Published 20 May 2022, The Daily Tribune

As of this writing, former Sen. Ferdinand “Bongbong” Marcos Jr. is already President-in-waiting with an impressive 31 million-plus votes (or 59 percent of the electorate) that he received in the recently concluded 9 May presidential elections.

On 10 May 2022, the Commission on Elections (Comelec) en banc released its resolution dated 17 January 2022 which dismissed the petition to cancel the Certificate of Candidacy (CoC) of former Senator Marcos Jr.. The Senate and House of Representatives will convene on 23 May to canvass the votes cast for President and Vice President.

The petitioners filed a petition for certiorari with the Supreme Court (SC) and asked for a temporary restraining order (TRO) to stop the Senate and the House of Representatives from canvassing the votes for Senator Marcos Jr. and proclaiming him as the 17th President of the country.

It is important to note that a decision or resolution by the Comelec en banc becomes final and executory after the lapse of five days from promulgation, unless otherwise restrained by the Supreme Court.

The question now is: Will the Supreme Court issue a TRO to stop Congress from conducting the canvass of votes and proclamation of presumptive President Marcos Jr.?

Without in any way pre-empting the Supreme Court and only by way of mere expression of an academic opinion, I am inclined to say “No.”

First, the power of Congress to canvass the votes in a presidential election and proclaim the winning President is mandated by Section 4, Article VII of the 1987 Constitution expressly empowers Congress. In Arroyo v de Venecia (277 SCRA 268, 14 August 1997), the SC ruled that it had no power to review the internal proceedings of Congress, unless there is a clear violation of the Constitution. Likewise, in Santiago v. Guingona, (298 SCRA 756, 18 November 1998) the SC ruled — under the doctrine of separation of powers — [it] has “no authority to interfere” in the “exclusive realm” of a co-equal branch, absent a showing of grave abuse of discretion. The SC ruled in that case that it has no authority to restrict or limit the exercise of congressional prerogatives granted by the Constitution.

Second, there is no appeal from a decision of the Comelec en banc in election cases. The remedy is a special action called certiorari. This means that the burden is on the petitioner to establish that the Comelec committed grave abuse of discretion amounting to lack of jurisdiction. This is not easy to prove.

In the case of Francisco v Commission on Elections (G.R. 230249, 24 April 2018), the SC ruled that the Comelec is the proper body to make the pronouncement against which the truth or falsity of a material representation in a CoC can be measured. The Comelec, as an adjunct to its adjudicatory power, may investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action. (Halili v Commission on Elections, G.R. 231643 and 231657, [15 January 2019]).

Third, and most importantly, the voice of the people is the supreme law when it comes to electoral exercise. The Supreme Court has time and again liberally and equitably construed the electoral laws of our country to give the fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. (Risos-Vidal v Commission on Elections, G.R. 206666, [21 January 2015]).

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