[ PET Case No. 005, October 15, 2019 ]
FERDINAND "BONGBONG" R. MARCOS, JR., PROTESTANT, VS. MARIA LEONOR "LENI DAANG MATUWID" G. ROBREDO, PROTESTEE.
DISSENTING OPINION
CARPIO, J.:
For failure of protestant to make out his case, no basis exists to continue with the proceedings in this election contest.
In the present election contest, protestant designated, and the Tribunal approved, Camarines Sur, Iloilo, and Negros Oriental as protestant's pilot provinces in accordance with Rule 65 of the 2010 Rules of the Presidential Electoral Tribunal (2010 PET Rules) which provides:
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. (Boldfacing and italicization supplied)
The revision of the ballots in these pilot provinces had the following objectives: verify the actual physical count of the ballots; recount the votes of the parties; record the parties' objections and claims thereon; and mark the ballots objected to and/or claimed by the parties in preparation for their examination by the Tribunal and for the reception of the parties' evidence.
After the revision, the revised ballots were then subjected to appreciation wherein the Tribunal verified the physical count and ruled on the objections and claims of the parties.
The final tally after the revision and the appreciation of the votes in the pilot provinces resulted in a net increase of votes by 15,093 in favor of the protestee.
Since the revision results indicate no substantial recovery on the part of protestant, and thus protestant "will most probably fail to make out his case," the dismissal of the election protest, and thus, the discontinuance of any further proceedings, such as the revision of the remaining contested provinces, is proper pursuant to Rule 65 ofthe 2010 PET Rules.
The Number of Pilot Provinces Must Be "Not More Than Three"
Rule 65 expressly states that "[t]he 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."
As a general rule, the use of the word "may" in a statute, or in this case Rules of Procedure, denotes that it is directory in nature. The word "may" is generally permissive only and operates to confer discretion.'
The word "may" in Rule 65 refers to the discretion of the Tribunal to dismiss or not the protest, and if the Tribunal does not dismiss the protest, to require the protestant to designate "not more than three" pilot provinces, a mandatory ceiling. The word "may" recognizes that the Tribunal may summarily dismiss the protest, in which event there will be no reason to require the designation of pilot provinces. But if the Tribunal does not dismiss the protest, there will be a need to designate "not more than three" pilot provinces. The word "may" has never been interpreted to pertain to the number of pilot provinces, which must be "not more than three," a language which is a clear mandatory command that the number of pilot provinces shall not exceed three.
In the case of pilot precincts designated in election contests before the House of Representatives Electoral Tribunal (HRET) and Senate Electoral Tribunal (SET), it has been consistently understood that the pilot precincts shall be not more than or at most 25% of the total number of precincts involved in the protest in accordance with the Rules of Procedure of these electoral tribunals. Rule 40 of the HRET Rules of Procedure provides:
RULE 40. Post-Revision Determination of the Merit or Legitimacy of Protest Prior to Revision of Counter-Protest; Pilot Precincts; Initial Revision and/or Technical Examination. 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 and the protestee shall be required to state and designate in the preliminary conference brief, at most twenty-five (25%) percent of the total number of precincts involved in the protest or counter-protest, as the case may be, which said parties deem as best exemplifying or demonstrating the electoral irregularities or fraud pleaded by them.
The revision of the ballots or the examination, verification or re-tabulation of election returns and the reception of evidence shall begin only with the designated pilot protested precincts.
The revision of ballots or the examination, verification or re-tabulation of election returns and the reception of evidence in the remaining seventy-five (75%) protested precincts and twenty-five percent (25%) counter-protested precincts shall not commence until the Tribunal shall have determined through appreciation of ballots or election documents and/or reception of evidence, within a period not exceeding ten (10) successive working days, the merit or legitimacy of the protest, relative to the designated 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 may proceed with the revision of the ballots or the examination, verification or re-tabulation of election returns in the remaining contested precincts.
