Aborted

Here are the facts of this case.

In the 2007 congressional elections, Henry Duenas was declared the winner in the second district of Taguig. The proclaimed winner won by a less than comfortable margin over his rival.

Subsequently, his rival filed a protest over the outcome. The protest was taken up by the House of Representatives Electoral Tribunal (HRET). A recount of the ballots in the precincts identified by the protestor was undertaken.

In the process of the recount, the HRET found a number of fake ballots. As the recount progressed, Duenas’ lead began to dwindle.

The proclaimed winner of that contest filed a counter-protest wherein he demanded that the votes in the rest of the precincts also be recounted. Presumably, the recount of all the votes would reverse the trend shown by the recount of votes in the precincts identified by the protestors. The initial count, on the basis of the first protest, covered 25% of all precincts in that district.

The HRET required the parties in the counter-protest to raise the money to fund the additional recount. They did not do that.

Notwithstanding, the HRET proceeded with the recount of the rest of the precincts. At that point, the Duenas camp ran to the Supreme Court to seek a temporary restraining order on the continuing HRET recount.

That is, to begin with, a rather odd move. The continuation of the recount to cover the rest of the precincts was precipitated, in the first instance, by the counter-protest of the Duenas camp. It seemed, initially, that this camp was interested in seeing all the votes recounted.

There is no clear explanation for why the Duenas camp had this change of heart about continuing with the recount. That would have settled this controversy once and for all. Even if Duenas had occupied the congressional seat for the majority of the term of office, it remained important to clarify whether the person representing that district was the same one the constituents of that district elected into office.

The HRET, for its part, is the regular institutional mechanism for settling electoral protests. That is its mandate. It seemed that, in accordance with that mandate, the tribunal could decide on counting all votes as it pleases.

Not so, it now appears. The Supreme Court granted the temporary restraining order asked for by the Duenas camp, the same ones who earlier wanted all the votes counted.

Regardless of the merits of the Supreme Court’s decision to grant the TRO prayed for by Duenas, the practical effect of that grant is to freeze the recount and therefore keep Duenas in his seat to the end of the present term of office. In the absence of a completed recount, the proclamation of Duenas as the rightful occupant of that district’s congressional seat stands. The protest is now, for all intents and purposes, moot.

Again, regardless of the merits, if any, of the Court’s decision to issue a TRO on the recount, that judicial act will be interpreted by some as colored with political interest.

Duenas is seen as an ally of the Tinga family, a major political player in that locality. The younger Tinga is mayor of Taguig. His father, who held elective posts in the past, is now a justice of the Supreme Court.

Considering that the electoral case happens in Taguig, the elder Tinga might have chosen to inhibit himself from the Court’s deliberation on the TRO. From available accounts he did not.

Perhaps it would have been best if he did. That would have reduced the outcry, diminished the perception of some that the TRO was induced by some political interest or encouraged by some political influence.

This particular TRO also sets a disturbing precedent. Can any recount, ordered by an electoral tribunal, be summarily aborted by a temporary restraining order?

To what extent do the electoral tribunals enjoy a degree of autonomy and a dose of institutional integrity to do the job they were mandated to do? Has that autonomy not been so seriously undermined by the TRO recently issued?

To be sure, the courts have the right to issue restraining orders when proceedings have been shown to be possibly harming the interest of justice. The question that has been bugging us for years now, given the unlimited powers of judicial review granted the Court by the 1987 Constitution, is this: Are there no boundaries on the issuance of TROs?

I am no expert in law. Perhaps our legal scholars might lend their insight on this matter.

It is easy to imagine that, without clear boundaries on the issuance of TROs, these powerful judicial instruments become vulnerable to being exercised whimsically. They become vulnerable to abuse.

For years, we have complained loudly about this matter of TROs being issued so casually, disrupting processes and delaying proceedings. In the case of the TRO issued on the Taguig congressional recount, it seems the horizon of TRO coverage has just been expanded hugely.

Unlike the two other co-equal branches of government, the judiciary has no tradition of explaining its actions to the public, and in a manner comprehensible by the man of the street. The absence of such a tradition of demonstrating public accountability has made the Court appear imperious. This latest TRO issuance, vulnerable as it is to the argument that it was driven by factional interest, needs at least some effort on the part of the justices to explain it better to all of us.