“It’s an extraordinary remedy.”
In our analysis of Marcos vs Robredo, my colleague Christian Laluna and I note one more controversy, not related to the ballot revision per se. While the protestant designated three provinces as his pilot provinces for the ballot revision, for his third cause of action, he designated three other provinces—Maguindanao, Lanao del Sur, and Basilan, 2,756 clustered precincts in all—as justifications for the annulment of election results on the basis of terrorism, et. al. And to the end, he maintained that whatever the result of the ballot revision, this third cause of action was distinct enough to survive that result, and be determined separately—and even merit its own recount.
The Tribunal would have none of that (under the maximum-three limit of pilot provinces), leaving the examination of the Maguindanao/Lanao/Basilan ballots dependent on the results of the pilot province recount. And given that the pilot recount failed to prove substantial recovery, there would be no revision of the plus-three provinces. The ponencia went one further: “If, indeed, protestant was convinced of his claims in Lanao del Sur, Maguindanao, and Basilan, then he should have indicated those three as his pilot provinces. But he did not, to no fault of this Tribunal.”
In one perspective, there is merit to the ponencia’s position. If the terrorism and other irregularities the protestant alleges affected the veracity of the vote count, then Lanao, Maguindanao, and Basilan would make better pilot cases than CamSur, Iloilo, and Negros. Even if the plus-three provinces were contextually distinct from the pilot provinces, at the very least picking higher-probability provinces as the pilot provinces might have kept the door open for the lower-probability provinces. Might have—it all depends on the revision results.
But by demanding the annulment of elections, and not merely the revision of ballots, the Marcos camp introduced what is likely the most controversial wrinkle in the case: Whether the annulment action should have been considered separate from the ballot revision action.
The Marcos camp may have alleged that similar, if not the same, fire(s) engulfed all the protested clustered precincts. For the sake of procedural streamlining (and it seems despite the generalized if not purely boilerplate allegations made), he was directed to select max-three pilot provinces for the recount.
He tried to select six, subsuming the plus-three provinces of Maguindanao, Lanao del Sur, and Basilan under an “annulment of elections” cause of action to keep them separate from the actual pilot provinces. That must be how it seemed to the ponente when it stated “If… protestant was convinced of his claims in [the plus-three], then he should have indicated those three as his pilot provinces.”
We do not know if this is Justice Leonen’s apprehension of the protestant’s motives. There does seem to be a strategic angle to the latter making a case for annulment of elections in the plus-three in addition to a regular demand for a recount in the pilot provinces, and “limiting the manual recount to his second and third causes of action”—therefore making a case for recounting in six provinces.
Annulment of elections is an extraordinary remedy. It is extraordinary because it is distinct from the two generally established ways an electoral tribunal is called to contest the proclamation of a winning candidate: The traditional recount and quo warranto.
It is also extraordinary because recognition of this tribunal power is the result of case law. The 2016 case that did so, Abayon v. House of Representatives Electoral Tribunal, is also intimately connected to the sitting Chief Justice at the time of Marcos v. Robredo, Peralta, who in Abayon was a member of HRET hearing Raul Daza’s protest of Harlin Abayon’s proclamation in the 2013 elections, and whose dissent in the HRET formed the backbone of Abayon.
Per Abayon, the PET, HRET, and SET’s respective exclusive jurisdiction to decide all electoral contests for those positions includes the power to annul electoral results for reasons analogous to failure of elections, “necessarily [including] those which raise the issue of fraud, terrorism, or other irregularities committed before, during, or after the elections.”
However, this remedy is warranted only in exceptional circumstances, “exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law had been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the great body of the voters have been prevented by violence, intimidation, and threats from exercising their franchise.”
Given that “failure of elections” and “annulment of elections” share similar factual causes, Justice Leonen took time to weigh the merits of the third cause of action (subsequent technical dismissal notwithstanding). Per the COMELEC’s own report, petitions for declaration of failure of elections within the plus-three provinces were dismissed “on the merits.” Thus the ponencia took the position that, on the merits, there was no cause to annul the electoral results either.
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