P.E.T. Case No. 005 - FERDINAND "BONGBONG" R. MARCOS, JR.

,
protestant, versus MARIA LEONOR "LENI DAANG MATUWID" G.
ROBREDO, protestee.

Promulgated:

x------------------------------------------

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
Dissenting Opinion 2 P.E.T. Case No. 005

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 rev1s10n 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.

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.
 ••
•
Dissenting Opinion 3 P.E.T. Case No. 005

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:

RULES OF THE PRESIDENTIAL ELECTORAL TRIBUNAL, April 18, 1992.

Id.
Dissenting Opinion 4 P.E.T. Case No. 005

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. (R6 Ja) 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 is 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

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.
Dissenting Opinion 5 P.E.T. Case No. 005

Elections (COMELEC), 8 the Senate Electoral Tribunal, 9 and the House of

Representatives Electoral Tribunal. 10

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 I 0, 20 IO 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 (I 0) 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.)
RULE 76. Pilot Precincts,· Initilll Determinlltion. - 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 (I 0) 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 I 0, 2011.)
Dissenting Opinion 6 P.E.T. Case No. 005

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 tum 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
Dissenting Opinion 7 P.E.T. Case No. 005

Examination dated July 10, 2017, Protestant's Extremely Urgent

Manifestation of Grave Concern with Omnibus Motion dated December I 0,
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.

-'F'RTIFIED TRUE COPY

R 0. ARI CH ETA
~ of Court En Banc
Supreme Court