[ PET Case No. 005, October 15, 2019 ]
FERDINAND "BONGBONG" R. MARCOS, JR., PROTESTANT, VS. MARIA LEONOR "LENI DAANG MATUWID" G. ROBREDO, PROTESTEE.
DISSENTING OPINION
CAGUIOA, J.:
I dissent.
The Protest should be dismissed for protestant's failure to make out a case using his pilot provinces. The majority's decision today constitutes a refusal to apply the 2010 Rules of the Presidential Electoral Tribunal (PET Rules) when no reason exists for exempting this Protest.
Rule 65 is clear. It states:
RULE 65. Dismissal; when proper. - The Tribunal may require the protestant or counter-protestant to indicate, within a fixed period, the province or provinces numbering not more than three, best exemplifying the frauds or irregularities alleged in his petition; and the revision of ballots and reception of evidence will begin with such provinces. If upon examination of such ballots and proof, and after making reasonable allowances, the Tribunal is convinced that, taking all circumstances into account, the protestant or counter-protestant will most probably fail to make out his case, the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.
The preceding paragraph shall also apply when the election protest involves correction of manifest errors. (R63) (Underscoring supplied)
The parties and this Tribunal have operated on the fact that the proceedings after the Preliminary Conference shall be on the initial determination of the grounds of the Protest following Rule 65 of the PET Rules. Thus, as early as the Preliminary Conference Order, the Tribunal already explained the nature of the proceedings under this rule, as follows:
Rule 65 provides the Tribunal with a litmus test for protestant's grounds as raised in his Protest. Thus, protestant is given the opportunity to designate three provinces which best exemplify the frauds or irregularities raised in his Protest. These provinces constitute the "test cases" by which the Tribunal will make a determination as to whether it would proceed with the Protest — that is, retrieve and revise the ballots for all the remaining protested clustered precincts — or simply dismiss the Protest for failure of the protestant to make out his case.1
The Tribunal invested countless number of hours following the mandate of Rule 65. The Tribunal retrieved thousands of ballot boxes from three provinces, revised millions of ballots, and ruled on each and every objection and claim of the parties on these millions of ballots.2 After all these, the Tribunal eventually arrived at a final tally: protestee Robredo garnered 14,436,325 votes, increasing her lead from 263,473 to 278,555 over protestant Marcos who obtained 14,157,770 votes.
Despite the clear and unequivocal results of the revision and appreciation shown above, the majority nonetheless refuses to strictly apply Rule 65. Instead, the majority directs the parties to comment on the results, and to submit their respective memoranda on the effect of the results on protestant's second and third causes of action, the Tribunal's jurisdiction over the third cause of action, and assuming it has jurisdiction, the threshold of evidence for the third cause of action, and other issues on how the Tribunal should act on the third cause of action.
The majority puts forward questions the answers to which are already obvious. By this failure to recognize the mandate, public purpose and wisdom of Rule 65's unequivocal directive, all the hard work and effort put into the revision and appreciation for the past three years are wasted.
Rule 65 is plain in its wording and no legal acrobatics are needed to decipher its meaning. It should be simply applied. It speaks of indicating three provinces "best exemplifying" the frauds and irregularities alleged in the Protest, and the revision and appreciation of ballots and/or reception of evidence will begin with such provinces.
The question faced by the Tribunal is simple: after making reasonable allowances, and taking all circumstances into account, will protestant most probably fail to make out his case, following the results of revision and appreciation of the ballots in the 5,415 clustered precincts in his pilot provinces?
Undoubtedly, protestant failed to make out his case. Why not apply Rule 65 now?
Following the language of Rule 65, protestant must show through his three chosen pilot provinces that his Protest has merit. The three pilot provinces must best exemplify the frauds and irregularities alleged in his Protest so that the Tribunal may proceed to the rest of the protested precincts.
Should protestant fail to make out a case, the Tribunal may dismiss the Protest without further consideration of the other provinces mentioned in his Protest.
