Bongbong has until May 7 to file an MR

Contrary to a misimpression, the decision of the Presidential Electoral Tribunal dismissing for lack of merit the protest of former senator Ferdinand “Bongbong” Marcos against Vice President Leni Robredo is not yet “final and executory.”

Marcos still has 15 days from his receipt of the full decision to move for reconsideration. So if he received it by email on April 22, as did the other party, he has until May 7 to file his motion for reconsideration (MR). Would he? Should he?

If he fails to file an MR by that deadline, the unanimous decision dismissing his protest becomes final and executory after almost five years of maneuvering. The only way to keep his case “alive” is to file an MR.

But if his MR is denied, which many lawyers we’ve asked said is likely, that will be the last nail to seal the coffin of his marathon protest.

How many times does Marcos have to lose his vice presidential bid for him to finally concede or accept that, indeed, he has lost to Robredo who has been functioning fully and officially as vice president since July 2016?

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Per official tally, Marcos lost to Robredo in the 2016 elections. He filed a protest on June 29, 2016, but lost in the PET recount in the three pilot provinces – Camarines Sur, Iloilo and Negros Oriental – that he said “best exemplified” the alleged cheating.

The revision and recount resulted, however, in Robredo’s even increasing her lead from 263,473 to 278,566 votes in the elections where some 44 million voted nationwide.

To save his sinking protest, Marcos sought to wipe out her lead through another cause of action, which was to ask that the results in three Mindanao provinces that he picked be nullified. But the PET denied this ploy and dismissed his protest altogether.

Marcos has lost his case every step of the way. The only option left for him is to file an MR. But will he risk a terminal setback after the uphill fight of four years and 10 months?

The dispositive portion of the PET decision that was announced recently said that the tribunal consisting of the 15 members of the Supreme Court dismisses Marcos’ election protest for lack of merit.

That unanimous verdict should have totally erased any legal obstacles to Robredo’s right to perform the duties and responsibilities of the office of Vice President.

The decision was written by Associate Justice Marvic Leonen. The other 14 PET members signed “We concur,” although eight of them wrote “concur in the result” which means that while they agreed that the protest be dismissed, they held different views on how some issues should be approached.

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We asked election lawyer Romulo Macalintal, lead counsel of Robredo, what that divergence of views meant. He said:

“Like many roads leading to the same destination, the 15 members of the PET may have varying views and opinions on how certain issues should be resolved, but such differences did not in any way affect their unanimous conclusion that the protest should be dismissed for utter lack of merit.

“For instance, Justice Mario Lopez commended Leonen’s ‘exhaustive discussions on every point in the election protest’ and wrote that ‘Indeed, the protestant (Marcos) failed to show that he will probably overcome the overall lead of the protestee in his second cause of action. Following Rule 65 of the PET Rules, further consideration of the remaining protested provinces or clustered precincts may no longer be necessary.’”

Rule 65 authorizes the tribunal to dismiss an election protest if the results of the revision or recount of ballots from the three pilot provinces selected by the protestant failed to show “reasonable recovery” of votes to justify the continuation of the revision or recount of the votes in the remaining protested provinces or clustered precincts.

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Justice Mario Lopez offered his own formula on how to determine if indeed the recount shows “reasonable recovery” for the protestant.

But after applying his formula on the recount of votes from the three pilot provinces chosen by Marcos, Lopez found that “it is clear that reasonable recovery was not met (by Marcos)” and that “he failed to prove that electoral fraud and irregularities will alter the election results on who won.” Accordingly, he said, “I vote to dismiss the election protest following Rule 65.”

Lopez was joined in his opinion by other justices: Henri Juan Paul Inting, Edgardo delos Santos, Ricardo Rosario and Jhosep Lopez.

Justice Samuel H. Gaerlan, who also voted to dismiss the protest, wrote a separate opinion that Marcos’ “protest was properly dismissed for failure to prove substantial recovery in the Pilot Provinces volunteered by (Marcos) in accordance with the clear import of Rule 65 of the 2010 Rules of PET.”

While Gaerlan wrote a different opinion on how the PET should resolve the issue of annulment of election, he said that such opinion was written only “in the hope of guiding future adjudication of this Tribunal on the matter of the annulment of election.”

Gaerlan was joined in his opinion by Justice Rodil Zalameda. So did also Chief Justice Diosdado Peralta, who concurred in the result to dismiss the protest and shared the observation of Gaerlan.

Macalintal observed: “To allow Marcos to present new evidence for annulment of the election in the provinces of Basilan, Maguindanao and Lanao del Sur will violate the mandatory ceiling of ‘not more than three pilot provinces’ as set by Rule 65.

“Thus, as unanimously ruled by the PET, ‘Changing the rules this late in the game to grant (Marcos’) third cause of action would not be a good precedent as it would tailor the protest in favor of one party.’”

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NB: All Postscripts are also archived at ManilaMail.com. Author is on Twitter as @FDPascual. Email: f[email protected]