MANILA, Philippines – Solicitor General Jose Calida is leaving the Commission on Elections (Comelec) to defend itself in the ongoing vice presidential electoral protest as he filed a manifestation backing the 50% ballot shading threshold that favors the interest of former senator Ferdinand “Bongbong” Marcos Jr.

Usually, the Office of the Solicitor General (OSG) defends the government – in this case, the Comelec – in cases before the Supreme Court, but Calida said his manifestation is out of his capacity as 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 ruled that it has no basis to impose a 25% threshold in determining whether the vote is valid,” Calida said in a 16-page manifestation sent on Wednesday, July 4, to the Supreme Court sitting as the Presidential Electoral Tribunal (PET).

The manifestation revealed that Calida took the Comelec in as his client at first. Acting as the counsel of Comelec, the OSG filed motions for extension to submit Comelec’s comment on the issue.

“The motions 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,” Calida said.

In the end, Calida dropped Comelec and requested the PET to give the poll body “a fresh period of 10 days from notice to submit its own comment.”

Calida campaigned for Marcos in the 2016 elections, but he has addressed this issue by saying that election affiliations should be left in the past. 

Comelec spokesperson James Jimenez has not responded to our request for comment as of writing time.

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— Jose Callangan Calida (@SolGenCalida) July 6, 2018

50% threshold

The Vice President’s camp is seeking the resolution of the ballot shading threshold issue. In the recount of votes, the Supreme Court, sitting as the Presidential Electoral Tribunal (PET), is applying the 50% shading threshold – meaning, it counts a vote to a candidate’s favor only if at least half of the oval across her or his name is shaded.

Vice President Leni Robredo wants to apply a 25% voting threshold, saying it was the standard applied during the actual elections and changing it to 50% would disenfranchise voters. (READ: EXPLAINER: Paano nakakaltasan ng boto sa recount si Robredo?)

Marcos wants to apply a 50% voting threshold, claiming it was the standard applied when Comelec counted the votes for President Rodrigo Duterte. 

The Marcos camp that the Comelec is claiming it applied a 25% threshold only because resigned chairman Andres Bautista wanted to make sure things would go Robredo’s way in the electoral protest.

But what is Comelec’s official stance?

In August 2016, when the electoral protest was already pending before the PET, the High Court’s Clerk of Court Felipe Anama wrote the Comelec to clarify what standards were used.

In September 2016, Comelec Commissioner Luie Guia responded to Anama and said the poll body set the threshold at 25%. The response was backed by a minute resolution stating the 25% threshold.

Saying it was not aware of any resolution, the PET rejected Robredo’s position and said it would apply a 50% shading threshold. That’s when Robredo filed an appeal, on which the Supreme Court asked the Comelec comment.

The appeal is still pending, and Comelec has yet to file its response with the court.

Calida’s take

But Calida told the court that the PET has the sole authority to decide on electoral disputes. 

Calida said that Rule 43, Paragraph (I) of the 2010 Rules of the PET states that “mark or shades which are less than 50% of the oval shall not be considered as valid votes.”

Calida said that by passing the rules, the PET has already made an authoritative determination of what standards should apply.

“Thus, the decision to choose the 50% cannot be questioned by the protestee,” Calida said.

If Robredo is citing the Comelec’s own resolution, Calida said, “the Comelec has no jurisdiction to impose its own rules.”

Calida said applying a 50% shading threshold will not disenfranchise voters.

“Insofar as the voters were concerned, 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,” Calida said. – Rappler.com