Why Leni Robredo should file a counter-protest vs Marcos Jr

'To offset any potential votes that Marcos will gain in the recount, it is both strategic and necessary for the VP to take a counter-offensive.... A counter-protest, however, is as expensive as filing a protest.'

Emil Marañon III

1:0:0am August 9, 2016

1:46:51pm August 9, 2016

On June 29, Senator Ferdinand “Bongbong” Marcos Jr filed an election protest before the Supreme Court, sitting as the Presidential Electoral Tribunal (PET), formally assailing the victory of Vice President Leni Robredo.

In his 1,000-page petition, Marcos prayed to set aside Robredo's proclamation and that he be instead declared as the winning vice presidential candidate, on 4 grounds:

The non-compliance of the 2016 Automated Election System (AES) with the mandatory provisions of Republic Act 8436, as amended by RA 9369

The unauthorized tampering of the Transparency Server, which allegedly paved the way for the commission of technical fraud during the transmission of votes

The presence of 3 million undervotes, which Marcos claims to be “highly unlikely”

The existence of massive electoral fraud on election day, particularly in Basilan, Maguindanao, and Lanao del Sur. He also moved for the recount votes in 36,000 precincts in 22 provinces and 5 cities also on ground of various irregularities.

It must be noted at the outset that, in an election protest case, the only triable issue is who between the protestee and the protestant got the higher number of valid votes. This sets the direction, scope, and limits of the inquiry. 

The “protestee” refers to the winning candidate, while the “protestant” refers to the candidate with the second or third highest number of votes who contests the victory of the protestee.

LONGEST PROTEST DOCUMENT. Election lawyer Romulo Macalintal (extreme left) says the Presidential Electoral Tribunal could have postponed action on the election protest because of its length – 1,000 pages, with 20,000 annexes. File photo from the Leni Robredo Media Bureau

To resolve this issue, all the ballots from the contested precincts are metaphorically laid down on the table and manually counted. Thereafter, parties are allowed to either “object” or make a “claim,” which will then be submitted for decision.

A party can make an “objection” over a ballot on the sole ground that they contain “identifying marks” or those intentionally placed to identify the ballot or the voter. If the objection is sustained, the ballot is invalidated and the vote it contains is disregarded.

On the other hand, “claims” can be made only under two circumstances:

First, in cases where there are “voting marks” or those markings placed reasonably close to the ovals that may appear to show the intent of the voter to vote for a candidate.

Second, against those ballots containing votes for the contested position which were rejected by the vote-counting machine and not counted on election day.

At the end of the proceeding, if the recount result materially varies from the election day result, the latter is set aside and a new winner is declared. Otherwise, the election day result is sustained.

Election protest cases rise and fall on the result of the recount. This is founded on the core principle in election law that the ballots – once their authenticity and integrity are established – are the primary and best evidence of the intention of the voters.

Following all of these parameters, we can now examine the allegations in Marcos’ protest.

First, compliance of the 2016 AES with the minimum mandatory requirements of RA 8436 and RA 9369, and the effect of the tampering of the unofficial Transparency Server, are issues that may not be tried in an election protest case, unless Marcos proves that such allegations actually affected the final result.

Moreover, the point of the protest recount is precisely to disregard the result yielded by the questioned AES, and revert to manual counting of the physical ballots to determine the real winner. 

It can be argued that, in filing the election protest Mr Marcos waives his objections over those issues. It must be noted that effect of an election protest – as also explicitly prayed for by Mr. Marcos – is for him to be declared and proclaimed as the winner of the 2016 vice presidential election. How can one possibly pray to be proclaimed as the “winner” of an election, which at the same time one claims to be null and void? Those are two irreconcilable and inconsistent positions that technically cancel each other. 

Second, as regards the issue of undervotes, Marcos cannot claim that all 3 million as his without first proving that they were indeed cast in his favor and not mere abstentions. It must be recalled that Mar Roxas’ protest in 2010 also hinged on this issue, which he ultimately failed to prove. But then, again, this is the very purpose of the recount.

The only tenable grounds among those raised by Marcos is the allegation of election fraud in 22 provinces and 5 cities, which he prayed to be recounted. In this case, all of the ballot boxes from these areas will have to be shipped to the recount locations as maybe designated by the PET. As a cost-saving measure, the parties may also request for the printing of the ballot images before the Comelec Main Office in Manila and use the same for the recount in lieu of the actual ballots.

As regards the prayer for the annulment of election results in Basilan, Maguindanao, and Lanao del Sur, it is quite strange to see it prayed in an election protest. A prayer for a wholesale annulment of election results is technically a prayer for the declaration of “failure of elections” under Section 6 of the Omnibus Election Code. However, this, following a long line of cases, is within the exclusive jurisdiction of the Commission on Elections en banc, and not of the PET. 

The PET has summoned Vice President (VP) Leni Robredo to answer this election protest filed by Marcos. The receipt of this summon, including the official copy of the protest petition, marks the beginning of the 10-day period within which the VP’s camp can file her answer to the petition.

While 10 days is reasonably sufficient for the VP to submit her admissions, denials and affirmative defences, it becomes problematic should she choose to file a “counter-protest.” (READ: '10 days not enough to answer Marcos protest')

A counter-protest is essentially an electoral protest, but this time filed by the protestee or the winning candidate, either to attack the results of the elections in places where she believed she should have gotten more votes, or to question the votes garnered by the protestant. 

Under PET rules, the VP is given only 10 days to file a counter-protest, unlike the original protestant who had 30 days.

Like the protestant, the protestee/counter-protestant also has to pay the P100,000 filing fee and the cash deposit amounting to P500 for each established precinct. This could present a serious problem to the Robredo, who only has declared a net worth of P8 million.

While she is not compelled to file a counter-protest, she is not in a position not to do so. The suggestion of some political observers that Robredo should just “sit back and watch” would have been possible if she enjoyed a wide lead over the second placer, but not when her lead over Marcos is dangerously close – only more than 263,000.

To offset any potential votes that Marcos will gain in the recount, it is both strategic and necessary for the VP to take a counter-offensive and file a counter-protest herself. A counter-protest will allow her to make the necessary claims on her unaccounted votes and also attack the votes cast in favor of Marcos.

A counter-protest, however, is as expensive as filing a protest. The cash deposit of P500 for each established precinct (which could translate to millions depending on the scope of the protest) only covers the transportation of the ballot boxes and election paraphernalia to the PET and to the compensation of the members of the revision committees.

Outside of this, the VP will have to pay for lawyers’ fees, expense in evidence gathering, daily meals, and fees of recount revisors and watchers, and other miscellaneous expenses. – Rappler.com 

Emil Marañon III is an election lawyer who served as chief of staff of recently retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.