The foregoing shall likewise apply to the twenty-five percent (25%) of designated pilot counter-protested precincts.
x x x x
Similarly, the 2013 Rules of the Senate Electoral Tribunal provide that "[i]n an election protest, the following shall also be considered: x x x [t]he list of pilot precincts consisting of not more than twenty-five percent (25%) of the total number of contested precincts, which the party deems as best exemplifying or demonstrating the electoral fraud or anomaly pleaded; X X X."2
Clearly, the maximum number of the pilot provinces or precincts, as well as the condition that the pilot provinces or precincts should be those that best exemplify or demonstrate the fraud or irregularities pleaded by protestant, is found in all the rules of the electoral tribunals in our jurisdiction. Since the pilot provinces or precincts best exemplify the fraud or irregularities alleged in the protest, these must necessarily cover all causes of action grounded on fraud or irregularities and thus requiring revision and recount of ballots.
There is nothing in the Rules of the PET, or in the SET and HRET, that pilot provinces or precincts may be designated for each cause of action. This is precisely because the number of pilot provinces refers to the entire protest, not to one or two or each cause of action. There is simply no rule or law separating the revision or recount of ballots on the ground of acts of terrorism.
To repeat, upon filing of the election protest, the Tribunal may dismiss the protest summarily if it suffers from any of the defects enumerated in Section 213 of the PET Rules. Otherwise, the Tribunal shall require the protestee to file an answer to the protest. After the filing of the last pleading, the Tribunal shall order a preliminary conference. At least five days before the preliminary conference, the parties are required to file their respective preliminary conference briefs, which must contain the list of "not more than three" provinces which the parties may designate pursuant to Rule 65.
It is clear from the Rules that the Tribunal may or may not dismiss the protest summarily. If the protest suffers from any of the defects enumerated in Section 21 of the PET Rules, the Tribunal may dismiss the protest. But if the protest does not suffer from any such defects, the Tribunal will not dismiss the protest and the election contest will proceed with the Tribunal requiring the protestee to file an answer. This is the import of the word "may" in Rule 65. The word "may" in Rule 65, after the word "Tribunal" and before the word "require," refers obviously to the Tribunal's discretion whether or not to dismiss the protest depending on whether or not the protest suffers from any of the defects enumerated in Section 21 of the PET Rules. If it suffers none of such defects, the designation of "not more than three" pilot provinces becomes mandatory. The word "may" does not refer to the number of the pilot provinces which in no uncertain terms is limited to a maximum of three pilot provinces best exemplifying the frauds or irregularities protestant alleged in his protest. In other words, while the dismissal of the protest is discretionary on the part of the Tribunal, as the use of the word "may" clearly signifies, the number of pilot provinces, which should be "not more than three," is mandatory if the protest is allowed to proceed.
Moreover, should the pilot provinces refer to each cause of action, then the maximum number of pilot provinces will definitely exceed three. This interpretation effectively defeats and contravenes the express language of the Rules setting a maximum of "not more than three" pilot provinces. This interpretation will lead to absurdity. If protestant has at least five causes of action, nothing will prevent him from designating at the most 15 pilot provinces. Further, the election contest process starting from the retrieval,collection, revision and appreciation of ballots, pertaining to the first batch of pilot provinces, will be repeated insofar as the additional pilot provinces are concerned. Such construction will not only result to unreasonable delay in the resolution of the election contest, but will also make a mockery of the entire election contest process.
Further, to allow protestant to designate more than three pilot provinces, as he now demands, is to change the Rules in the middle of the proceedings to accommodate him.
A change in the number of pilot provinces cannot also be justified just because the Tribunal, in the present case, has formally changed its Rules to admit ballots with less than 50% shading as valid votes. The amendment of the Rules on shading of ballots has no material effect whatsoever on the validity of the ballots in the appreciation of the ballots. The amendment was simply a formality to conform to the rule that the COMELEC adopted and actually implemented in the 2016 elections.
Rule 43(1) of the 2010 PET Rules reads:
In looking at the shades or marks used to register votes, the [Revision Committee] shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been made by the voter and shall be considered as such unless reasons exist that will justify their rejection. However, marks or shades which are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination.
In a Resolution dated 18 September 2018, the Tribunal "directed its [Head Revisors] to refer to the Election Returns (ERs) used during the 2016 National and Local Elections to verify the total number of votes as read and counted by the VCMs and accordingly amended, effective immediately, Rule 62 of the Revisor's Guide, "4 thus:
RULE 62. Votes of the Parties. - The segregation and classification of ballots shall be done by referring to the Election returns (ER) generated by the machine used in the elections. The Head revisor shall count the total number of ballots for the Protestant, Protestee, Other Candidates, and with Stray Votes record said matter on the appropriate spaces of the Revision Report.
