Memorandum on the Counter Protest Pilot Precincts (FINAL)

8/9/2019 Memorandum on the Counter Protest Pilot Precincts (FINAL)

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Republic of the PhilippinesSENATE ELECTORAL TRIBUNAL

Quezon City

AQUILINO L. PIMENTEL III,

Protestant/Counter-Protestee,

- versus - SET CASE NO. 001 07

JUAN MIGUEL F. ZUBIRI,

Protestee/Counter-Protestant.

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

PROTESTANT / COUNTER-PROTESTEE PIMENTELSMEMORANDUM

[ON THE PILOT PRECINCTS OF THE COUNTER-PROTEST]

COMES NOW the Protestant/Counter-Protestee Pimentel, by himself, unto

this Honorable Tribunal most respectfully submits his Memorandum on the Pilot

Areas of Protestee/Counter-Protestant Zubiris Counter-Protest, pursuant to SET

Resolution No. 07-100, a copy of which was received on April 26, 2010, to wit:

I. PUTTING THE ZUBIRI COUNTER-PROTEST IN PROPERPERSPECTIVE

This Counter-Protest is Protestee Zubiris Protest, not Protestant Pimentels.

(Henceforth Protestant/Counter-Protestee Pimentel will be referred to herein as simply

Pimentel and Protestee/Counter-Protestant Zubiri as simply Zubiri.)

It is therefore Zubiris obligation to prove his allegations.

Because of the sheer absurd size of Protestee Zubiris Counter-Protest,

bordering on the criminal, imagine spending P70 Million just to stay in office

(computed at P1,000 to be spent per protested precinct), there is a need to put things in

proper perspective.

PIMENTELS MEMORANDUMON THE PILOT PRECINCTS OF THE COUNTER-PROTEST

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In July 2007, Protestant Pimentel filed the election protest subject of these

proceedings (the main protest). Pimentel protested a total of 2,658 precincts. Of

these, 664 were designated as pilot precincts as required under Rule 79 of the

Revised Rules of the Senate Electoral Tribunal (henceforth to be referred to herein as

simply SET).

Zubiri filed his Answer dated 11 August 2007 to the Pimentel Protest, which

Answer included a Counter-Protest. Zubiri counter-protested a total of 70,607 new

precincts. (We have to qualify the number of counter-protested precincts with the

word new because Zubiri also counter-protested the 2,658 precincts covered by the

main protest.) Of these 73,265 total counter-protested precincts (70,607 plus 2,658),

18,316 were designated as pilot precincts as stated in Zubiris Preliminary

Conference Brief.

In short, the pilot precincts alone of the Counter-Protest is almost 7 times as

large as the entire main protest, and 27.5 times larger than the main protests pilotprecincts!

It should be emphasized that from Pimentels 664 pilot precincts in the main

protest, per Pimentels computation he had already posted a net gain of 103,812

votes, for an average Pimentel recovery or net gain of 156.34 votes per pilot

precinct.

From Pimentels total protested precincts of 2,658 precincts, per Pimentels

computation he had already posted a net gain of 264,858 votes, for an average

Pimentel recovery or net gain of 99.64 votes per protested precinct.


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The Coverage of Zubiris Counter-Protest

The following are the areas covered by the Zubiri Counter-Protest, together

with their total number of counter-protested precincts and the number of designated

pilot precincts per Zubiris Preliminary Conference Brief (PCB):

PROVINCE/CITY/MUNICIPALITY

Total No. of Counter ProtestedPrecincts

Total No. ofPilot Precincts

1 Makati City 1,837 8852 Muntinlupa City 1,096 2743 Las Pias City 1,644 4114 Paraaque City 1,219 3055 Quezon City

5,049 1,2636 Caloocan City 2,986 7477 Pasay City 1,313 3288 Pasig City 1,709 4279 San Juan City 316 316

10 Pateros 179 4511 Marikina City 1,016 25412 Mandaluyong City 944 236

13 Manila City 4,903 1,22514 Malabon City 824 20615 Navotas City 613 15316 Laguna 6,187 1,54717 Nueva Ecija 5,387 1,34718 Zamboanga City 1,848 46219 Quezon Province 4,296 1,07420 Cavite 6,691 1,67321 Cagayan 2,556 63922 Ilocos Norte 1,571 393

23 Camarines Norte 1,091 27324 Bogo City, Cebu 196 4925 Palawan 2,223 55626 Bulacan 7,089 1,77227 Batangas 5,824 1,456

Total 70,607 18,316


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II. HE WHO ALLEGES MUST PROVE!

So how did Zubiri justify such a gargantuan counter-protest?

According to Zubiri:

(1) In MAKATI CITY, NAVOTAS CITY, PARAAQUE CITY, PASIG

CITY, MANILA CITY, MARIKINA CITY, MALABON CITY, LAS PIAS

CITY AND PASAY CITY, -

The results in these cities are statistically improbable as shown by

the fact that only one administration candidate made it to the magic 12.

The voters of these progressive cities are noted for being independent

and for political choices which transcends party affiliations. It is

therefore anomalous that no other TU candidates, specifically protestee

Zubiri received votes sufficient to land them to the 12 voters

preference. Moreover, the certificates of canvass contain erasures and

alterations rendering the results unreliable. Given the summary nature

of canvass proceedings, the true and actual number of votes credited to

protestee was not absolutely determined.

