Bongbong Marcos insists on Mindanao fraud as he appeals lost VP case

Ferdinand "Bongbong" Marcos Jr has filed his motion for reconsideration to the Supreme Court's unanimous dismissal of his electoral protest against Vice President Leni Robredo, insisting that elections in 3 provinces in Mindanao must be annulled because of widespread fraud and terrorism.

Marcos appealed the Supreme Court sitting as the Presidential Electoral Tribunal (PET) to "proceed with the presentation of evidence for the third cause of action," according to his 96-page motion submitted to the Court on Monday, May 10, a copy of which was provided to media on Tuesday, May 11.

The SC refused to fully investigate Marcos' claims of fraud and terrorism in Lanao del Sur, Basilan, and Maguindanao, citing Rule 65 of the PET rules that limits the number of pilot provinces to 3. Having lost the recount in the initial pilot provinces of Camarines Sur, Iloilo, and Negros Oriental, the SC said Marcos cannot pick a second set of pilot provinces as that violates Rule 65.

Besides, the SC said, Marcos was unable to show convincing proof that there was indeed widespread fraud and terrorism in those Mindanao provinces, which used to make up the volatile Autonomous Region in Muslim Mindanao (ARMM).

In his motion, Marcos insisted that annulment of elections is an independent action that shouldn't be affected just because he already lost the recount in his first set of 3 pilot provinces.

Marcos said an election protest is different from annulment of elections, so "Rule 65 is not applicable."

This view is supported by former chief justice Diosdado Peralta and Associate Justices Samuel Gaerlan and Rodil Zalameda. Their separate concurring opinions showed they believe annulment of elections is a distinct remedy, but all acknowledged that there are no clear rules for such. Peralta, Gaerlan, and Zalameda concurred with the result of the majority, which was to dismiss Marcos' case, but they wrote separate opinions to share other views.

Peralta, Gaerlan, and Zalameda would have wanted the Supreme Court to craft new rules, but the ponencia by Associate Justice Marvic Leonen said "changing the rules this late in the game to grant protestant's third cause of action would not be a good precedent as it would tailor the Protest in favor of one party."

In his motion, Marcos pleads for the chance to exhaustively present evidence, and for hearings to be held to prove his claims. He also wants the SC to direct the Commission on Elections (Comelec) to deploy handwriting experts to conduct technical examinations of voters' lists in those areas.

"The existence or non-existence of procedural rules should never be an obstacle in ascertaining who the voters chose to be their leaders. What is important is that the true will of the electorate be heard," said Marcos in his motion.

Robredo's lawyer Romulo Macalintal said: "Mr. Marcos would be the luckiest man in the world if he could reverse the unanimous decision by merely repeating the same issues and arguments already decided by the entire Presidential Electoral Tribunal."

Underdeveloped jurisprudence

Annulment of elections is an exclusive PET power. Such power is so immense that the SC set a rule in a previous case that for annulment to happen, the illegality of votes must cover more than 50% of the valid votes cast.

Annuling an election would void all votes cast in those areas, because the working principle is that if there was terrorism and widespread intimidation, it is impossible to distinguish the good vote from the bad vote, therefore you must void all. This is an action that risks disenfranchising valid voters, so the threshold set was very high.

Applying a formula that follows that threshold, Leonen's ponencia computed that even if they were to annul the votes there, Robredo would still win by 15,130 votes.

Former elections commissioner Luie Guia said jurisprudence on annulment of elections is not very developed, because the SC is yet to make a clear statement on what happens to other positions if an election is annulled in those areas.

"Hindi mo puwedeng sabihin o malabong sabihin o mahirap sabihin na 'yung terrorism that prevented people from voting only affected one position on the same ballot," Guia told Rappler podcast Law of Duterte Land.

(You can't say or it's difficult to say that the terrorism that prevented people from voting only affected one position on the same ballot.)

Saying that the concept of annulment of elections must be further developed, Guia said: "I think the right direction would be to redefine what should be included in the pilot areas."

But Guia agreed that if the SC were to craft new rules pertaining to annulment of elections, it must be done while there is no ongoing case.

"The best time really to produce the rules or amend the rules is when there is no case pending," said Guia.

The filing of certificates of candidacy (COC) is in October, and while Marcos has not yet definitively said he is running in the 2022 elections, there are talks of whether his filing a COC in October would render his appeal moot.

There is no clear answer. Peralta was asked this in February before he retired, but the former chief justice said "that's another question. If he wants to run that's his choice, but whether or not [it will have an effect], that's another thing."

What will definitely moot this case is the new elections for vice president in May 2022. –

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.