OSG backs PET ruling on Bongbong-Leni poll recount threshold

MANILA - The Office of the Solicitor General (OSG) has supported the decision of the Supreme Court (SC), sitting as the Presidential Electoral Tribunal (PET), to deny Vice President Leni Robredo’s plea for lowering the threshold percentage of valid votes in the ongoing election recount.

Senator Ferdinand “Bongbong” Marcos filed an election protest against Robredo and named the provinces of Camarines Sur, Iloilo, and Negros Oriental as his pilot provinces for the manual vote recount.

As Tribune of the People, a manifestation and motion was filed with the PET on Friday by Solicitor General Jose Calida and 22 other government solicitors, urging the tribunal to affirm its April 10, 2018 resolution declaring that Robredo’s bid for the lowering of the current 50 percent threshold to 25 percent has “no basis” in the determination of valid votes.

The OSG decided to invoke its role as Tribune of the People, for the welfare and interest of the public, instead of filing a comment on behalf of the Commission on Elections (Comelec), which has taken the 25 percent threshold position.

The OSG said it sought an extension on the tribunal’s order to comment on behalf of the poll body so it could study the issue, and, subsequently, took the position of the PET.

“The motions [for extension] were filed, not to delay the proceedings in favor of one or the other party, but to study whether the Solicitor General should file a comment on behalf of the COMELEC, or act as the People's Tribune."

“As the People's Tribune, it is the Solicitor General's duty to present to the Honorable Tribunal the position he perceives to be in the best interest of the State, notwithstanding the stance of the COMELEC on the issue of whether the Honorable Tribunal correctly ruled that it has ‘no basis to impose a 25% threshold in determining whether a vote is valid,” the OSG pleading stated.

The OSG stressed the high court’s ruling in the case of Orbos vs. CSC, where it said “[h]e (Solicitor General) should not therefore desist from appearing before this court even in those cases he finds his opinion inconsistent with the government or any of its agents he is expected to represent.”

'SOLE JUDGE'

In supporting the PET’s position and rule on the 50 percent threshold, the OSG explained that Section 4, Article VII of the Constitution vests in the PET, not the Comelec, the “sole” power and authority to judge presidential and vice presidential poll protests, and promulgate rules for the purpose.

The last paragraph of said provision states:
“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose”.

“The power of the PET as the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice-President, to promulgate rules and regulations relative to matters within its jurisdiction, including the determination of the threshold to be used in the recount, is beyond dispute,” the OSG asserted.

“The PET's rule-making power necessarily flows from the general power granted it by the Constitution,” it added.

Pursuant to this constitutional grant of power and authority, the SC, sitting as PET, promulgated its 2010 Rules for presidential and vice presidential election contests, the very same rules that remain in effect up to now.

“On the issue of what threshold will be used in the consideration of votes, the PET has already made such determination. In Rule 43, Paragraph (l) of the 2010 Rules of the PET, it is stated that marks or shades that are less than 50% of the oval shall not be considered as valid votes,” the OSG explained.

Rule 43, Paragraph (1) of the 2010 Rules states:
“In looking at the shades or marks used to register votes, the RC (Revision Committee) shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been made by the voter and shall be considered as such unless reasons exist that will justifo their rejection. However, marks or shades which are less than 507 of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination."

The OSG pointed out that the Comelec Random Manual Audit guidelines that apply the 25 percent threshold percentage is not applicable in the case of PET election protests, stressing that an audit and poll protest are different and observe different rules as well.

'NO BASIS'

In her motion for reconsideration on the PET’s ruling, Robredo argued that the current 50 percent threshold “disenfranchises” voters.

“Valid votes are not counted during the physical count, while counted validly by the [vote counting machine], as they failed to meet the 50% threshold percentage used by the [PET],” Robredo’s motion read.

The objective of the recount to verify the physical count of the ballots has not been achieved with the current threshold, the motion pointed out.

“[T]he physical count is now running inconsistent with the results based on the Election Returns, Statement of Votes by Precinct, Ballot Images and the Voter’s Verifiable Audit Paper Trail (VVPAT). This misleads the [PET] into believing the VCM failed to accurately read and count the ballots.”

The OSG disagreed, and explained that “[t]he 50% threshold imposed by the [PET] in the exercise of its rule-making power is reasonable, considering that the recount of ballots in election protests is done manually.”

“As stated by the PET in its resolution dated April 10, 2018, the imposition of the 50% threshold is based on the inability of the human eye to distinguish the 25% percent threshold.”

The OSG stressed that voters were repeatedly reminded by the Comelec to fully shade the ovals on the ballots for their votes to be properly read by the machine.

“They knew that for their votes to be counted they should fully shade the oval space. Therefore, the supposed disenfranchisement that would result in the application of the 50% threshold has no basis,” the OSG said.

Marcos, who lost to Robredo by a slim margin of 263,473 votes, has also opposed Robredo’s lower threshold bid.