(2) In QUEZON CITY, -

The votes credited for protestee in all the precincts of Quezon City

were erroneously computed and tallied. Quezon City is the seat of the

House of Representatives of which protestee is a member. It is

therefore beyond belief that the votes reflected in the election returns

prepared by the Board of Election Inspectors were far below than what

had been projected as votes garnered by protestee. The election returns

prepared by the Board of Election Inspectors contained erasures, thus,


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the correct and true results reflected therein can not truly be determined

in the canvass proceedings.


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(3) In CALOOCAN CITY, -

The results in this City can not be considered as truly reflective of

the will of the electorate. The election returns and the Statement of

Votes were with erasures and alterations that the truthfulness of the

entries specifically with respect to the votes obtained by Zubiri therein

can not be fully and truly ascertained in the canvass proceedings.

(4) In SAN JUAN CITY, -

The entries reflected in the certificate of canvass pertaining to this

city cannot be considered as truly reflective of the senatorial results.

The certificates of canvass contain erasures and alterations specifically

in the senatorial results, not initialed by the Board of Canvassers. The

truthfulness of the votes recorded as results of the canvass, specifically

with respect to protestee Zubiri can not be fully determined through the

canvassing proceeding which is summary in nature.

(5) In the PROVINCE OF BATANGAS (all municipalities), -

The Province of Batangas is a well-known administration

bailiwick. The results as reflected in the certificate of canvass

pertaining to said province are definitely statistically improbable

considering that only two candidates of the administration made it to

the magic 12. The certificates of canvass contain erasures and

alterations specifically in the votes indicated for Zubiri. As a rule,

allegations of fraudulent preparation can be summarily dismissed by

the boards of canvassers if the alleged irregularity is not manifest on

the face of the certificates. Considering that there were erasures and

alterations in the results contained in the certificate of canvass, the

truthfulness of the votes credited for Zubiri reflected therein cannot be

fully ascertained by a mere superficial consideration of its appearance.PIMENTELS MEMORANDUM

ON THE PILOT PRECINCTS OF THE COUNTER-PROTESTPage 6 of 76


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(6) In the PROVINCE OF BULACAN (all municipalities), -

The Province of Bulacan is counted as a province of independent

minded electorate. Their choices transcends political affiliations. The

result therefore showing that there was only one administration

candidate voted to the magic 12 rendered the senatorial results highly

improbable. The fact that the certificate of canvass pertaining to the

province contained erasures and alterations specifically with respect to

the senatorial results, which were not validated by the signature of the

Chairman of the Board of Canvassers, the veracity of the senatorial

results cannot be conclusively determined by a mere look and

consideration of its appearance during the canvass proceedings. The

erasures infected the vote results credited to protestee. The error must

be rectified through a judicial recount.

(7) In the PROVINCE OF ILOCOS NORTE (all municipalities), -

The results reflected in the Certificate of Canvass of this province

is (sic) highly suspicious. The political machinery of Team Unity was

admittedly strong and smooth running in Ilocos Norte. The fact that

only two administration candidates made it to the magic 12 rendered

the result statistically improbable. The erasures and alterations manifest

in the certificate of canvass could have been made to conceal the

shaving of the votes TU candidates, Zubiri included. Considering that

the truthfulness of the results contained in the certificate of canvass

cannot be truly and conclusively determined by a mere consideration of

its appearance and condition, judicial recount of the results must be

resorted to.


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(8) In the PROVINCE OF CAMARINES NORTE (all municipalities), -

The results as reflected in the certificate of canvass pertaining to

said province are definitely statistically improbable considering that

only two candidates of the administration made it to the magic 12. The

certificates of canvass contain erasures and alterations specially in the

votes indicated for Zubiri. As a rule, allegations of fraudulent

preparation can be summarily dismissed by the boards of canvassers if

the alleged irregularity is not manifest on the face of the certificates.

Considering that there were erasures and alterations in the results

contained in the certificate of canvass, the truthfulness of the votes

credited for Zubiri reflected therein cannot be fully ascertained by a

mere superficial consideration of its appearance.

(9) In the PROVINCE OF CAVITE (all municipalities), -

In Cavite province administration candidates specifically in the

provincial level had only token opponents. The result therefore

showing only one administration candidate making it to the magic 12

rendered the senatorial canvass highly anomalous. The erasures and

alterations manifest in the certificate of canvass could have been made

to conceal the shaving of the votes for TU candidates, Zubiri included.

Considering that the truthfulness of the results contained in the

certificate of canvass cannot be truly and conclusively determined by a

mere consideration of its appearance and condition, judicial recount of

the results must be resorted to.

(10) In ZAMBOANGA CITY, -

In Zamboanga City administration candidates specifically in the

City and provincial levels had only token opponents. The result

therefore showing only one administration candidate making it to thePIMENTELS MEMORANDUM



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magic 12 rendered the senatorial canvass highly anomalous. The

erasures and alterations manifest in the certificate of canvass could

have been made to conceal the shaving of the votes for TU candidates,

Zubiri included. Considering that the truthfulness of the results

contained in the certificate of canvass cannot be truly and conclusively

determined by a mere consideration of its appearance and condition,

judicial recount of the results must be resorted to.

