A look at the tribunal ruling dismissing Marcos' poll protest vs Robredo

MANILA, Philippines — Former Sen. Ferdinand “Bongbong” Marcos failed to specify allegations that support his claim of electoral fraud in his electoral protest against the Vice President Leni Robredo, the Supreme Court, sitting as Presidential Electoral Tribunal, said.

But even if the tribunal proceeds with the annulment of elections in three Mindanao provinces—identified as third cause of action in his protest—Robredo would still have won, the PET said.

Two months after the historic voting, the SC on Monday released the full copy of the ruling on Marcos’ poll protest against Robredo in the 2016 national elections.

The PET, in a ruling penned by Associate Justice Marvic Leonen, stated that Marcos "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."

It also pointed out that Marcos was given opportunities to defend his arguments but he still failed to "substantiate his allegations of massive anomalies and irregularities in [Robredo’s favor].”

“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,” the PET continued.

The tribunal was unanimous in junking Marcos' protest case. The recently released ruling shows that the seven justices who concurred with the main ruling are Chief Justice Alexander Gesmundo, Senior Associate Justice Estela Perlas-Bernabe, Associate Justices Alfredo Benjamin Caguioa, Ramon Paul Hernando, Rosmari Carandang and Amy Lazaro-Javier.

Eight other justices meanwhile concurred only with the result. They are then-Chief Justice Diosdado Peralta, Associate Justices Henri Jean Paul Inting, Rodil Zalameda, Mario Lopez, Edgardo delos Santos, Samuel Gaerlan, Ricardo Rosario and Jhosep Lopez.

No substantial recovery in pilot provinces

The tribunal had clearly stated that Marcos’ third cause of action failed, putting to rest their party’s claim that their case is still on as the PET only rejected their second cause of action, concerning recount in Camarines Sur, Iloilo and Negros Oriental—their three pilot provinces.

Marcos had argued that their third cause of action, which alleges terrorism, fraud and harassment of voters in Lanao Del Sur, Maguindao and Basilan, is distinct from their second cause of action.

RELATED: Marcos camp believes poll protest still on despite SC junking it

The recount started on April 1, 2018. After the recount in the three pilot provinces, Robredo’s lead widened by another 15,093 votes, putting her total number of votes to 14,436,337 against Marcos with 14,157,771 votes.

The PET stressed that in election protests, a mandatory ceiling of three pilot provinces, expected to cover all causes of action in the protest, is followed. To allow a different set of pilot provinces for a separate cause of action, “would be to contravene the mandatory ceiling of ‘not more than three’ pilot provinces.”

It added that with failure to make out his case in the three pilot provinces, Marcos “cannot now insist on the annulment of election results in Lanao del Sur, Maguindanao, and Basilan.”

“The Rules explicitly direct the forthwith dismissal of his Protest ‘without further consideration of other provinces mentioned in the protest.’ A resort to his third cause of action can no longer be had,” it added.

RELATED: What is PET Rule 65 and why are Robredo's lawyers bringing it up?

Marcos' bare allegations

In arguing that his third cause of action calling the tribunal to annul elections in three Mindanao provinces, Marcos cited the 2016 case of Abayon vs House of Representatives. He claimed that acting on a petition for certioriari, the Supreme Court treated the annulment of elections as separate from the revision of ballots.

But the PET said Marcos is incorrect in invoking the Abayon case to argue that his third cause of action survives despite unfavorable resolution in his second cause of action.

It explained the high court had not hinged on a separate cause of action after determining the results of ballot re-appreciation. Instead, the case was anchored on allegations of terrorism. “Abayon set no binding precedent on whether a separate cause of action may be entertained after revision and appreciation of ballots in pilot provinces,” it added.

Still, the tribunal proceeded to scrutinize Marcos’ allegations, but “even then, we find that he failed to show prima facie (on its face) evidence of his claims that ‘terrorism, intimidation and harassment of voters, pre-shading of ballots and substitution of voters’ attended the elections in Lanao del Sur, Maguindanao, and Basilan.”

The PET stressed that annulment of elections requires the greatest care and can only be done in “extreme cases of fraud” and under circumstances where there is the fullest degree of disregard to the law.

Marcos’ allegations were however bare and lacked critical information on how, where and when the alleged irregularities allegedly transpired, it said. He also did not mention the acts affected the towns or which precincts did the irregularities transpired.

