-225-2645. E-mail: firstname.lastname@example.org.