(11) In the PROVINCES OF LAGUNA, PALAWAN, NUEVA ECIJA and

QUEZON (all of their respective municipalities), -

The results as reflected in the certificate of canvass pertaining to

said provinces are definitely statistically improbable considering that

only two candidates of the administration made it to the magic 12. The

certificate of canvass contain erasures and alterations specially in the

votes indicated for Zubiri. As a rule, allegations of fraudulent

preparation can be summarily dismissed by the boards of canvassers if

the alleged irregularity is not manifest on the face of the certificates.

Considering that there were erasures and alterations in the results

contained in the certificate of canvass, the truthfulness of the votes

credited foe Zubiri reflected therein cannot be fully ascertained by a

mere superficial consideration of its appearance.

(12) In the MUNICIPALITY OF PATEROS and MUNTINLUPA CITY, -

The results in these constituencies are impugned on the following

grounds:

Substitute voting or voting by persons other than the registered

voters which partly account for the presence of ballots which were

prepared in pairs or in groups, in favor of protestant.


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Illiterate/disabled voters assisted by unqualified assistors, or

assistors who filled up ballots contrary to or not in accord with the

illiterate/disabled voters instructions Assistors who are not BEI

members, but who are well-known supporters of the opposition

candidates assisted more than three times, in violation of the Omnibus

Election Code, thereby unduly increasing the votes of opposition

candidates, protestant included.

It is easy to make the above-quoted claims, especially if the claimant is the one

enjoying the privileges and resources of the contested office! The allegations made by

Zubiri are laughable indeed, just take a second look at the outrageous arguments

advanced by Zubiri forMAKATI CITY, NAVOTAS CITY, PARAAQUE CITY,

PASIG CITY, MANILA CITY, MARIKINA CITY, MALABON CITY, LAS

PIAS CITY, PASAY CITY, and QUEZON CITY, which are representative of therest of the counter-protested areas, to wit:

The results in these cities are statisticallyimprobable as shown by the fact that only oneadministration candidate made it to the magic 12. Thevoters of these progressive cities are noted for beingindependent and for political choices which transcendsparty affiliations. It is therefore anomalous that no otherTU candidates, specifically protestee Zubiri receivedvotes sufficient to land them to the 12 voterspreference.

and

Quezon City is the seat of the House of Representatives of which protestee is a member. It istherefore beyond belief that the votes reflected in theelection returns prepared by the Board of ElectionInspectors were far below than what had been projectedas votes garnered by protestee.


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For the PROVINCE OF CAGAYAN, MANDALUYONG CITY, and

BOGO CITY in CEBU, Zubiri did not even attempt to give any justification for their

inclusion in his counter-protest!

Just to be sure, Zubiri added GENERAL GROUNDS to justify his massive

counter-protest, as follows:

In addition to the specifically mentioned election anomalies andirregularities committed in these Ten (10) provinces and Seventeen (17)cities that redounded to the benefit of the protestant, protestee/counter-protestant is raising the following grounds in support of the allegationsof fraud in the above-enumerated precincts:

a. Votes in the ballots lawfully and validly cast in favor of protestee weredeliberately misread and/or mis-appreciated by the various chairmen of thedifferent boards of election inspectors;

b. Valid votes of protestee were intentionally or erroneously counted ortallied in the election returns as votes for the other senatorial candidates;

c. Thousands of valid ballots containing valid votes for protestee wereintentionally and erroneously mis-appreciated or considered as marked anddeclared as null and void;

d. Votes that are void because the ballots containing them were pastedwith stickers or because of other fraud and election anomalies, were unlawfullyread and counted in favor of theprotestee [emphasis supplied]; and,

Votes reported in numerous election returns were unlawfully increasedin favor of the protestant and his political allies, while votes in saidelection returns for the protestee were unlawfully decreased (dagdag-bawas), such that protestant and his groups appeared to have obtainedmore votes than those actually cast in his favor, while the protesteeappeared to have obtained less votes than the actually cast in his(protestees) favor.

But the above-quoted general grounds have been proven to have been copied

(through cut and paste technology) from the grounds alleged in the protest involved

in the case ofHomer T. Saquilayan v. Commission on Elections and Oscar Jaro, G.

R. No. 157249, November 28, 2003, which involved the contested position of Mayor

of Imus, Cavite, during the 2001 elections! (That explains the use of the word

protestee in paragraph (d) above. Zubiri is in effect protesting against himself!)

WHAT KIND OF A SHAM COUNTER-PROTEST IS THIS?


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Pimentel, from the start, has NEVER RECOGNIZED the validity of Zubiris

absurd Counter-Protest covering one-third of the entire Philippines! Pimentel does not

want to cheat, did not and will never cheat, and does not even have the capability and

the facilities to cheat even in one small municipality, how much more in one-third of

the entire Philippines.

Pimentel answered Zubiris Counter-Protest as follows:

b. By Way of Answer to Counter-Protest

12. Protestant Pimentel specifically denies the enumerated [A]cts andomissions unfairly favoring Pimentel to the prejudice of Zubiri

alleged to have been committed in a total of 73,265 precincts cuttingacross 10 provinces and 17 cities and the precincts covered byPimentels protest itself, as presented in the paragraphs found in pages22 to 45, inclusive. The purported allegations of fraud therein areself-serving, speculative and completely unfounded, as they arewithout factual anchor.

