Romulo Macalintal is one of the known lawyers when it comes to election concerns. And the way he speaks is almost convincing – calm, cadenced, measured. He is a respectable guy at least.
Yet, I just can’t help but shake my head whenever I hear him say ad infinitum, that the Presidential Electoral Tribunal has spoken, that Gloria Arroyo’s victory can no longer be questioned, that she won fair and sqaure, and other sentences in those veins.
It is true that in legal terms, her victory in the 2004 elections can no longer be questioned, as the PET had already decided on the issue. But what was the basis for the PET’s decision? Take note that the PET had not even started counting ballots when the decision was issued March 29, 2005. That’s PET Case No. 002. Go read the said decision.
The said decision concentrated on Rule 14 of the PET Rules. It then applied Rule 3 Section 16 of the Rules of Court. As quoted by Justice Quisumbing:
Rule 14. Election Protest.–Only the registered candidate for President or for Vice-President of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner.
Section 16 of Rule 3, Rules of Civil Procedure states:
SECTION 16. Death of party; duty of counsel. – Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
As a background: On July 23, 2004, the late Fernando Poe Jr. filed an election protest against the person declared by Congress acting as National Board of Canvassers “past midnight, in the early hours of June 24, 2004′ as the winner of the 2004 elections. Then on December 14 of the same year, the actor died.
His wife, Susan Roces, filed a motion to intervene as a substitute to her husband in the electoral protest in January 10, 2005. Her motion argued that she be allowed to be the substitute “to ascertain the true and genuine will of the electorate in the 2004 elections”, and
that even if the instant protest case succeeds, she is cognizant that as a mere substitute she cannot succeed, assume or be entitled to said elective office, and her utmost concern is not personal but one that involves the public’s interest. She prays, however, that if subsequently determined that the protestee Gloria Macapagal-Arroyo did not get the highest number of votes for president, for protestee to be disallowed from remaining in office, and thus prevented from exercising the powers, duties, responsibilities and prerogatives reserved only to the duly-elected president or her legitimate successor.
Gloria Arroyo, through her lawyer (who else, Romulo Macalintal), filed a comment asserting that “the widow of a deceased candidate is not the proper party to replace the deceased protestant since a public office is personal and not a property that passes on to the heirs. She points out that the widow has no legal right to substitute for her husband in an election protest, since no such right survives the husband, considering that the right to file an election protest is personal and non-transmissible”.
And I quote more on Macalintal’s arguments as quoted by the decision:
Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the Rules of the Presidential Electoral Tribunal, only the registered candidates who obtained the 2nd and 3rd highest votes for the presidency may contest the election of the president and patently, Mrs. FPJ did not receive the 2nd and 3rd highest votes for she was not even a candidate for the presidency in the election that is being contested.
Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions of surviving spouses to ascertain the vote of the electorate as the Tribunal has jurisdiction only over election protests and quo warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot use “the public interest” to justify her request to be substituted for her husband. “Public interest”, i.e. the need to dispel uncertainty over the real choice of the electorate, is applicable only in election contests, not in an action to merely “ascertain the true and genuine will of the people.” She asserts that the only case herein cognizable by this Tribunal is an election protest involving a protestant and a protestee, not between the electorate and the protestee. Citing analogous HRET cases, protestee avers that in a case where the protestant, the primary adversary in an election protest case dies, the public interest in said protest dies with him.
Protestee also contends that in the adversarial nature of a protest case where one of the parties dies, a correct ruling cannot be had because the dead protestant could no longer refute his adversary’s allegations because death has rendered him hors de combat.
Brilliant guy, isn’t he. And thus, history shows that Gloria Arroyo won because no qualified person filed an election protest; that FPJ’s election protest died with him; that no one can substitute for a dead protestee in election protests; and that public interest applies only on elections, “not in an action to merely “ascertain the true and genuine will of the people”.
The decision is guided by this:
We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit of one’s right to a public office, and second, it is imbued with public interest.
And the conclusion:
Acting on the protest and considering the Notice of the Death, submitted by counsel of protestant RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that Presidential Electoral Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria Macapagal-Arroyo, should be as it is hereby DISMISSED on the ground that no real party in interest has come forward within the period allowed by law, to intervene in this case or be substituted for the deceased protestant.
Nowhere in the decision is a statement that the ballots were examined and recounted. Nowhere is a statement that Gloria Arroyo, through the recount, really got more votes that FPJ. Where in the PET decision can we find that Arroyo won the election fair and square? And yet the crux of Macalintal’s statement that her victory is unquestionable lies only on the facts that (1) FPJ the protestant died; (2) Susan Roces was not a legal substitute for FPJ’s protest; and (3) no qualified person who may contest the elections filed a protest within 30 days after proclamation by the National Board of Canvassers. Yes, her victory can no longer be questioned in any court of law; but would her victory be confirmed by the truth?
Unfortunately, public interest is not in the minds of the members of the PET – the Davide Supreme Court. The public, the people, whose votes are reputed to be stolen – they are not parties to election protests:
She avers that she is “pursuing the process” to determine who truly won the election, as a service to the Filipino people. We laud her noble intention and her interest to find out the true will of the electorate. However, nobility of intention is not the point of reference in determining whether a person may intervene in an election protest. Rule 19, Section 1 of the Rules of Court is the applicable rule on intervention in the absence of such a rule in the PET Rules. In such intervention, the interest which allows a person to intervene in a suit must be in the matter of litigation and of such direct and immediate character that the intervenor will either gain or lose by the effect of the judgment.
Yet it was our votes which were reputedly to be stolen. My vote is personal to me. You take it away from me, you deprive me of my right. Have I not lost anything in this decision? YES! I LOST MY RIGHT TO CHOOSE THE PERSON TO LEAD MY COUNTRY!
I lament the thought that is slowly creeping in my head – the rule of law does not necessarily mean the rule of truth (or justice). The rule of law is fast becoming the rule of technicalities. And it’s all because of lawyers like Macalintal.
And to you, Mr. Macalintal – woe to you, for hiding behind technicalities. You won in the court of law, but not necessarily in the court of truth.
UPDATE: In an interview (in Filipino) with DZMM, Macalintal once again said that the 2004 poll fraud allegations are already closed, and I quote:
Well kahit pa tapos ang term wala naman akong nakikitang anumang ebidensiya. Kung ang sinasabi niya ay ‘yung video na ipinakita n’yo diyan sa isang news item.
Alam mo ano ba ang nakita natin doon, ang nakita natin doon ay dalawa o tatlong taong naglalakad sa dilim ‘yun lamang ang ebidensyang pinatutunayan noon, kung ano ang ginagawa ng taong ‘yon, kung ano ang dala niya walang makapagsabi.
‘Yung video na ‘yon ay hindi nagsabi na mayroong isang balota na nadagdag kay Pangulong Arroyo o kaya ay may isang balotang nabawas kay [Fernando Poe Jr.]
There was supposed to be a video showing that ballot boxes were being transferred, and Macalintal was reacting to this. The highlighted text is roughly translated as such: That video doesn’t show that there is one vote added for Arroyo nor one vote was subtracted from FPJ’s vote.
Nowhere in the PET decision was it stated that there is a vote added for Arroyo nor a ballot subtracted from FPJ. He keeps on harking on that decision, when it only dismissed the protest on the ground of technicality, not because there was a recount.
The opposition is not blameless. They should know the law, yet it did what was done. Maybe Sixto Brillantes is not as brilliant (ironic) as Macalintal. The disunity of the opposition has cost the people a lot. No wonder people like Austero would rather be apathetic.
The said decision merits a few more questions, but as they say, they are moot and academic.