The Office of the Solicitor General has asked the Supreme Court, acting as Presidential Electoral Tribunal, to sustain its earlier ruling that the 25-percent shading threshold in determining the validity of a vote has no basis.
In a manifestation, the OSG through Solicitor General Jose Calida prodded the PET to deny for lack of basis the motion filed by Vice President Leni Robredo seeking to uphold the 25 percent shading threshold in determining the validity of votes in the vice presidential race during the 2016 national elections.
Calida said 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, which has taken the 25 percent threshold position.
“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 percent threshold in determining whether a vote is valid,” Calida said.
The OSG backed the PET’s ruling on the 50 percent shading threshold, saying 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 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,” he said.
“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,” Calida added.
He said the PET’s rule-making power necessarily flows from the general power granted it by the Constitution.
The PET promulgated its rules for presidential and vice presidential election contests in 2010, and the same rules remain in effect today.
“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 percent of the oval shall not be considered as valid votes,” Calida pointed out.
In the resolution dated April 10, the PET denied Robredo’s plea to direct the head revisors to apply the correct threshold percentage as set by the Comelec in the revision, recount, and re-appreciation of the ballots, in order to expedite the proceedings for lack of merit.
“Protestee’s (Robredo) claim that the Comelec, as purportedly confirmed by the Random Manual Audit Guidelines and Report, applies the 25 percent threshold percentage in determining a valid vote is inaccurate,” the PET said.
PET said it is “not aware of any Comelec resolution that states the applicability of a 25 percent threshold; and the Tribunal cannot treat the Random Manual Audit Guidelines and Report as proof of the threshold used by the Comelec.”
“In fact, Comelec Resolution No. 8804, as amended by Comelec Resolution No. 9164, which is Comelec’s procedure for the recount of ballots in election protests within its jurisdiction, does not mention a 25 percent threshold,” it added.
“Prior to the amendment in Resolution No. 9164, Rule 15, Section 6 of Resolution No. 8804 states that any shading less than 50 percent shall not be considered a valid vote. The wording is, in fact, the same as Section 43(1) of the 20 I 0 PET Rules. Comelec Resolution No. 9164, however, removed the 50 percent threshold but did not impose a new threshold,” the PET said.
The PET noted that it is consistent with PET’s rules, adding that while the 2010 PET rules state the 50-percent threshold, the 2018 Revisor’s Guide “did not impose a new threshold.”
Further citing the 2018 Revisor’s Guide, the PET also found Robredo’s claim of a “systematic reduction” of her votes “without basis and shows a misunderstanding of the revision process.”
On April 19, Robredo filed the motion for reconsideration asking the PET to set aside its April 10 resolution denying her plea for the 25-percent threshold to be applied.
The threshold adopted by the Comelec is designed to scan every oval on the ballot and count as a valid vote those that contain appropriate marks based on pre-determined sharing threshold. Although the voters are told through the voter information to fully shade the ballots, the shading threshold was set at 25 percent of the oval space. Comelec said the purpose is to ensure that votes are not wasted due to inadequate shading.
The camp of former senator Ferdinand Marcos Jr. has already opposed Robredo’s motion and asked the PET to dismiss her plea.
In his comment, Marcos said there was “no categorical declaration” in Comelec resolution No. 16-0600 that the 25-percent shading threshold was adopted by the poll body en banc “during the judicial recount and revision of ballots in election protest.”
The PET started the recount last April 2 and said it could not determine yet when the recount would be finished.
Meanwhile, the Robredo camp has asked the PET to compel the spokesman for Marcos to identify those responsible for the bringing in of a plastic magnifying lens into the recount venue, and its use by a Nestor Borromeo, a revisor from the Marcos camp.
Revisors are the individuals in charge of recounting and objecting to the ballots undergoing the recount, officially called the revision process. Revision committees are led by PET employees called head revisors, and composed of one revisor each from either party.
Under the rules set by the PET, both parties may bring only papers into the revision venue.
Robredo’s motion stated that Borromeo has already been ordered by the PET to explain why his accreditation as a party revisor should not be withdrawn.
Earlier, Marcos lawyer Vic Rodriguez called Robredo’s plea a “desperate” move. “What difference will this make on the recounting of votes?” he said, in a statement after the manifestation was filed.
“The people on the revision floor were well aware that the plastic child’s magnifier was being used and never complained. Why should they? Some revisors wear eyeglasses so they can see better,” Rodriguez said.
In its pleading, Robredo’s camp considered Rodriguez’s statement as an admission that some individuals inside the recount venue allowed Borromeo to bring and use the magnifying lens in the area despite knowing it was prohibited.
“Attorney Rodriguez, a lawyer and an officer of the court, has a responsibility to guide the honorable Tribunal in determining the truth,” Robredo said.
“More importantly, this will dispel any wrong information being fed to the media and the public regarding this election protest,” she added.
The PET is conducting a revision of votes from three pilot provinces chosen by Marcos—Camarines Sur, Iloilo, and Negros Oriental—in connection with his pending challenge to Robredo’s victory in the 2016 elections.
Marcos lost to Robredo by over 260,000 votes, a defeat he claims was brought by massive poll irregularities.