13. Easily a cause for wonderment, if not amusement, is the fact thatZubiri dared counter-protest the official results in the various cities andmunicipalities of Metro Manila! His common complaint relative to theMetro Manila results is that administration candidates, includingZubiri, barely made it to the magic 12 in most of the Metro Manilaareas. But, of course! Metro Manila is, traditionally and habitually, anopposition bailiwick. With ready access to information and events ofpolitical import, or significance, the Metro Manila electorate was at amost distinct position to pass judgment on the acceptability, worthinessand achievements of the senatorial candidates. The verdict was aresounding rejection of the administration candidates. No fair orreasonable mind would accept Zubiris suppositions of statisticallyimprobable or fraudulent senatorial results in Metro Manila and othercounter-protested areas.

14. Zubiris underlying but unstated theory is that if he did not fall

within the top 12 winning senatorial candidates, then he must havebeen cheated! Such is a ridiculous theory. And reveals the conceit ofa person spoiled with generous servings of so-called command votes.In areas which Zubiri himself labels as independent-minded andintelligent, he loses. Doesnt he get the point?

15. The sheer number of the precincts subject of Zubiris counter-protest a total of 73,265 precincts (70,607 new precincts as well asthe originally protested 2,658 precincts) is mind-boggling, borderingon the absurd or preposterous. Given such high number of counter-protested precincts, then Zubiri ought to be the actual protestant.

15.1. Zubiri questions the election results in 73,265 precincts whichis about one-third (1/3) of the entire country (total of 224,682 clusteredprecincts). If the election, under which he has been proclaimed elected,was marred by fraud to such a massive extent, then why did Zubiriaccept his alleged mandate from such fraudulent elections?

15.2. By counter-protesting 1/3 of the country, it is OBVIOUS thatZubiri, the one enjoying the contested office, is involved in a DELAY-


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THE-PROTEST strategy! Which strategy speaks volumes on the lackof substance, integrity and credibility of his counter-protest. Themassive scope of the counter-protest even smacks of bad faith.

16. Zubiris confusion or DELAY-THE-PROTEST strategy alsoreveals itself in his adoption of the originally the protested 2,658 precincts. According to Zubiri: xxx Protestee therefore intends toshow, that the votes credited to protestant and to protestee in thecanvass proceedings by the National Board of Canvassers truthfully pertains to each of them. In the event therefore that protestantwithdraws protested precincts from judicial recount, protestee shall, byway of this counter-protest pursue said course of action based on theirregularities and fraud cited in pages 43 to 44 hereof. (emphasissupplied; p. 45, Answer)

16.1. Pages 43 to 44 mention deliberate misreading, mis-tallying,

misappreciation, unlawful counting of marked ballots, intentionaldagdag-bawas, which are all fraudulent acts. So, which is which? Arethe results in the originally protested 2,658 precincts truthful or theresults of intentional fraudulent acts? [emphasis supplied]

It is a basic doctrine in law that HE WHO ALLEGES MUST PROVE!

In an election protest (and counter-protest), it is not enough for the protestant

(and the counter-protestant in a counter-protest) to prove that the election was not

perfect, for no election will ever be perfect, most especially a manual one. It is also not

enough for the protestant (and the counter-protestant in a counter-protest) to prove that

there were irregularities, as not all irregularities amount to fraud which frustrate the

will of the electorate. It is also not enough for the protestant (and the counter-

protestant in a counter-protest) to simply prove that there was fraud, any kind of fraud.

The fraud which must be proven by the protestant (and the counter-protestant in a

counter-protest) is one of such nature and magnitude as to affect and change the

outcome of the election being contested.

In the case of Zubiri, he must prove from his pilot precincts, which are

supposed to be his BEST EVIDENCE of the fraud he has complained about or best

exemplifying or demonstrating the electoral frauds pleaded by him (per Rule 79 of

the SET Rules), that fraud was committed against him in such magnitude as to

overcome the tremendous lead established over him by Pimentel from Pimentels main

protest.


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So, what has Zubiri proven in his counter-protest? Absolutely Nothing!

III. WHAT KIND OF A SHAM COUNTER-PROTEST IS THIS?

Although the above-quoted ludicrous allegations of Zubiri already betray the

baselessness of his Counter-Protest, this Honorable Tribunal gave him the chance to

prove his allegations, even giving him an extension of time of fifty two (52) days to do

so, after he intentionally wasted the first eighty four (84) days for the presentation of

his evidence.