In examining the shades or marks used to register the votes, the Head revisor shall bear in mind that the will of the voters reflected as votes in the ballots shall, as much as possible, be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been made by the voter and shall be considered as such unless reasons exist that will justify their rejection. Any issue on the segregation and classification of ballots by the Head Revisor shall be resolved by the assigned Revision Supervisor, based on the guidelines set by the Tribunal. Any objection to the ruling of the Revision Supervisor shall not suspend the revision of a particular ballot box. The ballot in question may be claimed or objected to, as the case may be, by the revisor of the party concerned.
The Tribunal noted that the objective of the revision process, which is simply to recount the votes of the parties by mimicking (or verifying or confirming) how the vote counting machines read and counted the votes during the elections, can be achieved by referring to the ERs generated by the vote counting machines used in the 2016 elections.5 The Tribunal held that "in using the Election Returns and not merely adopting a specific shading threshold, the Tribunal's revision procedure will be more flexible and adaptive to calibrations of the voting or counting machines in the future. " 6
Reference to the ERs, as well as admitting ballots with less than 50% or at least 25% shading, during the revision process does not constitute a change in the Rules of Procedure of the Tribunal which infringes on the rights of any of the parties. In fact, admitting ballots with at least 25% shading is pursuant to COMELEC Resolution No. 16-0600 dated 6 September 2016. In its Comment, the COMELEC stated that "it calibrated the VCMs for the 2016 National and Local Elections to read marks that cover at least about 25% (when seen by human eyes) of the oval for each candidate as valid votes. All election results were based on this threshold."7
Moreover, during the appreciation process, which takes place after the revision process, the ballots with less than 25% shading or even only a dot or line appearing in the oval as long as the voter's manner of voting is consistent are admitted as valid votes for either party pursuant to the intent rule. This has been the universal rule and practice in the appreciation of ballots in the present case, and in all other previous cases, whether in the COMELEC, SET or HRET. Hence, the amount of shading, whether 100% or 10% as long as the manner of voting is consistent, is immaterial in determining the intent of the voter. It is settled that the cardinal objective in ballot appreciation is to discover and give effect to, rather than frustrate, the intention of the voter.8 To rule otherwise, that is to reject ballots with less than 25% shading pursuant to the 50% threshold as stated in the PET Rules, will necessarily result to disenfranchisement of the voters.
Therefore, in referring to the ERs and admitting ballots with at least 25% shading, the Tribunal did not introduce a new procedure or change any of its Rules in the middle of the proceedings that prejudiced the rights of any party. The Tribunal merely followed an existing COMELEC rule, which was actually implemented during the 2016 elections. More importantly, because of the intent rule, even a dot or a single line in the oval, constituting less than 10 percent shading, will be counted in the appreciation process as a valid vote as long as the voter's manner of voting is consistent.
Examination of Ballots is Indispensable in
Annulment of Election Results
In Abayon v. House of Representatives Electoral Tribunal.9 which involved the jurisdiction of the House of Representatives Electoral Tribunal (HRET) to annul the elections, the Court reversed and set aside the ruling of the HRET in annulling the elections in the contested precincts involved in the case and disregarding the respective number of votes received by Abayon and Daza from the precincts. The Court held that there is no clear and convincing evidence to warrant the nullification of the elections. In so ruling, the Court cited the Dissenting Opinion of Justice Diosdado M. Peralta in this HRET case, which stated that "[w]hen a person elected obtained a considerable plurality of votes over his adversary, and the evidence offered to rebut such a result is neither solid nor decisive, it would be imprudent to quash the election, as that would be to oppose without reason the popular will solemnly expressed in suffrage."10
In the same Dissenting Opinion of Justice Peralta in Abayon, he correctly stated that the best and most conclusive evidence in determining the legality of the ballots are the ballots themselves, thus:
x x x. How can the Tribunal accurately determine which among the contested ballots ought to be invalidated on the ground of terrorism? Certainly, this Tribunal cannot merely speculate and assume which contested ballots will be nullified due to terrorism as this would result to grave consequences -the disenfranchisement of the voters.
