Exercise in courage

THE ELECTORAL protest filed by Mar Roxas against Vice President Jejomar Binay is an exercise in courage. To prosecute the suit requires herculean effort, enormous time and humongous expense that could reach P50 million without any assurance of victory. In fact, no one has won an electoral protest for any national position (president, vice president and senator) since the 1987 Constitution took effect.

Past electoral suits. Miriam Defensor-Santiago protested the election of President Fidel V. Ramos in 1992 but due to her election as senator in 1995, the Supreme Court en banc – acting as the Presidential Electoral Tribunal (PET) – dismissed her protest, reasoning that by choosing to be a senator she had abandoned her claim to the presidency. Similarly, Loren Legarda’s protest against Vice President Noli de Castro in 2004 was thrown out after Legarda won a Senate seat in 2007.

Fernando Poe Jr.’s protest against President Gloria Macapagal-Arroyo in 2004 was dismissed for being academic due to Poe’s untimely death. Aquilino (Nene) Pimentel Jr.’s challenge against Sen. Juan Ponce Enrile in 1995 was also dismissed due to Pimentel’s senatorial victory in 1998. The only pending protest involving a national office (other than Roxas’) is that of Aquilino “Koko” Pimentel III filed in 2007 against Senator Juan Miguel Zubiri.

Election protests are time-consuming because they involve the visual examination of the ballots. Electoral tribunals create several teams of “revisors” to pass upon the validity and recount of each contested ballot. Forensic and other experts are employed. The litigants pay for the fees and other expenses of these revisors, experts and, of course, the lawyers.

Essentials of the Roxas protest. Over 100 pages long, the protest involves about three million ballots. Of these, Roxas claims that 2.6 million have not been counted properly because the PCOS machines classified them as “null/misread votes,” meaning that the voter (1) may have voted for other positions but abstained from voting for any VP candidate; or (2) “undershaded” the ovals for VP; or (3) voted for more than one candidate for VP; or (4) the machine omitted counting, for some unknown reason, the vote for VP.

Given that “no human eye saw how the votes were appreciated by the PCOS machine, or whether they were appreciated at all,” Roxas argues that the ballot boxes should be opened and the ballots minutely examined and manually counted by revisors appointed by the PET. He explains that this is the only way to prevent the wholesale disenfranchisement of 2.6 million electors. If these ballots are correctly counted, Roxas claims he can overtake Binay’s lead of 727,084.

Revising Roxas’ 2.6 million “null/misread” ballots will probably cost five times more than revising Koko Pimentel’s 500,000 protested ballots. Not only that, Binay will probably file a counter protest involving several million votes too. Counter-protests are normal parts of due process. So now, we see why protests are tedious and expensive.

A first in an automated election, Roxas’ protest spawns novel questions, which will mean more expenses and delays. For example, Comelec Chairman Jose A. R. Melo told media that automated ballots cannot be manually examined and that only the same PCOS machines which produced the original results will recount them. However, Roxas is precisely contesting the accuracy of the machine count. The best way to do that is to manually check the ballots. Verily, the Rules of Procedure for election contests using the PCOS, decreed by the Supreme Court on April 27, 2010, expressly recognize manual revision of ballots.

Answers to lingering questions. Other than the null/misread ballots, Roxas blames Comelec and Smartmatic “for disabling or entirely removing crucial (legally mandated) safeguards that should have prevented the occurrence of system-wide electoral frauds in the vice presidential contest.” Some of these disabled safeguards and alleged frauds are:

The Source Code was not subjected to “independent review” as mandated by law and required by the Supreme Court decision upholding the Comelec award of the automated election contract to Smartmatic. Moreover, the internal review contracted by Comelec to SysTest Labs found the Source Code to be “inadequate and not professionally written.”

Non-implementation of the “system of verification for voters to find out whether or not the machines properly registered their choices.”

“Improper printing of official ballots”

Non-inclusion of security safeguards in the ballots, like the hidden ultraviolet security mark.

The compact flash cards that were distributed one week before election “were reconfigured not to read votes for protestant” Roxas.
“The legally required audit trail was compromised” as shown by the wrong date and time printed in many machine-generated documents.

The mandated random manual audit “was improperly and irregularly conducted.”

I do not necessarily agree with the allegations of the protest. But I welcome it if only to quiet down many misgivings about our automated election system, to cure its many flaws and to prevent their repetition in the future.

I am writing not to divine whether Roxas will win or lose. Rather, my aim is to encourage him (and VP Binay, too, in his putative counter protest) to secure, within the limited time available, definitive answers to lingering doubts about the Comelec-Smartmatic system before we undertake another PCOS-automated election.