Zubiris Documentary Evidence

For his DOCUMENTARY EVIDENCE, Zubiri presented merely the

following documents, aside from the Revision Reports:

(1) For Makati City, -

Letter-Request addressed to Comelec re: Project of Precincts (POP),Statement of Votes (SOV), etc. (Exh. A)

Notice from the Comelec granting the above-stated request (Exh. A-1)

Project of Precincts (Exh. A-2) Statement of Votes (Exh. B) Comelecs Statistical Data of Number of Registered Voters and the

Number of Voters Who Actually Voted during May 14, 2007 Nationaland Local Elections (Exh. C)

Zubiris Own Statistical Data Per Revision (Exh. E) Zubiris Own Preliminary Appreciation Result (Exh. F)

(2) For Muntinlupa City, -

Project of Precincts (Exh. A2) Statement of Votes (Exh. B2) Zubiris Own Statistical Data Per Revision (Exh. E2) Zubiris Own Preliminary Appreciation Result (Exh. F2)

(3) For Las Pias City, -

Project of Precincts (Exh. A3) Statement of Votes (Exh. B3) Comelecs Statistical Data of Number of Registered Voters and the

Number of Voters Who Actually Voted during May 14, 2007 Nationaland Local Elections (Exh. C3)

Zubiris Own Statistical Data Per Revision (Exh. E3) Zubiris Own Preliminary Appreciation Result (Exh. F3)


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(4) For Paraaque City, -

Project of Precincts (Exh. A4)

Statement of Votes (Exh. B4

) Comelecs Statistical Data of Number of Registered Voters and the



(5) For Quezon City, -

Letter-Request addressed to the Comelec re: Certified True Copies ofthe Project of Precincts (POP), Statement of Votes (SOV) etc. (Exh.

A5

) Notice from the Comelec granting the above-stated request (Exh. A5-

1.5) Project of Precincts (Exh. A5) Statement of Votes (Exh. B5) Comelecs Statistical Data of Number of Registered Voters and the



(6) For Caloocan City, -




(7) For Pasay City, -





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(8) For Pasig City, -






(9) For San Juan City, -

Project of Precincts (Exh. A9) Statement of Votes (Exh. B9)

Comelecs Statistical Data of Number of Registered Voters and theNumber of Voters Who Actually Voted during May 14, 2007 Nationaland Local Elections (Exh. C9)


(10) For the Municipality of Pateros, -


Number of Voters Who Actually Voted during May 14, 2007 Nationaland Local Elections (Exh. C10) Zubiris Own Statistical Data Per Revision (Exh. E10) Zubiris Own Preliminary Appreciation Result (Exh. F10)

(11) For Marikina City, -


Number of Voters Who Actually Voted during May 14, 2007 National

and Local Elections (Exh. C11

) Zubiris Own Statistical Data Per Revision (Exh. E11) Zubiris Own Preliminary Appreciation Result (Exh. F11)

(12) For Mandaluyong City, -



Zubiris Own Statistical Data Per Revision (Exh. E12

) Zubiris Own Preliminary Appreciation Result (Exh. F12)


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(13) For the City of Manila, -






(14) For Malabon City, -




(15) For Navotas City, -



(16) For Laguna Province, -





(17) For Nueva Ecija Province, -






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(18) For Zamboanga City, -






(19) For Quezon Province, -




(20) For Cavite Province, -



(21) For Cagayan Province, -





(22) For Ilocos Norte Province, -






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(23) For Camarines Norte Province, -






(24) For Bogo City, in Cebu -




(25) For Palawan Province, -



(26) For Bulacan Province, -





(27) For Batangas Province, -





What kind of fraud did Zubiri try to prove from the Project of Precincts,

Statement of Votes, and the Comelecs Statistical Data of Number of RegisteredPIMENTELS MEMORANDUM



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Voters and the Number of Voters Who Actually Voted during May 14, 2007 National

and Local Elections prove? Absolutely Nothing!

It is noteworthy to highlight that in spite of the above-quoted allegations used

by Zubiri to justify his colossal counter-protest, Zubiri did not formally offer any

election return as documentary evidence (even for those precincts which did not yield

an ER). There was not even an effort on Zubiris part to fill in the blanks, so to speak.

It was Pimentel, the counter-protestee, who formally offered the ERs in the best

interest of justice, in order to complete the picture. At any rate, this Honorable

Tribunal has broad powers to secure documents and retrieve other data in order to

fully determine the real choice of the people in the contested election.

Zubiris own Statistical Data Reports and Preliminary Appreciation Results

have been objected to by Pimentel as follows:

(1) Re: Zubiris own Statistical Data Reports

1. Baseless and self-serving.2. The Zubiri Statistical Data Report (ZSDR) has not been identified bythe persons who executed or prepared the same. These persons have not been identified and presented before this Tribunal, thus denyingCounter-Protestee Pimentel the right and opportunity to cross-examinethem;

3. The methodology used in coming up with the ZSDR has not evenbeen explained. Counter-Protestee Pimentel has noticed precincts withentries under the Election Return (ER) column but with nocorresponding entries in the Physical Count (PC) column. Alsonoticed were very inaccurate (wrong) figures in many of the ER andPC entries;

4. Furthermore, precincts not listed as pilot precincts have beenincluded in the ZSDR. Also, precincts which were not revised at allwere even included in the ZSDR;


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(2) Re: Zubiris own Preliminary Appreciation Results

1. Baseless and self-serving.

2. The Zubiri Preliminary Appreciation (ZPA) has not been identifiedby the persons who executed or prepared the same. These persons havenot been identified and presented before this Tribunal, thus denyingCounter-Protestee Pimentel the right and opportunity to cross-examinethem;

3. The methodology used in coming up with the ZPA has not even beenexplained;

4. Precincts not listed as pilot precincts have been included in the

ZPA;

5. The appreciation of ballots is the exclusive domain of this HonorableTribunal. This Honorable Tribunal does not need help from the partiesthrough self-serving studies and reports allegedly made by self-proclaimed seasoned and experienced supervisors and revisors todetermine the validity of objected and claimed ballots;

6. In addition, the more or less 129,823 allegedly invalid ballots forPimentel allegedly found during revision is a figment of Zubiris andhis party revisors imagination.

