Justice Leonen and the Marcos-Robredo Case

Citing Associate Justice Marvic Leonen’s alleged well-documented bias against him and his family, Ferdinand “Bongbong” Marcos Jr. is asking the Supreme Court, sitting as Presidential Electoral Tribunal, to re-raffle his electoral protest case and for Leonen, to whom the case is assigned, to inhibit from the case.

The rules for voluntary inhibition of judge or justice are clear. Under Rule 137, Section 1 of the Rules of Court, a litigant may ask a judge or justice to inhibit in a case on the ground of bias, prejudice and partiality. But mere imputation of impartiality or prejudgment unsupported by a clear and convincing evidence is not enough ground for a judge to inhibit himself.

As evidence, Marcos cited Justice Leonen’s opinion in several cases involving the Marcos family, particularly Ocampo vs Enriquez where the Supreme Court allowed the burial of President Marcos in the Libingan ng mga Bayani.

It is preposterous for Justice Leonen to inhibit from the election protest on the basis of such evidence. Following this logic, all Justices who voted in the Marcos burial case and other Marcos cases will have to inhibit as well and that is regardless of whether they are in the majority or not. To push this point further, it would be absurd to have a rule that if a Justice votes against a party in one case, that Justice must now inhibit in every other case involving the same party.

Similarly, the case should not be re-raffled. Doing so would cause havoc in the well-established manner that cases are raffled among the Justices. In the future, all a litigant would need to do is to ask for a case to be re-raffled every time he senses defeat.

What raised eyebrows is when Solicitor General Jose Calida and 19 Assistant Solicitors General (ASGs) filed their own motion on the same day, parroting the arguments taken by Marcos. Having engaged many times with the Office of the Solicitor General (OSG) in the last 30 years, I was taken aback by this motion. I was surprised that some ASGs I knew and looked up to joined it.

The motion was filed pursuant to the OSG’s mandate as the Tribune of the People, stating: “The People need to know who the actual winner is in the vice-presidential race. It is unfair for the sitting Vice President to be accused of cheating and equally unfair for the protestant to give him false hope in the guise of calculated yet very slow progress of the protest.”

This is wrong. The term “interest of our people” being invoked is too all-encompassing, nebulous and an all-too-convenient excuse for intervention by the Solicitor General in any election case, from the President to a barangay chairman, that he may fancy to intervene, never mind if the government is not a party to the case.

Both Marcos and OSG motions cite a report in the Manila Times about alleged leaked reflections by Leonen in the early stage of the case. This is also an absurd argument. Aside from being hearsay, such reflections if accurately reported are part of the judicial deliberation process and it would be ridiculous to propose that a Justice inhibit himself from a case just because he told his colleagues in the early stage of a case he does not think a case has any merit. Nobody would be left to decide cases if such a rule was adopted.

A question also comes to mind: Did the Solicitor General and his colleagues not aid and abet a violation of the confidentiality of court processes when they knowingly used, in a public document (the motion to inhibit), a leaked internal reflection of one of the justices?

The OSG motion supports the case of Marcos, a private citizen. They are not lawyering for the government as is their mandate nor for the people as Tribune. This is not right. In fact, some have observed that the filing of this motion violates the Anti-Graft and Corrupt Practices Act (Republic Act 3019) which, among others, prohibit public officials from giving any private party any unwarranted benefits, advantage or preference in the discharge of their official functions. It certainly is not consistent with the spirit of Code of Conduct and Ethical Standards for Public Officials and Employees (RA No. 6713) which promotes a high standard of ethics in public service.

The Marcos protest is a lost cause. He was not able to find additional votes in the three pilot provinces of Camarines Sur, Negros Oriental and Iloilo. Instead, Robredo increased her votes in those provinces. Likewise, the Comelec position that there was no failure of elections in any Mindanao province closes the door on winning his protest by disenfranchising voters from that great island. The end is near for this protest and this latest motion, even if supported by the Solicitor General and his colleagues, will not stop the inevitable.

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