What is the measure of the merit of the Protest or any election protest, for that matter? Simple: it is a numbers game. It was protestant's burden to demonstrate to the Tribunal through recovery of votes in his chosen pilot provinces that he would most likely overcome protestee's lead. It was incumbent upon protestant to show through the three pilot provinces that the margin between him and protestee had decreased to such an extent that would convince the Tribunal to take a look at the rest of the protested precincts.
Here, the numbers clearly show that instead of narrowing the margin of votes between protestant and protestee, the margin even widened from 263,473 to 278,555.
It is therefore a disservice to the PET Rules to refuse to dismiss the Protest despite its clear and unmistakable lack of basis. Because from the results, what else is there to say and comment on? Under the PET Rules, how else is the Tribunal to decide? To my mind, asking the parties to comment on the foregoing clear and unequivocal results is a failure to terminate and dispose the Protest in a just, speedy, and expeditious manner, when a clear ground exists for its dismissal.
As far back as almost 30 years ago, the public interest involved in the speedy termination of an election contest was emphasized in the 1992 PET Rules:
Dismissal
RULE 61. As public interest demands the speedy termination of the contest, the Tribunal may, after the issues have been joined, require the protestant to indicate, within a fixed period, the province or provinces numbering not more than three best exemplifying the frauds or irregularities alleged in his petition; and the revision of ballots and reception of evidence will begin with such provinces. If upon examination of such ballots and proof, and after making reasonable allowances, the Tribunal is convinced that, taking all the circumstances into account, the protestant will most probably fail to make out his case, the contest may forthwith be dismissed, without further consideration of the other provinces mentioned in the contest.3 (Emphasis and underscoring supplied )
In fact, Rule 2 of the 1992 PET Rules stated that "[i]n case of reasonable doubt, these rules shall be liberally construed in order to achieve a just, expeditious and inexpensive determination and disposition of every contest before the Tribunal."4
In the 2005 PET Rules, Rule 63 was similarly worded as follows:
Initial Determination of the Grounds for Protest
RULE 63. Dismissal; When Proper. - The Tribunal may require the protestant or counter-protestant to indicate, within a fixed period, the province or provinces numbering not more than three, best exemplifying the frauds or irregularities alleged in his petition; and the revision of ballots and reception of evidence will begin with such provinces. If upon examination of such ballots and proof, and after making reasonable allowances, the Tribunal is convinced that, taking all circumstances into account, the protestant or counter-protestant will most probably fail to make out his case, the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.
The preceding paragraph shall also apply when the election protest involves correction of manifest errors. (R61a)5 (Emphasis supplied )
Rule 2 of the 2005 PET Rules also stated that "[t]he Rules shall be liberally construed to achieve a just, expeditious and inexpensive determination and disposition of every contest before the Tribunal."6 This is replicated in Rule 3 of the PET Rules.
Thus, Rule 65 and the construction of the PET Rules implore the Tribunal to achieve a just and expeditious determination and disposition of every contest before it. Since the results clearly show protestant's failure to prove his case, why not dismiss the Protest now? Why is there a hesitation to strictly apply Rule 65?
There ts an underlying wisdom and public purpose in the requirement of pilot provinces in election protests. The Tribunal is duty bound to abide by it.
The use of pilot provinces is common among electoral tribunals. It is applied in election protests before the lower courts,7 the Commission on Elections (COMELEC),8 the Senate Electoral Tribunal,9 and the House of Representatives Electoral Tribunal.10
The dismissal of the protest for protestant's failure to make out a case under Rule 65 is not because of convenience. Indeed, given the divisiveness of elections, the purpose of an initial determination is to weed out protests that have no basis, most especially for a protest involving a national position. Given the massive logistical and administrative concerns, as well as the significant government resources and costs involved in an election protest for the national positions of President and Vice President, the Tribunal is only to proceed with the entire protested precincts and/or provinces if protestant is able to show to the Tribunal the need to look into the other provinces. On the other hand, if protestant fails to make out a case, the Tribunal must dismiss the Protest.