Furthermore, both sets of documents totally disregarded the requirements of

the Rules of Court on proof of private documents.

It is obvious that the above-mentioned documentary exhibits of Zubiri cannot

prove and cannot be used to prove any kind of fraud at all, most especially the ones

alleged by Zubiri in order to justify his gargantuan Counter-Protest, which have

already been quoted earlier.

Zubiris Witnesses

For his testimonial evidence, Zubiri merely presented 42 witnesses, 40 of

whom are in his payroll as either revision supervisor or revisor (after convincing the

SET that he had 70 witnesses who would prove fraud, and securing an extension of

time which further delayed the disposition of this case by a couple of months). The

other two (2) witnesses (one a private supplier of paper to the Comelec and the other a

government employee) were not even eye-witnesses to any kind of fraud.


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If we look at the witnesses presented by Zubiri, it is obvious that he never

intended to prove anything from these people but merely wanted to waste time by

repeating the objections and observations already made and noted during the revision

proceedings, and consequently delay the proper and prompt disposition of this case.

The following were the witnesses presented by Zubiri:

Name PositionMARIA ELIZABETH D.MACARUBBO

Zubiris Own Revision Supervisor

RHODORA M. MAYONO Zubiris Own Revisor MA. CRISTINA LEIDO Zubiris Own Revisor

CECILLE BERCASIO Zubiris Own Revisor CAROLINA ALUARTE Zubiris Own Revisor MARILYN POBLETE Zubiris Own Revisor RONALD OCAMPO Zubiris Own Revisor JOSE WONG Zubiris Own Revisor LEONIDA VILLA-REAL Zubiris Own Revisor DONNA DE JESUS Zubiris Own Revisor EDMOND ALUARTE Zubiris Own Revisor GILBERTO MIRANDA Zubiris Own Revisor ALFIE SORIANO Zubiris Own Revisor RICHARD OCAMPO Zubiris Own Revisor

PEPITO LLAMAS Zubiris Own Revisor GERALD PAUL PARAS Zubiris Own Revisor JOY ROQUITA DELA MERCED Zubiris Own RevisorCARMELO FERRER Zubiris Own Revisor ADELA DELIA ARZAGA Zubiris Own Revisor JOVITO FELIPE Zubiris Own Revisor DARIUS E. MAURERA Zubiris Own Revisor ROSELLE GUINO-O Zubiris Own Revisor SEGUNDINO SANDALO Zubiris Own Revisor DIOSDADO LAGANDAON Zubiris Own Revisor KENNETH JESPER A. APACIBLE Zubiris Own RevisorMERIAM VINANWA Zubiris Own Revisor ARVIN ASUNCION Zubiris Own Revisor TEODORO ASUNCION Zubiris Own Revisor REAGAN GABRIEL Zubiris Own Revisor ROBERT MACARUBBO Zubiris Own Revisor BRYAN GALLARDO Zubiris Own Revisor LUCILA TAGAYON Zubiris Own Revisor ARTURO ROSALES Zubiris Own Revisor JONATHAN Y. JENSEN Zubiris Own Revisor KATE ERES Zubiris Own Revisor

VIOLETA ROCERO Zubiris Own Revisor MARY DORIE DELA CRUZ Zubiris Own Revisor OLIVER RAESES Zubiris Own Revisor REYMAR DONATO Zubiris Own Revisor HENRY YOUNG Paper Supplier to the Comelec for the

2007 Elections


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MA. GRACIA ENRIQUEZ Asst. Div. Chief of the PhotolithographicDivision, National Printing Office

The revision supervisor (Macarubbo) did not sit in any revision team so she

had actually nothing at all to say.

The 39 other partisan Zubiri revisors merely wanted to re-state what they had

already written in their revision reports, in an obvious attempt to waste time and for

Zubiris lawyers to justify their motion for extension of time which was based on a

claim of having witnesses who could prove fraud1, which in turn unnecessarily

delayed this case for a couple of months.

Given the nature of the documentary exhibits formally offered by Zubiri,

coupled with his intentional avoidance of presenting Election Returns as evidence, as

well as the type of the witnesses he presented for examination and their self-serving

testimonies which contributed nothing of significance to this case, it is obvious that

Zubiri has abandoned the allegations he had made to justify his Counter-Protest.

For example, please take a second look at one of his allegations for his

counter-protest:

(12) In the MUNICIPALITY OF PATEROS andMUNTINLUPA CITY, -

The results in these constituencies are impugned onthe following grounds:

Substitute voting or voting by persons other than the

registered voters which partly account for the presenceof ballots which were prepared in pairs or in groups, infavor of protestant.

