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“Sometimes, elections do not end when the polls close.”

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I end this series with the three separate opinions delivered in Marcos vs. Robredo. One of them is Chief Justice Diosdado Peralta himself, the backbone of Abayon. He, along with Justice Samuel Gaerlan, opined that annulment of elections is distinct enough from vote recount (and quo warranto) that it should not be affected by a Rule 65 dismissal in the pilot provinces. Gaerlan pointed out precisely that annulment of elections is introduced in case law, not the PET Rules or elsewhere in statute law, and in the absence of new Rules to be written on the matter, could be governed by the existing Rules of Court and case law—in short, no explicit rule, no explicit application. Peralta agreed: “the current PET Rules… [are] not equipped to address the extraordinary demands of [the remedy of] annulment of election results.”

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Justice Caguioa took a different tack more aligned with the ponencia. His opinion was that Abayon did not create annulment of electoral results as a distinct cause of action, as the HRET governed Daza’s prayer for such under the applicable HRET rules and as part of his general protest of Abayon’s proclamation. Thus to Caguioa, a Rule 65 dismissal would also kill an annulment of election results prayer.

He also had a couple more observations of the protestant’s prayer, the second touching on the distinctions between an electoral tribunal’s “annulment of elections” power and Comelec’s analogous “failure of elections” power. Of the first, he shared the ponencia’s observation on the third cause of action’s evidentiary merits.

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The second is more interesting. Because the protestant prayed for a technical examination of the plus-three provinces’ ballots, wherein he questioned “not the validity of the votes cast for protestee but the validity of the ballots themselves,” alleging differences in the signatures of electoral officials in the election result documentation, to Caguioa he was not only attacking the protestee’s votes, but the votes for every other electoral position on the ballot as well.

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Here the Associate Justice brings Abayon back to play. It distinguished that in annulling electoral results, an electoral tribunal was only annulling the results of a specific contest (e.g., presidential), whereas when Comelec declares a failure of elections, it affects all the electoral contests in the affected locale. By attempting to have the ballots themselves declared invalid due to fraud, terrorism, et. al., Caguioa opined that what the protestant was asking for in effect was not for annulment of electoral result, but for a declaration of failure of elections. Which meant that jurisdictionally, Marcos should have gone to Comelec, not PET.

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Granted, as a separate opinion, Caguioa’s opinion, or for that matter Peralta’s or Gaerlan’s, set no binding precedent. Yet they, Abayon, and Marcos’ separateness gambit, reflect the evolution and revolution of election case law, stemming from the different jurisdictions of Comelec and the electoral tribunals, and the need to respect the will of the electorate but recognize exigent circumstances. (It is only in late 2015, for example, that the Aguinaldo condonation doctrine was abandoned in Carpio-Morales v. Court of Appeals and Binay.) And even if the ponencia cursorily delved into the merits of Marcos’ evidence for annulment of elections, its otherwise reliance on the technical appreciations of Abayon may invite renewed scrutiny in future electoral protests, scrutiny that will no doubt draw argument and courage from the Separate Opinions.

As Marcos v. Robredo demonstrates, as sure as the West Philippine Sea lies where the sun sets, a well-motivated candidate will reach at any tool, take whatever route he could find, to assail his opponent’s victory. And on the Comelec and the electoral tribunals rests that daunting, even terrifying task to weigh the merits of his case against the will of the electorate and the voter’s right. Sometimes, elections do not end when the polls close.

Justice Mario Lopez also has a separate opinion. His position is that while an electoral protest requires specific allegations, they did not need to be so stringent as the ponencia ruled. “[O]nly allegations are needed to warrant ballots’ examination, [but] the protestant must still demonstrate that the alleged fraud and irregularities exist during the initial determination.”

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Lopez was curious, however, on the silence of the Rules on a couple of matters, especially on what “reasonable recovery” is. His Separate Opinion took the opportunity to provide a formulaic definition of the percentage of revised pilot province precincts over the total number of protested clustered precincts, to gauge whether a protestant’s recovery of votes in the pilot provinces demonstrates “reasonable recovery.” The merits of whether Lopez’ formula could capture every foreseeable case of reasonable recovery demands a separate discussion, but suffice to say he does identify a hole needing to be filled in the electoral tribunal rules. And against that formula, Marcos still failed to demonstrate reasonable recovery.

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What is clear from the analysis Christian Laluna and I have shared in this series on Marcos v. Robredo is that the Supreme Court was objective and deliberate in dismissing the protest. In applying the two big principles of suffrage – voters’ right to vote and those votes to be counted – the Supreme Court did the right thing for democracy. Come 2022, we can only hope it will do so as well.

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