Indeed, such uncertainty cannot achieve the purpose of an election protest. It bears stressing that "the purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. In an election contest where the correctness of the number of votes is involved, the best and most conclusive evidence are the ballots themselves ... The best way, therefore, to test the truthfulness of petitioner's claim is to open the ballot boxes in the protested precincts followed by the examination, revision, recounting and re-appreciation of the official ballots therein contained in accordance with law and pertinent rules on the matter . . . "11
It is well-settled that there are two (2) indispensable requisites that must concur in order to justify the nullification of the election:
(1) The illegality of the ballots must affect more than fifty percent (50%) of the votes cast on the specific precinct or precincts sought to be annulled, or in case of the entire municipality, more than fifty percent (50%) of its total precincts and the votes cast therein; and
(2) It is impossible to distinguish with reasonable certainty between the lawful and unlawful ballots. x x x.12 (Emphasis supplied)
In resolving protestant's claim of terrorism in three provinces, namely, Lanao del Sur, Basilan and Maguindanao, which would possibly warrant the nullification of the elections therein, these two requisites must be clearly shown. In proving terrorism as a ground to nullify the elections, protestant must therefore present the ballots themselves precisely because they are the most conclusive evidence of their legality or illegality. In other words, protestant's third cause of action, which is the annulment of the election results on the ground of terrorism, similarly calls for the revision and recount of the ballots. This means there will be a revision and recount of the ballots to determine if there was illegality of the ballots affecting more than 50% of total votes cast. This is obvious because the Tribunal cannot determine whether the illegality of the ballots affected more than 50% of the votes cast in the specific precinct/s sought to be annulled and the Tribunal likewise cannot distinguish between the lawful and unlawful ballots, without examining the ballots themselves.
Since protestant's two causes of action are both anchored on the actual revision and recount of the votes cast as appearing in the ballots, protestant should have included in his pilot provinces any of the provinces which he deems best exemplified or demonstrated the acts of terrorism he alleged in his protest. The provinces subject of an annulment case should form part of the pilot provinces because all these provinces will be subjected to revision and recount of ballots. Not doing so amounts to a waiver on the part of the protestant to have the ballots from the excluded contested provinces revised and recounted.
To repeat, there is nothing in the Rules that pilot provinces may be designated for each cause of action precisely because the number of pilot provinces, which must be "not more than three," refers to the entire protest.
Notably, protestant himself is very much aware of this established rule. In his Consolidated Reply with Urgent Motion to Resolve Protestant's Omnibus Motion, dated 22 March 2019, he claimed that "his Second Cause of Action is for judicial revision and recount of ballots while his Third Cause of Action is for the annulment of election results in the provinces of Lanao del Sur, Maguindanao and Basilan. Thus, these provinces were excluded from the coverage of the pilot protested provinces mandated by Rule 65 of the 2010 PET Rules."13 Protestant himself expressly admitted that the ARMM provinces are not part of the pilot provinces. In other words, protestant knowingly excluded these ARMM provinces from his chosen pilot provinces, which shall serve as "test cases" by which the Tribunal will determine whether or not to proceed with the revision of ballots of the remaining contested provinces.14 Insofar as protestant is concerned, annulment of election results will not require revision of ballots, and thus he intended to merely present "testimonial and documentary evidence that would prove that voters in Lanao del Sur, Maguindanao and Basilan were deprived of their right to vote on election day."15
However, protestant's theory is wrong. To annul the election results, an examination of the contested ballots is indispensable. As stated, two requisites must concur before a nullification of election is declared:
(1) The illegality of the ballots must affect more than fifty percent (50%) of the votes cast on the specific precinct or precincts sought to be annulled, or in case of the entire municipality, more than fifty percent (50%) of its total precincts and the votes cast therein; and
(2) It is impossible to distinguish with reasonable certainty between the lawful and unlawful ballots. x x x.16 (Emphasis supplied )
In an election contest where what is involved is the correctness of the number of votes of each candidate, the best and most conclusive evidence are the ballots themselves.17 The Tribunal cannot determine the legality (or the illegality) of the ballots without examining the ballots themselves. Therefore, contrary to protestant's theory, protestant's third cause of action, which seeks the annulment of election results in Basilan, Lanao del Sur and Maguindanao, undoubtedly requires the revision and recount of ballots. If any or all of these provinces best demonstrate the fraud or irregularities, specifically terrorism, alleged in his petition, protestant should have included the same in his pilot provinces. However, protestant did not do so.