This is necessitated also by the fact that the choice of the pilot provinces was protestant's sole unfettered choice. He could have chosen any three provinces in any of his causes of action. In fact, his choice was not limited to three provinces for a particular cause of action. He could have chosen one province for his second cause of action and two provinces for his third cause of action, or vice versa. He could have, in fact, opted to limit the three provinces to his third cause of action. The permutations are numerous and the decision as to which permutation would best exemplify his cause rested solely on protestant. The only limitation was the number of pilot provinces -not more than three. That protestant, the astute politician that he is, and represented by a well-recognized election lawyer, chose three provinces for his second cause of action which were all known bailiwicks of protestee, was his own legal gamble.
This Protest is a thorny and divisive issue that is of paramount importance to the nation, not just to the parties. And this is where the numbers are decisive. Numbers do not hold any feelings or political leanings. Numbers do not lie. They state things simply as they are. And when the numbers reveal a definite conclusion, the Tribunal would do a disservice to the public and to the nation not to heed the conclusion they provide. The majority cannot turn a blind eye to the numbers, when the figures here confirm that protestee indeed won by the slimmest of margins. The numbers also show that even with the provinces that protestant himself chose to be the ones that would best exemplify his Protest, the margin widened.
Again, I raise the question, what else is there to say and comment on? The language and purpose of Rule 65 are clear. The results of the revision and appreciation are likewise clear. Had this case been before any of the electoral tribunals, the protest would have been dismissed. What is stopping the majority from applying Rule 65? Why is this Protest being treated as sui generis?
Directing the parties to comment on any matter or to conduct any further proceedings achieves no purpose. These are all an exercise in futility. Following Rule 65, the Protest should be dismissed and all pending motions of protestant, including but not limited to his Motion for Technical Examination dated July 10, 2017, Protestant's Extremely Urgen Manifestation of Grave Concern with Omnibus Motion dated December 10, 2018, and Protestant's Extremely Urgent Motion to Set this Election Protest for Preliminary Conference dated August 9, 2019 should be denied.
The Protest lives or dies by the results of the determination under Rule 65 of the PET Rules. Protestant is bound by his choice of pilot provinces. The Tribunal cannot accommodate protestant at the expense of violating its own rules. Protestant therefore has only himself to blame as the results of the revision and appreciation of millions of ballots in his three (3) pilot provinces only lead to one conclusion: the dismissal of his Protest.
WHEREFORE, in accordance with Rule 65 of the PET Rules, I vote that the instant Election Protest be DISMISSED without further proceedings for lack of merit.
Footnotes
1 Rollo, Vol. XXXII, p. 24591.
2 P.E.T. Case No. 005 is the first and only election protest before the Tribunal in which the recount, revision and appreciation process of the pilot provinces were successfully concluded.
3 RULES OF THE THE PRESIDENTIAL ELECTORAL TRIBUNAL, April 18, 1992.
4 Id.
5 THE 2005 RULES OF THE PRESIDENTIAL ELECTORAL TRIBUNAL, A.M. No. 05-11-06-SC, November 15, 2005.
6 Id.
7 SECTION 10. Post-Revision Determination of the Merit or Legitimacy of the Protest Prior to Revision of the Counter-Protest. Immediately after the revision or examination of ballots, or the verification or re-tabulation of election returns in all protested precincts, the protestant shall be required to point to a number of precincts, corresponding to twenty percent (20%) of the total of the revised protested precincts, that will best attest to the votes recovered, or that will best exemplify the fraud or irregularities pleaded in the protest. In the meanwhile, the revision or examination of ballots, or the verification or re-tabulation of election returns in the counter-protested precincts, shall be suspended for a period not exceeding fifteen days to allow the court to preliminarily determine, through the appreciation of ballots and other submitted election documents, the merit or legitimacy of the protest based on the chosen twenty percent (20%) of the protested precincts.
Based on the results of this post-revision preliminary determination, the court may dismiss the protest without further proceedings if the validity of the grounds for the protest is not established by the evidence from the chosen twenty percent (20%) of the protested precincts; or proceed with revision or examination of the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts. In the latter case, the protestee shall be required to pay the cash deposit within a non-extendible period of three (3) days from notice.