Illiterate/disabled voters assisted by unqualifiedassistors, or assistors who filled up ballots contrary to ornot in accord with the illiterate/disabled voters

1 In the Motion for Reconsideration [Re: SET Resolution No. 07-91] dated Dec. 9, 2009, Pimentelstated that2. When Zubiri was arguing to be given a whopping 620 days for the presentation of his evidencethrough various Motions and Manifestations, he never mentioned that he needed this vast amount oftime also for the presentation of witnesses to testify on some very important matters specifically the

authenticity of the ballots found inside the ballot boxes in certain areas included in the counter-protest.All he ever mentioned was the magnitude of the data involved in the instant case.3. It was only in Zubiris Reply to Pimentels Opposition to his Motion for Extension that Zubirirevealed in paragraph 15 thereof that he has 70 witnesses.4. The claim of 70 witnesses is clearly an afterthought meant to provide the grave reason for themotion for extension with the ultimate purpose of delaying the prompt and proper disposition of thisProtest.


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instructions Assistors who are not BEI members, butwho are well-known supporters of the oppositioncandidates assisted more than three times, in violation ofthe Omnibus Election Code, thereby unduly increasing

the votes of opposition candidates, protestant included.

Zubiri did not even lift a finger in an effort to prove the above-quoted

allegation!

In Zubiris Formal Offer of Evidence (at page 6,390), he claims that Pimentel

has 129,823 invalid votes. (Actually, the Revision Reports will show that Zubiris

strategy was to object to ALL of Pimentels votes, pursuing the implied theory that

Pimentel never got any valid votes in the counter-protested areas, which is another

absurd stance!)

Praying for the invalidation of such a large number of votes on the imagined

grounds of Marked Ballot (MB), Written by One Ballots (WBO), Written by Two

Ballot (WBT), Spurious Ballots (SB)2, and other imaginary grounds, actually

violates another fundamental principle of law that votes are not to be invalidated forflimsy reasons. In fact, the law says it should be the other way around, that is, every

argument must be considered in order to UPHOLD a vote.

Just take a look at the Omnibus Election Code, which provides:

Sec. 211. Rules for the appreciation of ballots. - In the reading andappreciation of ballots, every ballot shall be presumed to be validunless there is clear and good reason to justify its rejection. xxx

Jurisprudence further provides that The will of the voters is embodied in the

ballots. To ascertain and carry out such will, their ballots must be read and

appreciated according to the rule that every ballot is presumed valid unless there is

clear and good reason to justify its rejection. (CORNELIO DELOS REYES vs.

COMELEC, G. R. No. 170070, February 28, 2007, citing Bautista vs. Castro, G.R.

No. 61260, February 17, 1992.)

2And spurious ballots introduced throughpost-election fraud.


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Furthermore, the case of ROSAL vs. COMELEC and IMPERIAL, G. R. Nos.

168253 and 172741, March 16, 2007, provides the following other requirements in

an election protest (or counter-protest) which relies so much on the results of the

appreciation of ballots:

xxx the single most vital threshold question in an election protest,namely, whether the ballots found in the ballot boxes during therevision proceedings were the same ballots that were cast and countedin the elections.

The purpose of an election protest is to ascertain whether thecandidate proclaimed elected by the board of canvassers is the true andlawful choice of the electorate. Such a proceeding is usually institutedon the theory that the election returns, which are deemed prima facie tobe true reports of how the electorate voted on election day and whichserve as the basis for proclaiming the winning candidate, do notaccurately reflect the true will of the voters due to alleged irregularitiesthat attended the counting of ballots. In a protest prosecuted on such atheory, the protestant ordinarily prays that the official count as reflectedin the election returns be set aside in favor of a revision and recount ofthe ballots, the results of which should be made to prevail over thosereflected in the returns pursuant to the doctrine that in an electioncontest where what is involved is the number of votes of eachcandidate, the best and most conclusive evidence are the ballotsthemselves.

It should never be forgotten, though, that the superior status of theballots as evidence of how the electorate voted presupposes that thesewere the very same ballots actually cast and counted in the elections.Thus, it has been held that before the ballots found in a box can be usedto set aside the returns, the court (or the Comelec as the case may be)must be sure that it has before it the same ballots deposited by thevoters.

xxx

We summarize the foregoing doctrines: (1) the ballots cannot beused to overturn the official count as reflected in the electionreturns unless it is first shown affirmatively that the ballots havebeen preserved with a care which precludes the opportunity oftampering and all suspicion of change, abstraction or substitution;(2) the burden of proving that the integrity of the ballots has beenpreserved in such a manner is on the protestant; (3) where a modeof preserving the ballots is enjoined by law, proof must be made ofsuch substantial compliance with the requirements of that mode as

would provide assurance that the ballots have been kept inviolatenotwithstanding slight deviations from the precise mode ofachieving that end; (4) it is only when the protestant has shownsubstantial compliance with the provisions of law on thepreservation of ballots that the burden of proving actual tamperingor the likelihood thereof shifts to the protestee and (5) only if itappears to the satisfaction of the court or Comelec that the


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integrity of the ballots has been preserved should it adopt the resultas shown by the recount and not as reflected in the election returns.