To exclude from the pilot provinces those provinces subject to an annulment case will allow the protestant to exceed the maximum number of pilot provinces prescribed in the Rules. Thus, a protestant will claim terrorism for provinces outside his three pilot provinces. If he makes a substantial recovery from the three pilot provinces, then he will simply manifest that the second phase of the protest can proceed since he has made a substantial recovery. If he fails to make a substantial recovery from the three pilot provinces, then he will demand to revise and recount the ballots from the provinces where he claims terrorism, similar to what protestant Marcos now demands. The protestant will be playing with the Rules of the Tribunal and in the process will make a mockery of the election contest process. This the Tribunal must definitely not allow.
Rule 65 of the 2010 PET Rules expressly requires protestant to name "not more than three" provinces that best exemplify the frauds and irregularities alleged in the protest. The Tribunal will be violating its own Rules if it allows a revision and recount of ballots in other provinces in the Autonomous Region in Muslim Mindanao (ARMM), beyond the maximum three provinces chosen by protestant.
Finally, for the Tribunal to allow a revision and recount of the protestant's contested precincts in three ARMM provinces, exceeding the maximum three pilot provinces mandatorily prescribed in the 2010 PET Rules, is to change the rules of the PET in the middle of the proceedings just to accommodate protestant after he has failed to show a substantial recovery in the three pilot provinces he himself chose. The last thing that this Tribunal should do is to change its rules in midstream to accommodate a party who has failed to comply with what Rule 65 of the 2010 PET Rules expressly requires.
I therefore vote to DISMISS the protest and counter-protest in PET Case No. 005.
Footnotes
1 Agpalo, Ruben E., Statutory Construction, 1990 Second Edition, p. 239, citing Bersabel v. Salvador, G.R. No. 35910, 21 July 1978, 84 SCRA 176 (1978); Dizon v. Encarnacion, 119 Phil. 20 (1983); Cabaluna v. Ventura, 47 Phil. 165 (1924); Castillo v. Sian, 105 Phil. 622 (1959).
2 Rule 39(e), 2013 Rules of the Senate Electoral Tribunal.
3 RULE 21. Summary dismissal of election contest.
An election protest or petition for quo warranto may be summarily dismissed by the Tribunal without requiring the protestee or respondent to answer if, inter alia:
(a) the protest or petition is insufficient in form and substance;
(b) the protest or petition is filed beyond the periods provided in Rules 15 and 16;
(c) the filing fee is not paid within the periods provided for in these Rules;
(d) the cash deposit or the first Two Hundred Thousand Pesos (P200,000.00) is not paid within ten days after the filing of the protest; and
(e) the protest or petition or copies and their annexes filed with the Tribunal are not clearly legible.
4 Resolution, p. 35.
5 I d. at 36.
6 Id. at 37.
7 Id. at 35.
8 Locsin v. House of Representatives Electoral Tribunal, 706 Phil. 590, 604 (2013), citing Torres v. House of Representatives Electoral Tribunal, 404 Phil. 125, 142 (2001).
9 785 Phil. 683 (2016).
10 Id. at 705
11 http://hret.gov.ph/file-manager/2013-2016_023_dissenting-com.pdf(visited 14 October 2019).
12 Abayon v. House of Representatives Electoral Tribunal, supra note 9, at 705.
13 Resolution, p. 40.
14 Id. at 24.
15 Id. at 19.
16 Abayon v. House of Representatives Electoral Tribunal, supra note 9, at 705.
17 Abubakar v. House of Representatives Electoral Tribunal, 546 Phil. 585, 598 (2007), citing Lerias v. House of Representatives Electoral Tribunal, G.R. No. 97105, 15 October 1991, 202 SCRA 808.
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