Carpio says his retirement means ‘one less vote’ for Robredo in poll protest

Though he "couldn't anticipate" how the sitting Supreme Court justices would decide, former justice Antonio Carpio said Thursday his retirement may mean a tougher time for Vice President Leni Robredo in former senator Ferdinand "Bongbong" Marcos, Jr.'s election protest.

"Yes, because that's one less vote, but I think the court will also consider the implications of all this," Carpio said, referring to a possible next stage for the contest, when asked in an interview with ANC if he believed the case will be "more difficult" for Robredo.

Only Carpio and Justice Alfredo Benjamin Caguioa voted to dismiss Marcos' protest after they found he had failed to make a "substantial recovery" of votes in the manual recount involving his pilot provinces of Camarines Sur, Iloilo and Negros Oriental.

Marcos chose these provinces as the ones that "best exemplify" his allegation of fraud in the 2016 elections. But the recount showed that Robredo increased her original 263,473-vote lead over Marcos by over 15,000 votes.

Carpio and Caguioa lost, 11-2, in the Presidential Electoral Tribunal's (PET) most recent vote on the three-year-old case earlier this month.

Citing due process, the PET ordered the parties to comment on the recount reports and on issues regarding Marcos' bid for the annulment of votes in three other provinces: Lanao del Sur, Maguindanao, and Basilan.

"I don't know how the members of the court will finally decide because those who didn't join us, the 11 who voted to require the parties to first comment... we really don't know what is their final decision," Carpio said. "It's just a postponement of the decision. I couldn't anticipate how they will vote."

Carpio had warned in his dissenting opinion against a change in court rules to "accommodate" Marcos: he said existing rules say the tribunal must decide whether to dismiss the protest or not after a consideration only of the three pilot provinces.

He retired on October 26 after 18 years in the High Court.

"If you allow a protestant to go outside of the pilot provinces... that will prolong the election contest and that will change the rules, because in the HRET [House of Representatives Electoral Tribunal] and the SET [Senate Electoral Tribunal], we have always followed that," he said Thursday.

"If we allow other precincts to be considered then that will be a departure and we have to consider the ramifications of that," he added.

Citing jurisprudence, the retired justice said the PET "can annul elections long after the elections were held" in a poll protest case, but that it has to look into each voting precinct.

He explained in the interview that votes in a precinct will be annulled if 50% +1 of votes there are found to be illegal. If less than that, he said they will have to look at each individual vote and count the ones that are legal.

"After the Comelec has lost jurisdiction in a protest case before the SET and HRET and the PET, it's difficult. In fact, you have to prove 50% +1 of the votes are illegal," he said.

In his dissenting opinion, Carpio wrote that proceeding with the annulment of votes in Maguindanao, Lanao del Sur, and Basilan will necessarily mean a recount of votes outside of the pilot provinces, violating the three-province rule under Rule 65 of the 2010 PET Rules.

Reports say Associate Justice Marvic Leonen is now in charge of the case after Caguioa, the former ponente, lost in the recent vote. Representatives for the parties said they have heard as much but have not received formal notice of the change.

Asked about this development, Carpio said it will "initially" have no effect because the PET still has to decide whether to allow the three Mindanao provinces to be considered.

"If the court will allow three more provinces to be considered, then that's material for the ponente because the ponente will be in charge of the revision and recount of the three more provinces," he said.

"But if the court will say that 'we don't have to go to the three other provinces in the ARMM, we will decide this based on the three pilot provinces chosen by Marcos,' then the transfer of the case to Justice Leonen would not be that material."

Leonen, Caguioa, and Senior Associate Justice Estela Perlas-Bernabe, who are all Aquino appointees, are the only remaining members of the High Court who were not appointed by President Rodrigo Duterte.

Duterte will also soon have to fill three vacancies for associate justice: two created by the retirement of Carpio and of Associate Justice Francis Jardeleza, and one by Diosdado Peralta's appointment as chief justice. — BM, GMA News