How PET unanimously junked Marcos’ election protest vs Robredo

Mike Navallo, ABS-CBN News

Posted at Apr 20 2021 05:33 AM

The "abject failure" of Ferdinand “Bongbong” Marcos, Jr. (left) to specify and prove allegations of fraud that doomed his election protest against Vice President Leni Robredo (right).

MANILA — In the end, it was defeated 2016 vice presidential candidate Ferdinand “Bongbong” Marcos, Jr.’s own “abject failure” to specify and prove allegations of fraud that doomed his election protest against Vice President Leni Robredo.

“We have granted parties every opportunity to make and defend their arguments before this Tribunal, the proper forum to hear this case. However, protestant [Marcos] still failed to substantiate his allegations of massive anomalies and irregularities in protestee's favor,” the Supreme Court, sitting as the Presidential Electoral Tribunal, said in a copy of its February ruling released Monday.

“Instead, he chose to make sweeping allegations of wrongdoing and submitted incomplete and incorrect data. His abject failure to support his claims leaves this Tribunal with no other recourse but to dismiss his Protest,” it added.

The release of the PET ruling came 2 months since the historic decision in February, which settled once and for all questions over the legitimacy of Robredo’s ascent to the vice presidency.

Associate Justice Marvic Leonen wrote the 91-page decision (93 including signatures), which said in no uncertain terms: “Any election protest challenging the results of an election must clearly and specifically allege, and then prove, the irregularities that occurred.”

“Specifying the precincts where each violation occurred, and how it transpired, is critical. Failure to do so warrants the protest’s dismissal,” he said. 

All 15 magistrates voted to junk Marcos' election protest, with 8 concurring only in the result. 

Voting fully with Leonen were Senior Associate Justice Estela Perlas-Bernabe and associate justices Alfredo Benjamin Caguioa, Alexander Gesmundo (now Chief Justice), Ramon Paul Hernando, Rosmari Carandang and Amy Lazaro-Javier.

Those who concurred only in the result were then-Chief Justice Diosdado Peralta along with the more junior associate justices Henri Jean Paul Inting, Rodil Zalameda, Mario Lopez, Edgardo Delos Santos, Samuel Gaerlan, Ricardo Rosario and Jhosep Lopez.

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BARE, GENERIC, REPETITIOUS ALLEGATIONS

In the main decision, Leonen pointed out that Marcos’ allegations appeared to be “bare, laden with generic and repetitious allegations” and failed to allege critical details as to time, place, manner of alleged irregularities in 39,221 clustered precincts in 27 provinces and cities in the Philippines. 

Marcos had asked for judicial revision or recount of votes in 36,465 clustered precincts (which SC classified as his 2nd cause of action) and annulment of elections (3rd cause of action) in 2,756 clustered precincts in the provinces of Maguindanao, Basilan and Lanao del Sur where terrorism, violence, threats and other forms of intimidation supposedly took place.

Citing cases and rules in other electoral tribunals, Leonen emphasized the need for an election protest to specify factual allegations in order to deter fishing expeditions and for a practical purpose — to proceed with scrutiny only if "genuinely indispensable” and if it is not a “mere superfluity.”

Marcos, Leonen said, did not even specify some of the precincts affected, nor did he provide supporting affidavits on claims of flying and deceased voters, among other allegations.

The PET could have dismissed the protest under section 21 of the 2010 PET Rules for being insufficient in form and substance but Leonen said the PET gave Marcos opportunities to prove his claims.

The PET proceeded to the preliminary conference where Marcos chose his 3 pilot provinces — Camarines Sur, Negros Oriental and Iloilo — for the initial determination of the grounds for his protest.

The revision or manual recount in these 3 provinces resulted in Robredo’s lead growing by 15,000 more votes from her slim margin of only 263,000 votes over Marcos.

But the PET did not dismiss Marcos’ election protest then, choosing instead to require both parties to submit their memoranda and later on, requiring the Commission on Elections and the Office of the Solicitor General to comment.

DISMISSED UNDER RULE 65 OF PET RULES

A key point of contention is whether Marcos’ election protest could proceed to his 3rd cause of action despite his failure to show substantial recovery in his 2nd cause of action.

Robredo had asked for the immediate dismissal of the election protest citing Rule 65 of the PET Rules which allows the tribunal to dismiss an election protest if, after examination of ballots in the 3 pilot provinces, protestant “will most probably fail to make out his case.” That dismissal need not consider other provinces in the protest.

But Marcos claimed his 3rd cause of action is separate and is not covered by Rule 65. He invoked a 2016 Supreme Court ruling in Abayon vs House of Representatives Electoral Tribunal where the high court supposedly treated annulment of elections as separate from revision.

The PET however rejected Marcos’ position, saying Abayon only settled the HRET’s jurisdiction over election protests. It could not, the PET said, be a binding precedent on whether an annulment of elections may still be entertained after revision since in that case, the prayer for revision was withdrawn.

The PET instead laid down a clear ruling applying Rule 65.

“[T]his Tribunal’s Rules directs the forthwith dismissal of an election protest if, upon examining the ballots and proof in the three provinces exemplifying the alleged fraud or irregularity, this ‘Tribunal is convinced that…the protestant or counter-protestant will most probably fail to make out [their] case, without further consideration of the other provinces mentioned in the protest,” it said, applying for the first time the rule in the context of the PET. Other tribunals have a similar rule.

“This is clear and is not susceptible to any other interpretation,” it added.