Annulment of elections, Abayon case

Even if, theoretically, the tribunal annuls election in the three Mindanao provinces, Robredo would maintain her lead over Marcos, the PET said.

“There is prima facie (on its face) showing that protestee would still maintain her lead even if we proceed with the third cause of action,” it said.

It noted after the revision of ballots in the three pilot provinces, Robredo obtained 14,436,337 votes while Marcos had 14,157,581 votes. Even if votes from the contested three Mindanao provinces were deducted, Robredo would still have 14,027,320 votes while Marcos would have 14,012,190. “Protestee maintains her lead 15,130,” it added.

Reiterating that a plea to look into annulment of elections, the tribunal noted that Abayon set requisites that Marcos also failed to meet. These are that illegality of ballots must affect more than 50% of the total precincts of the municipality or province concerned; that illegal ballots existed or were even used; and that Robredo is responsible for such unlawful acts.

“All told, the third cause of action fails, and is likewise dismissed,” it added.

Separate opinions, new rules

Among the seven justices who concurred only with the result of the ruling, former Chief Justice Peralta and Associate Justices Mario Lopez and Gaerlan wrote separate opinions. Associate Justices Inting, Delos Santos, Rosario and Jhosep Lopez joined Lopez’s opinion, while Zalameda joined Gaerlan.

Peralta, whose dissenting opinion in the Abayon case in the House of Representatives Electoral Tribual was quoted extensively in the SC ruling, pointed out that the current PET Rules show that “it is not equipped to address the extraordinary demands of election contests seeking the annulment of election results.”

He added that Rule 65, which states that dismissal for protest is proper if protestant fails to make out his case in three pilot provinces, cannot be used to justify the dismissal of a plea for annulment of results.

Gaerlan in his separate opinion also said that the annulment of elections is distinct. He pointed out that election protests entail revision of ballots while annulment of elections entails investigation into allegations of fraud, terrorism, violence or expert technical examination of the electoral system.

“These are separate and distinct methods of investigation which require different rules; and are properly and optimally addressable through an exercise of this tribunal’s rule-making power under the Constitution and Rule 74 of the 2010 PET Rules,” Gaerlan said.

Justice Lopez meanwhile proposed a new formula to determine the reasonable recovery based on protection of protested cluster precincts in pilot provinces and a total number of protested clustered precincts.

But Lopez said that following his proposal, reasonable recovery is still not met and Marcos “failed to prove that electoral fraud and irregularities will alter the election results on who won.”

Associate Justice Caguioa, who was the member-in-charge in the case before he was outvoted in 2019, maintained his position that the case should be dismissed under Rule 65 as Marcos failed to make out his case.

Concurring fully with Leonen’s ruling, Caguioa cited his Dissenting Opinion in the October 2019 resolution of the court and said Marcos “has only himself to blame for his failure to surmount the litmus test provided under Rule 65 of the PET Rules.”

Delay in disposition

The tribunal also touched on allegations that Leonen, ponente of the case, caused undue delay in the disposition of the case. This was an allegation contained in Marcos’ motion for inhibition against Leonen and in Solicitor General Jose Calida’s pleading asking the same as Marcos.

The PET said following its 2010 rules, there is no rule requiring an election protest to be decided within a particular timeframe, whether 20 months or 12 months after its filing.

Again stressing that an election protest is no ordinary petition, the tribunal pointed out that it took pains to give both parties opportunities to argue for their case, such as when Marcos and Robredo were asked to comment after the release of the report on the second cause of action.

The Commission on Elections and the Office of the Solicitor General were also asked to weigh in on factual and constitutional issues raised by parties.

Marcos’ legal team may still contest the ruling and file a motion for reconsideration, although he would arguing against a unanimous court that junked his case.

READ: Chief Justice Peralta says Marcos can appeal poll protest dismissal

Philstar.com reached out to his spokesperson, lawyer Vic Rodriguez, on whether they filed a motion for reconsideration but he has yet to reply.

The PET, in its historic ruling, had said: “It cannot be said that inordinate delay attended the resolution of this Protest. This is the only case not mooted by events, and the only one that reached disposition.”

“Suffrage is at the heart of every democracy. Election results must not be tainted with unnecessary doubt by losing candidates who cannot accept defeat,” it added.

Read full copy of decision:

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