SECTION 11. Continuation of Appreciation of Ballots. - If the court decides not to dismiss the protest after the preliminary examination of the evidence from the chosen twenty percent (20%) of the protested precincts, revision with respect to the remaining precincts shall proceed at the same time that the ballots or election documents from the counter-protested precincts are being revised. After completion of the revision of the protested precincts, the court shall proceed with the appreciation and revision of ballots from the counter-protested precincts. (Rule 10, 2010 RULES OF PROCEDURE IN ELECTION CONTESTS BEFORE THE COURTS INVOLVING ELECTIVE MUNICIPAL OFFICIALS, A.M. No. 10-4-1-SC, April 27, 2010.)
8 Section 6. Conduct of the Recount. - The recount of the votes on the ballots shall be done manually and visually and according to the procedures hereunder:
(a) At the preliminary conference, the date, place, the mode of the recount of votes on the ballots from each of the protested precincts and the number of the recount committees shall be set.
(b) The recount of the ballots in the remaining contested precincts shall not commence until the Division concerned shall have made a determination on the merit of the protest based on the results of the recount of the votes on the ballots from the pilot protested precincts and the review of other documentary exhibits which the protestant may submit. The documentary exhibits may be submitted by the protestant within a non-extendible period of ten (10) days from the completion of the recount of the pilot protested precincts.
Based on the above determination, the Division may dismiss the protest, without further proceedings, if no reasonable recovery could be established from the pilot protested precincts. Otherwise, the recount of the ballots in the remaining protested precincts shall proceed. The recount of the pilot counter-protested precincts, if any, and of the remaining counter-protested precincts if substantial recovery is likewise established by the counter protestant, shall then follow. For this purpose, there is substantial recovery when the protestant or counter protestant is able to recover at least 20% of the overall vote lead of the protestee or counter protestee.
However, the above-mentioned procedure shall not be applicable in case the protestant avails the option of reading/appreciation of the rejected ballots only pertaining to the entire protested or counter-protested precincts under Section 4(e) of Rule 13. (COMELEC Resolution 9720, June 20, 2013.)
9 RULE 76. Pilot Precincts,· Initial Determination. - The revision of the ballots or the correction of manifest errors and reception of evidence shall begin with pilot precincts. If after the appreciation of ballots or election documents and/or reception of evidence in the pilot precincts, the Tribunal determines that the officially proclaimed results of the contested election will not be affected, the Tribunal shall dismiss the protest, counter or cross protest without further proceedings. (2013 RULES OF THE SENATE ELECTORAL TRIBUNAL, February 7, 2013.)
10 RULE 37. Post-Revision Determination of the Merit or Legitimacy of Protest Prior to Revision of Counter-Protest; Pilot Precincts; Initial Revision. - Any provision of these Rules to the contrary notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, the protestant, in case the protest involves more than 50% of the total number of precincts in the district, shall be required to state and designate in writing within a fixed period at most, twenty-five (25%) percent of the total number of precincts involved in the protest which said party deems as best exemplifying or demonstrating the electoral irregularities or fraud pleaded by him; and the revision of the ballots or the examination, verification or re-tabulation of election returns and/or reception of evidence shall begin with such pilot precincts designated. Otherwise, the revision of ballots or the examination, verification or re-tabulation of election returns and/or reception of evidence shall begin with all the protested precincts. The revision of ballots or the examination, verification or re-tabulation of election returns in the counter-protested precincts shall not be commenced until the Tribunal shall have determined through appreciation of ballots or election documents and/or reception of evidence, which reception shall not exceed ten (10) days, the merit or legitimacy of the protest, relative to the pilot protested precincts. Based on the results of such post revision determination, the Tribunal may dismiss the protest without further proceedings, if and when no reasonable recovery was established from the pilot protested precincts, or proceed with the revision of the ballots or the examination, verification or re-tabulation of election returns in the remaining contested precincts. (2011 RULES OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, February 10, 2011.)
The Lawphil Project - Arellano Law Foundation