The PET also said there can only be 3 pilot provinces in an election protest, not only under Rule 65 of the PET Rules but also in other electoral tribunals. 

Robredo had expressed concern that allowing Marcos to proceed to his 3rd cause of action would, in effect, allow him to add 3 more pilot provinces.

The PET reiterated its position: the 3 pilot provinces were to serve as the “litmus test” to determine whether or not to continue with the election protest.

THIRD CAUSE OF ACTION

Despite its ruling applying Rule 65, the PET proceeded with "the greatest care" in looking at Marcos' 3rd cause of action on annulment of elections.

It examined the affidavits of witnesses submitted and concluded they "lacked specificity and any iota of proof of fraud or irregularity" to warrant annulment of elections.

The PET faulted Marcos for failure to provide information for his 3rd cause of action such as clustered precincts numbers and names of witnesses. It concluded, Marcos waived his right to present witnesses.

And although it differentiated the Comelec's power to declare failure of elections from the PET's power to annul election results, the PET cited the Comelec's rulings that there were no failure of elections nor any ground to annul election results in the 3 Mindanao provinces Marcos named. In fact, there was no petition for failure of elections in Basilan.

Both failure of elections and annulment of election results, the PET said, are based on the "same grounds and quantum of evidence." These include fraud, terrorism and other analogous cases.

The PET hypothetically combined the results of revision and appreciation of ballots in Camarines Sur, Iloilo and Negros Oriental with projected results in Basilan, Lanao del Sur and Maguindanao to conclude: “There is prima facie showing that protestee would still maintain her lead even if we proceed with the third cause of action.”

The PET also said the 3 requisites for the annulment of elections under the Abayon ruling were not present:

  • unlawful ballots must have affected more than 50% of the votes cast on the specific precincts sought to be annulled
  • it must be impossible to distinguish with reasonable certainty between the lawful and unlawful ballots
  • protestee is the one responsible for the unlawful acts committed

SEPARATE OPINIONS

Among the justices who concurred only in the result, then-CJ Peralta and associate justices Mario Lopez and Samuel Gaerlan rendered separate opinions.

Peralta disagreed with Leonen with regard to the application of Rule 65 of the PET Rules. He said the PET Rules are not equipped to address "extraordinary demands" of election contests seeking the annulment of election results and cited the need to form new rules.

Peralta added, election contests should not be resolved on technical reasons.

But it was his dissenting opinion, upheld by the Supreme Court in Abayon, which laid down strict requirements in annulment of elections cases.

Gaerlan, for his part, suggested that pending the amendment or revision of PET Rules, annulment of elections should be governed by the Rules of Court, decisions of the Supreme Court and decisions of the PET following Rule 73 of the PET Rules, which makes them applicable by “analogy or in suppletory character.”

The Marcos camp had insisted on applying Rule 73, not Rule 65, to justify proceeding to the 3rd cause of action.

Lopez proposed a quantifiable way of determining "reasonable recovery" -- by looking at the proportion of protested clustered precincts which went through revisions in pilot provinces and the total number of protested clustered precincts. 

But even with his computation, Lopez said Robredo would still win.

His opinion was concurred in by justices Inting, Delos Santos, Rosario and Jhosep Lopez.

Caguioa, who was the former member-in-charge of the election protest, issued a separate concurring opinion.

He reiterated his position in his October 2019 dissenting opinion where he voted to junk the election protest:

  • Marcos' election protest should be dismissed because he failed to make out a case; 
  • Rule 65 applies to the whole protest; 
  • PET Rules apply to annulment of elections; and 
  • Marcos' 3rd cause of action can't be considered annulment of elections but a petition to declare failure of elections.

“[P]rotestant has only himself to blame for his failure to surmount the litmus test provided under Rule 65 of the PET Rules,” he said.

EFFECT OF THE RULING

The release of the full copy of the ruling on Monday puts to rest questions on whether the entire election protest of Marcos had been junked or only his second cause of action. 

Marcos’ spokesperson, lawyer Vic Rodriguez, had previously insisted only the 2nd cause of action was junked while his 3rd cause of action is still alive.

The Supreme Court eventually clarified the entire election protest was junked. 

Still, Rodriguez asked whether the term “election protest” was used in a “loose sense” to include the 3rd cause of action, claiming the term technically only refers to the 2nd cause of action for revision or manual recount.

ALLEGATIONS OF DELAY

Leonen took the time to address Marcos' allegations of delay in resolving the case. 

He said there is no law requiring election protest to be resolved within a particular timeframe. 

And since the case concerns right to suffrage and the 2nd highest position of the land, the PET, he said, proceeded prudently.

“The case has immense repercussions not only for the parties, but also for future election protests brought before this Tribunal,” he said.

“What this Tribunal faces today is not an extreme case of fraud that deserves further consideration. Protestant failed to make out his case. There is no substantial recovery of votes in the pilot provinces that he himself had designated. To entertain the third cause of action is to risk frustrating the valid exercise of the nation's democratic will and subject it to the endless whims of a defeated candidate,” he added.

PRAISES FOR PONENCIA

Lopez praised Leonen for his "exhaustive discussions" and "well-written ponencia." 

Another source previously told ABS-CBN News, the PET ruling is "one for the books, very well laid-out and very comprehensive."

Peralta also described the decision as “well-written” in a public event in February.

A newspaper report had accused Leonen of "pushing" magistrates to accept his ponencia.

But Peralta publicly said he was the one who called for the vote. 

An SC source confirmed this, adding: 

"No self-respecting justice would be brow beaten into voting that way. 15-0 speaks for itself."

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