indsight is 20-20 vision. I can only write this piece because certain things fait accompli are already known. So let no one think that I’m saying I’m better than COMELEC Commissioner Rowena Guanzon—I am NOT. Truth is I know next to nothing about election laws.
That said, I agree with the INTENT of Commissioner Guanzon to disqualify Bongbong Marcos. Of course, on record I have gone out on a limb TWICE to predict that they will NOT disqualify him, nevertheless.
There IS ground to disqualify him if you so much as put ten manhours into writing that decision. Conversely, it only takes as much effort to rationalize it the other way.
Remember when they were trying to disqualify Senator Grace Poe on the ground that she was not a natural-born Filipino? She was a foundling, which gave enough wiggle room for the decision to have swung either way. And what about Erap Estrada openly flaunting the worst-kept secret in the world that all his boys are first-born sons from different mothers. If that’s not moral turpitude in this fiercely Roman Catholic nation, I don’t know what is.
My point is, election cases are political cases. Them being resolved on political considerations is par for the course. Even if it looks like they hearken to some criminal standards in defining qualifications and disqualifications, that is all for show believe me.
From the time when you can already file a disqualification petition (November 16, a day after the deadline for substitution of candidates) to when they must start printing official ballots already (middle of January), you’re talking seven or eight WEEKS, tops.
What case throughout the entire Philippine legal system is ever resolved THAT fast? Even the most optimistic lawyer will tell you “we will be in the Court of Appeals for a while, 2 years, maybe 3” and if we have to go up to the Supreme Court “add another year or so.”
For election cases, that simply won’t fly. They must be decided before election day. If en banc, it must be decided within 30 days, and if by Division within 10 days (I think this was amended to 15 days)—from the time the last pleading has been filed by any party. That last pleading would be the Formal Offer of Evidence--and the last to come in was received on January 14. Fifteen days from January 14 would be the 29th which falls on a Saturday. So the decision is not due until Monday, January 31--just a day shy of Comm. Guanzon's retirement.
But there’s a catch in Section 9-b (Part IV, Rule 18) of the COMELEC’s internal rules, which says if any part of the hearings or reception of evidence is delegated to “any of its officials” then you begin counting the 15 days after that official has submitted his report. Apparently, that official, a lawyer in the staff of one of the commissioners, tested positive for Covid-19 yada yada. So the deadline will likely be missed.
But by any measure, that decision would still be rushed. Meeting even its most generously extended deadline cannot be done while at the same time applying the same precision dissection of a criminal case, or the interminable ping-pong exchange in “preponderance of evidence” of a civil case. If you’re looking for thoroughness of analysis, don’t look for it in an election case where decisions are characteristically full of rough edges and grey areas.
But that is not unusual. Political cases are like a homeplate umpire’s call in baseball. If the guy says the ball sailed through the strike zone, the call stands. It’s totally impractical to dispute it. When the umpire says “play ball!” that’s pretty much what you did and just let the game be decided by which team scores more runs. You just don’t hang your entire hopes for the game on that opening pitch.
Arguably, the decision in the Marcos DQ cases is not grossly delayed. It is only “delayed” if you’re shooting for a special deadline—in this case, preferrably before Comm. Guanzon retires.
It’s one thing to “do the right thing” and another thing to get the intended result. Comm. Guanzon acted according to her conscience in voting to disqualify Bongbong. Morally, I agree that’s the right thing to do. But announcing her vote ahead of the two other commissioners in the Division (and then accusing them of disrespecting her) doesn’t achieve the intended result which is, presumably, to create an adverse sentiment against the candidacy of Bongbong Marcos.
If you are a Leni partisan—which I even happen to be—you’ll hate my saying that it’s not only Bongbong Marcos who must tell the truth. We all must, including Comm. Guanzon.
When she prematurely announced her DQ vote, the conventional wisdom is that it would put pressure on the other two commissioners to follow suit. That’s not a valid presumption, or even a reasonable expectation. The COMELEC is a collegial body and they vote on the final resolution of a case after they have fully deliberated, before assigning the writing of the majority opinion to a ponente. Just like the way it’s done in the CA, Sandiganbayan—all collegial bodies, including the Supreme Court.
In short, the members of the COMELEC Division deciding a case already know, more or less, what the collective decision is BEFORE the ponencia (the written decision) ever comes out. They have already voted—whether formally or in principle—BEFORE it is sent to the ponente for styling. Of course, they still vote a second time to formally adopt the ponencia as a final fail-safe measure because, what IF the ponente wrote the exact opposite of what they earlier agreed upon?
Comm. Guanzon makes it sound like she has no idea what the ponente would write and that it is only after the ponencia is submitted that the fate of Marcos would be known. That is clearly NOT true.
In an interview later, she would hurl the wild accusation that the Marcos camp must have bribed the two other commissioners. If she wants people to believe THAT by the mere fact that being inside COMELEC she must know something the rest of us don’t know, I get that.
But the basis cannot be speculative or a rhetorical question: “How do you know that my opinion is the minority opinion? You must know the opinion of the other two. You must have an idea who you bribed.”
It won’t take a lot to convince me that Marcos is capable of bribery and corruption. But it still doesn’t make Guanzon’s accusation fair. We know that her opinion is the minority opinion because she said so.
