G.R. No. P.E.T. Case No. 005, February 16, 2021.
FERDINAND “BONGBONG” R. MARCOS, JR., PROTESTANT, VS. MARIA LEONOR “LENI DAANG MATUWID” G. ROBREDO, PROTESTEE.

FACTS

This is a separate opinion in the Presidential Electoral Tribunal (P.E.T.) case filed by protestant Ferdinand “Bongbong” R. Marcos, Jr. against protestee Maria Leonor “Leni Daang Matuwid” G. Robredo, contesting the results of the 2016 vice-presidential election. The protestant alleged massive electoral fraud, anomalies, and irregularities, including misreading of ballots and improper rejection of ballots, in the protested precincts. The Tribunal proceeded under Rule 65 of the 2010 PET Rules, requiring the protestant to designate pilot provinces exemplifying the alleged frauds. After revision and appreciation of ballots from the pilot precincts, the protestee’s lead increased. The main ponencia found the protest insufficient and recommended dismissal.

ISSUE

The primary issue addressed in this separate opinion is whether the election protest should be dismissed under Rule 65 of the 2010 PET Rules for the protestant’s failure to demonstrate a reasonable recovery of votes from the pilot provinces sufficient to overcome the protestee’s overall lead.

RULING

Justice Lopez, in a separate opinion, concurred in the result to dismiss the election protest but differed on certain legal points. The ruling is as follows:
1. On the Specificity of Allegations: The opinion agrees that an election protest must contain specific allegations of fraud and irregularities as required by Rule 17 of the 2010 PET Rules. However, it submits that this requirement should be read in conjunction with Section 255 of the Omnibus Election Code, which authorizes the examination of ballots when allegations in a protest “so warrant.” Citing Dayo v. COMELEC and Miguel v. COMELEC, the opinion argues that mere allegations of fraud relating to the need to examine ballots (like misreading or improper rejection) are sufficient to order the opening of ballot boxes, without requiring a prima facie showing of fraud. The protestant’s allegations in this case, particularly on misreading and improper rejection of ballots, coupled with the protestee’s narrow lead margin (1.83%), warranted the Tribunal’s action to open the ballot boxes and allow the protestant to substantiate his claims. Therefore, the opinion respectfully differs from the ponente’s view that the protest should have been summarily dismissed at the outset for insufficiency in form and substance.
2. On the Application of Rule 65 and the “Reasonable Recovery” Formula: The opinion concurs that the protestant failed to meet the burden under Rule 65. It proposes a five-step formula to determine if “reasonable recovery” is achieved from the pilot provinces:
a. Determine the total number of protested clustered precincts.
b. Determine the number of pilot clustered precincts.
c. Compute the percentage of pilot precincts to total protested precincts.
d. Compute the “reasonable recovery” by multiplying the protestee’s overall lead per proclamation by the percentage of pilot precincts.
e. Compare the protestee’s total lead after revision and appreciation of the pilot precincts with her overall lead per proclamation. If the difference (overall lead minus post-revision lead) is greater than or equal to the “reasonable recovery,” the protest may proceed.
3. Application to the Case: Applying this formula:
– Total protested precincts: 36,465.
– Pilot precincts: 5,415.
– Percentage: 14.85%.
– Protestee’s lead per proclamation: 263,473.
– “Reasonable Recovery” (14.85% of 263,473): 35,726.
– Protestee’s lead after revision and appreciation of pilot precincts: 278,566.
– Difference: 263,473 – 278,566 = -15,093.
Since the resulting difference (-15,093) is less than the required reasonable recovery (35,726), and is negative (indicating the protestee’s lead increased), the protestant failed to show he would probably overcome the protestee’s lead. The pilot provinces, claimed to represent the worst irregularities, did not yield a sufficient recovery.
CONCLUSION: Justice Lopez voted to dismiss the election protest pursuant to Rule 65 of the 2010 PET Rules, as the protestant failed to demonstrate from his chosen pilot provinces a reasonable recovery of votes that would most probably alter the outcome of the election.