OPINION: It’s 8-6 for Marcos in PET first round

(Updated 9:57 a.m.) BEFORE Chief Justice Lucas P. Bersamin retires on Oct. 18, the Supreme Court sitting as the Presidential Electoral Tribunal is likely to deliver to ex-Sen. Bongbong Marcos a first-round win in his election protest against Vice President Leni Robredo, according to sources.

Our information is that “it’s 8-6 in favor of Marcos” – that is, with the PET putting aside its Rule 65 for an “initial determination” test in three pilot provinces and allowing a continuation of the recount in the remaining 22 provinces and five highly urbanized cities protested by him.

Robredo reportedly lost one vote with the retirement on Sept. 26 of Associate Justice Francis Jardeleza, who sources said was for respecting Rule 65 which provides that the protest shall be dismissed if the protestant fails to show significant vote recovery in the pilot provinces he himself had chosen.

The consensus might still change slightly, sources said, with the retirement on Oct. 26 of Senior Associate Justice Antonio Carpio. But we think his departure will not matter much, because a decision is expected to be finalized earlier, before Bersamin’s retirement on Oct. 18 at age 70.

The three vacancies left by Jardeleza, Bersamin and Carpio will be filled by President Duterte, who has shown a preference for Marcos over Robredo. Before his term ends in 2022, all 15 members of the high court will be his appointees.

The application of the PET’s Rule 65 is similar to the preliminary investigation of criminal complaints by prosecutors to determine if there is probable cause, if there is a case worth pursuing. https://tinyurl.com/y288qtvt

The same “initial determination” rule is being used by lower courts hearing local election protests, except that instead of three pilot provinces the protestant is made to pick as test areas 20 percent of the precincts he is protesting.

The result of the recount that started in April last year has been submitted to the PET by Associate Justice Benjamin Caguioa, the member in charge of the revision of the ballots. Reports have it that Marcos failed to make significant recoveries, and that Robredo even gained some 15,000 votes.

But a PET majority may decide to disregard its Rule 65 and the results of the pilot count – thereby setting a precedent that lower courts might adopt in their jurisdiction. Some lawyers say this development may open the gates to corruption and the fixing of poll protests.

After setting aside the recount in the pilot provinces, the PET may decide to continue with the revision of ballots in the remaining areas until Marcos recovers enough votes to surpass Robredo’s lead.

• BBM eyeing ARMM votes’ annulment?

ANOTHER iffy option open to Marcos is to ask for the technical examination of the 2016 voting records used in the provinces of Maguindanao, Lanao del Sur and Basilan involving 2,834 clustered precincts. 

Some justices sympathetic to Marcos may try justifying this detour by citing a Commission on Elections report saying that an earlier examination of some voting records from 200 clustered precincts from those provinces has shown “massive fraud.”

The records were questioned in connection with the ARMM gubernatorial protest of Sakur Tan and former ARMM Gov. Mujiv Hataman in the 2016 election in the Autonomous Region of Muslim Mindanao.

A hint that Marcos may be eyeing this possible action is that in December 2018, he filed a motion before the PET to direct the Comelec to conduct a technical examination of the voting records in the remaining 2,634 (2,834 minus 200) clustered precincts.

The PET deferred action on his motion until after the “initial determination” based on the recount in the three pilot provinces – Iloilo, Negros Occidental, and Camarines Sur – under Rule 65.

If Marcos asks for the technical examination of the voting records from Maguindanao, Lanao del Sur and Basilan and stumbles on reports of fraud similar to those in the earlier Comelec report, he might ask for the wholesale annulment of the votes in those areas.

It so happened that Robredo garnered some 500,000 votes in those provinces. If the votes there are annulled, her nationwide lead of 263,473 votes will be wiped out – and Marcos could then dispense with proceeding with the recount in the remaining 22 provinces and five cities in his protest.

This would force Robredo to press her own counter-protest in 18 provinces.  She would then also be asked to pinpoint three pilot provinces for her revision of ballots. As we said in our Postscript of Sept. 15, this two-way contest is a test of endurance, resources and other variables.

• Pinoy named papal nuncio to Spain

POPE Francis has appointed Archbishop Bernardito Auza, a Boholano, as the new Apostolic Nuncio to Spain. He replaces Italian Archbishop Renzo Fratini, who turned 75 in July, the age at which bishops must resign.

Before his new appointment, Auza was the Holy See’s Permanent Observer to the United Nations in New York, a post he has held since 2014.

A native of Talibon, Bohol, Auza was ordained priest for the diocese of Tagbilaran in 1985. He was incardinated to the then newly formed Diocese of Talibon in 1986.

He entered the Holy See’s diplomatic service in 1990. His first assignment was in Madagascar and was a member of the Vatican’s Permanent Mission to the UN. He also served in the Secretariat of State and the Apostolic Nunciatures in Bulgaria and Albania.

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NOTA BENE: Postscripts are archived at manilamail.com. Author is on Twitter as @FDPascual. Email feedback to [email protected]

(Editor's note: The headline of this article has been changed to make clear that this was published in the newspaper's Opinion section)