Not expressly, but there’s no other conclusion if she claims that a senator is trying to delay the decision to await her retirement on February 2. But why delay the decision if it’s the same as her opinion? She certainly would not raise a ruckus about it if she knew that Bongbong would be disqualified anyway, even if she retires.
So Comm. Guanzon must know that the collective decision is favorable to Bongbong—and she knows that from since before they sent it to the ponente. And because we know that SHE knows, then her coming out with her DQ vote is what confirmed to us that the other two must have voted to dismiss. Otherwise, if the other two voted for DQ too, delaying the announcement changes nothing, and Comm. Guanzon would have no reason to be bursting her appendix right now.
Let me put it another way: even she admits exposing what the other votes are, without knowing it. She wrote a separate opinion, which is no different from a dissenting opinion in that it does not conform with the majority opinion. It’s a black-or-white decision. We don’t know what color the other votes are until she said, “hey, guys, my DISSENTING vote is “white!” So the other two cannot be anything but black.
Therefore, insinuating that the Marcos camp have advance knowledge about something that everybody can figure out anyway, no sweat, only comes out looking like it is calculated to make things appear sinister. It’s gaslighting speculation that further erodes public confidence on our electoral system, as ground-huggingly low as it is already.
Her beef is that if the decision comes out after she has retired, her vote would no longer be counted and her dissenting opinion would not form part of the record of the case. True that. But the factor that she is retiring a couple of inches short of the finish line was not created by Marcos.
So what’s happening is Comm. Guanzon is coming off as unhinged, trashing about and jousting with Father Time as she watches her magnum opus of a dissenting opinion slowly getting dragged over the cliff into irrelevance.
She has taken to writing a reprimandatory memo to a collegial peer—in all respects her equal—to urge her to write the decision already.
How different is that from an “Urgent Motion for Early Resolution” that should have been filed by the petitioners? (in fact why, pray tell, have they NOT done that?)
When you are a judge and you take action that it behooves one of the adversarial parties to make, you lose the “cold impartiality of a neutral judge.” After all, the benchmark of neutrality is that a judge must not only be impartial, he must APPEAR impartial.
The assigned ponente, Commissioner Aimee Ferolino-Ampoloquio is junior and less experienced, but nothing in this woman’s track record suggests to me that she is morally depraved, incompetent or corrupt. More importantly, she is an equal peer—Comm. Guanzon is wrong to insinuate that she is “her presiding commissioner” within that Division.
Even in the Supreme Court, no Chief Justice “memos” another “lesser” justice because there is no such thing as lesser or greater Justice. Even the Chief Justice is only “primus inter pares” literally meaning “the foremost AMONG EQUALS.”
The same is true among COMELEC commissioners—they are all equal. So Comm. Guanzon ordering Comm. Ampiloquio to “explain in writing” is, to my mind, too condescending, like scolding and spanking a misbehaving juvenile.
In the same token, challenging the counsel of a party appearing before you to a debate is unjudicial. No court and no judge must ever contend, defend or advocate for her decision—precisely because that is betrayful of the requisite cold impartiality of a neutral judge.
Even my junior law students (we start teaching the Rules of Court in third year) know that when you appeal a decision of a lower court by a petition for certiorari, you implead the judge of the court where you lost as a “public respondent.” You make an “assignment of errors” and you literally accuse the judge of committing serious mistakes in rendering his decision.
But you know what—that judge CANNOT file a memorandum, and he cannot defend his decision in the appellate court. His attitude must be something like “I have decided, I recited the law and the facts on which I based my decision, take it or leave it and I couldn’t care less if you can reverse it on appeal.” A judge has NO STAKES in the outcome or effect of his decision.
Bottomline, you cannot be emotional about your decision and accept no other opinion contrary to your own.
Now here, to me, is the most serious mistake that Comm. Guanzon made: she assumed that her vote to disqualify Bongbong Marcos has its greatest value in being rendered before her retirement and in becoming part of the official records.
That is wrong. History tells us that.
Erap Estrada was impeached not because the sealed envelop containing the details of the Jose Velarde account was opened, but precisely because the Senate voted NOT to open it.
To this day, whatever that envelop contained is STILL NOT part of the official records—but it still cost Erap the presidency.
Comm. Guanzon’s presumably LONE VOTE to disqualify Bongbong Marcos would not have prevailed over the majority opinion presumably dismissing the petition. In other words, if the majority opinion were announced before she retired and her dissenting opinion becomes part of the official records, it would have had no value. It would have changed nothing.
On the other hand, if she retired with no decision out yet, imagine the impact of her releasing her UNUSED opinion during her post-retirement press conference?
“I’m sorry my dissenting opinion will no longer matter and I was no longer able to vote. But I owe it to the Filipino people to disclose that I would have voted to disqualify and this would have been my dissenting opinion.”
THAT would have put the COMELEC on the spot. Even if they dismissed the disqualification case by unanimous vote, the “Guanzon Opinion” would have placed a permanent cloud of doubt over it.
It will not be part of the official records of COMELEC that nobody really cares about. But it will be recorded in the history books that generations will read for years into the future.*
(Read more articles like this in theunheardside.blogspot.com)