The farce that Comelec is turning out to be  

I have always held Commission on Elections information director James Jimenez in high regard. In fact, I have often wondered why he, after serving on that body for so many years, has not been appointed commissioner yet. Tonight, I felt glad he’s not been made commissioner! I heard him dish out so much bunkum – a milder term than what I thought of originally – in just 30 minutes on Christian Esguerra’s “After the Fact” program.  

I understand the need for him to come to the defense of Comelec at the height of a brewing scandal, but he did so in quite an abhorrent manner. How stupid does he think we are? 

He was asked to comment on the fight between Rowena Guanzon, the outgoing presiding commissioner of Comelec’s First Division, and Commissioner Aimee Ferolino on the delay in the release of the ruling on the disqualification case against Bongbong Marcos. Instead of clarifying the issues, he muddled them up some more with half-truths, misleading facts and even double-speak. 

While pretending to be objective and not taking sides – he was speaking, he said, “from outside,” not being a member of the division – he rushed in the next breath to the defense of Ferolino. And then he laid all the blame on Guanzon. 

There is no delay in the release of a ruling, he claimed. If there was a feeling of frustration among the public, it was because “a deadline was set which probably should not have been set.”  

Asked how long a Comelec division’s deliberations should last, there were no rules, he replied. “It takes as long as it takes.” 

Ferolino needed time to study “three cases,” he said, and should be given all the time she needs because a ruling “should be properly considered, it should be rational and should be well written.” 

“Why rush a decision just because someone will retire?” Jimenez said. 

Furthermore, he added, we must also be considerate of Ferolino, who has to study and weigh all the evidence before making a decision on something as complicated as “three cases.” All the while, I thought there were three similar complaints that were simply consolidated into one case. That’s how it’s done – It’s one case regardless of the number of counts or complaints. 

I am not a lawyer and don’t know much about election laws. This is not to say I don’t have much to say on the matter, but let me not bore you with my own opinions or interpretation of the facts. 

Instead, let us look up to the experts. One of them is Leila de Lima, a “de campanilla” election lawyer for many years before she was drafted into government service. She wrote a commentary on the brewing scandal at Comelec that the online news platform Rappler published earlier today. And here I will quote from that commentary of hers extensively. 

What Jimenez and Ferolino are not saying, according to De Lima, is that the Comelec has very specific rules on how long Comelec and its various divisions should take in arriving at and promulgating a decision, especially in “special cases” such as that for Marcos’ disqualification. 

She cited Sec. 8, Rule 18 of the Comelec Rules of Procedure. “Any case or matter heard by a Division shall be decided within ten (10) days from the date it is deemed submitted for decision or resolution, except in special actions and special cases which shall be decided or resolved within five (5) days…”  

De Lima noted that the complaints against Marcos were heard in a preliminary conference last January 7 and that the case was deemed submitted for resolution upon the submission of the parties’ memoranda after two days.  

“The five-day period for the writing and promulgation of the decision on the Marcos cases therefore started either on January 9 or 10,” De Lima said. 

Ferolino has been sitting on it for more than 20 days! 

“Strictly following the rule of the Comelec on the disposition of cases,” De Lima said, “the First Division therefore had until January 14 or 15 to promulgate its decision on the Marcos cases. Guanzon claims the First Division agreed on January 17, or at least two days later than that provided in the Comelec rules. In the event that Ferolino meets Guanzon halfway and comes out with a decision before Guanzon’s retirement on February 2, the release would by then have gone beyond fifteen (15) days of the original deadline provided for in the Comelec Rules.” 

De Lima, noted, however, that this rule is hardly ever followed. 

“In my practice as an election lawyer, rarely had the Comelec followed these deadlines on the disposition of cases which Comelec itself had set. But does this mean that Ferolino was right in ignoring the deadline set by her Presiding Commissioner which, in any case, was amply supported by the Comelec rules insofar as the prescribed period for the disposition of cases is concerned? Hardly.” 

“If not a joke, the deadlines set by the Comelec rules serve as a guideline or benchmark, at the very least. Although it has been the long practice among Comelec Commissioners, the time period for the writing and promulgation of decisions cannot simply be left to the discretion of the commissioner-ponente. In the first place, this period is set in the Comelec rules, probably not in stone, but at least on paper…. 

“This is what Guanzon attempted to remedy. As Presiding Commissioner, Guanzon had the authority to remind the ponente of cases in her Division on the deadline in the writing of decisions. More so in cases of this kind where a leading presidential candidate is sought to be disqualified. In this instance, she is fully supported by the Comelec rules, albeit probably not by Comelec practice.” 

On Ferolina’s allegatetion of pressure from Guanzon, De Lima had this to say: 

“Unless the exertion of pressure or influence is of such nature as to amount to illegal acts, such as threats, intimidation, or violence, the same can also amount only to persuasion. Unlike illegitimate influence or interference coming from outside of the Division, there is no prohibition on members of a Division trying to convince other members on the correctness of their position. In fact, the opposite is the principle in collegial bodies. Members are mandated to deliberate, and in their deliberation they are expected to persuade and show the other members the superiority of their opinion. This is the essence of a collegial body. 

“There must therefore be a distinction between persuasion and coercion. Ferolino appears to have been neither persuaded nor coerced, since evidently, she is sticking to her own judgment….” 

“Ferolino forgets that under the Rules, she is actually mandated to take into consideration the opinions of the other members of the Division when she writes the decision on the case,” De lima added, citing Section 1, Rule 18 of the Comelec rules which provides that “the conclusions of the Commission in any case submitted to it for decision en banc or in Division shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion of the Commission or the Division.” 

“In the absence of deliberations, Guanzon’s written opinion should take its place. Commissioners must be disabused of the notion that a proprietary claim attaches in the raffling of a case to a ponente. Despite the raffle, the case remains to belong to the Division. In writing the ponencia, the ponente should still be guided by the opinions of her two other colleagues in the Division, not only her own. The Marcos cases are not Ferolino’s to dispose of single-handedly, even as ponente. She still is only a 1/3 part of a Division of three. Besides, what kind of undue influence and pressure can a retiring Presiding Commissioner exert on another commissioner, considering the fact that Ferolino even had no intention to meet Guanzon’s January 17 deadline?”  

As to Guanzon’s alleged premature disclosure of her separate opinion, De Lima wrote: 

“As to Guanzon’s alleged premature disclosure of her opinion on the Marcos case and the identity of the ponente, it is clear that she has done so acting essentially as a whistleblower. Her actions are the consequences of a much-abused practice in the Commission where the ponente, instead of the En Banc or the Division, determines when a decision is released and promulgated despite the periods set in the Comelec rules. She also knows that she is an impeachable official, and therefore cannot be disciplined by the Commission for whatever transgression she might have committed. 

“The real rule, however, that Guanzon violated is not that the identity of the ponente should be kept confidential, or that separate opinions should not be announced before the promulgation of the main decision. What Guanzon actually violated is the Old Boys’ Club Code that shenanigans within a collegial body should be kept among the members of said body. No one is expected to rock the boat by exposing external considerations that attend decision-making. But Guanzon obviously refused to abide by this code and be part of the Old Boys’ Club at the Comelec since the start of her term.” 

And where is Comelec Chairman Sheriff Abas? Is he protecting his retirement pay by his silence?  He too is retiring in a few days. 

What a farce Comelec is turning out to be!