xxx

As made abundantly clear by the foregoing provisions, the mode ofpreserving the ballots in this jurisdiction is for these to be stored safelyin sealed and padlocked ballot boxes which, once closed, shall remainunopened unless otherwise ordered by the Comelec in cases allowed bylaw. The integrity of the ballots and therefore their probative value, asevidence of the voters will, are contingent on the integrity of the ballotboxes in which they were stored. Thus, it is incumbent on the protestantto prove, at the very least, that the safety features meant to preserve theintegrity of the ballot boxes and their contents were installed and thatthese remained in place up to the time of their delivery to the Comelecfor the revision proceedings. If such substantial compliance with these

safety measures is shown as would preclude a reasonable opportunityof tampering with the ballot boxes contents, the burden shifts to theprotestee to prove that actual tampering took place. If the protestee failsto discharge this burden, the court or the Comelec, as the case may be,may proceed on the assumption that the ballots have retained theirintegrity and still constitute the best evidence of the election results.However, where a ballot box is found in such a condition as wouldraise a reasonable suspicion that unauthorized persons could havegained unlawful access to its contents, no evidentiary value can begiven to the ballots in it and the official count reflected in the electionreturn must be upheld as the better and more reliable account of how

and for whom the electorate voted.

xxx

In keeping with the precepts laid down in this decision, the Comelecmust first ascertain, after due hearing, whether it has before it the sameballots cast and counted in the elections. For this purpose, it mustdetermine: (1) which ballot boxes sufficiently retained their integrity asto justify the conclusion that the ballots contained therein could berelied on as better evidence than the election returns and (2) whichballot boxes were in such a condition as would afford a reasonableopportunity for unauthorized persons to gain unlawful access to theircontents. In the latter case, the ballots must be held to have lost all probative value and cannot be used to set aside the official countreflected in the election returns.

In the proceedings of this Counter-Protest (where ZUBIRI IS THE

PROTESTANT), Zubiri did not even attempt to comply with the doctrine stated in the

RosalCase and discharge his burden of proving that the integrity of the ballots has

been preserved with a care which precludes the opportunity of tampering and all

suspicion of change, abstraction or substitution. To reiterate, the burden is on the

protestant and Zubiri is the protestant in this stage of the proceedings.


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So, what have been the results of the revision of the pilot precincts in Zubiris

Counter-Protest?

IV. RESULTS OF THE REVISION IN ZUBIRIS PILOT PRECINCTS INTHE COUNTER-PROTEST

As mentioned earlier, Zubiri designated a total of 18,316 precincts as his

pilot precincts. It should be emphasized that pilot precincts under Rule 79 of the

SET Rules are what the party deems as best exemplifying or demonstrating the

electoral frauds pleaded by each of them. Zubiri must prove his allegations from

his pilot precincts and when he fails, he cannot promise that sufficient evidence

shall be provided by or be found in the 75% remainder of his Counter-Protest. That

would go against the spirit and terms of Rule 79 of the SET Rules as the ordinary

75% cannot possibly provide better proof than the best 25%. Zubiri has only one

chance to prove his allegations and he has to do it through his pilot precincts, the so-

called best 25%.

IV-A. PIMENTELS CLAIMS

Pimentel made a total of 12,915 CLAIMS.

The SET Revision Committee adopted the following Rules on what votes to

count during the physical counting of votes, to wit:

VALID VOTES:

1. Surname only2. First name only3. Nickname only4. Erroneous initial of first name but correct surname5. Erroneous initial of surname but correct first name6. Erroneous middle initial7. Erased name and another clearly written, the latter is valid8. Name incorrectly written but when read has a similar sound


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NOT VALID:

1. 2 Surnames in one line

2. Correct first name but incorrect surname3. Correct surname but incorrect first name4. Names in excess of the 12th slot

In a conference called by SET Secretary Atty. Irene Guevarra held on Nov. 12,

2008, Pimentel pointed out and objected to the literal and strict application of the

above Rules by the SET Revision Committee which has caused the exclusion from the

physical counting of votes of some Pimentel votes, which Pimentel believed should be

counted pursuant to Sec. 211 of the Omnibus Election Code (subject of course to

objection by Zubiris revisors if they so desire).

Following a lengthy and heated discussion on the matter, Pimentel no longer

insisted on debating with Zubiris counsel on what is the proper interpretation of the

various scenarios under Sec. 211 of the Omnibus Election Code and on what should

constitute a reasonable application of these Rules, as it was pointed out by SET

Secretary Guevarra during the meeting that the remedy of the aggrieved party is to

make or register CLAIMS to those votes not included in the physical counting of

votes.

Pimentels point is that perfection in the writing of their votes must not be

demanded from our voters.

The Different Categories / Codes for Pimentels Claims

CODE 1: votes written as Aquilino Pimentel Jr., Aquilino Pimentel [with

other suffixes], and other similar cases were not counted for Pimentel, in clear

violation of the following provision of the Omnibus Election Code (OEC):

Sec. 211. Rules for the appreciation of ballots. - In the reading andappreciation of ballots, every ballot shall be presumed to be validunless there is clear and good reason to justify its rejection. Theboard of election inspectors shall observe the following rules,bearing in mind that the object of the election is to obtain theexpression of the voter's will:


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11. The fact that there exists another person who is not a candidatewith the first name or surname of a candidate shall not prevent theadjudication of the vote of the latter.

12. Ballots which contain prefixes such as Sr., Mr., Datu,Don, Ginoo, Hon., Gob. or suffixes like Hijo, Jr.,Segundo, are valid. [emphasis supplied]

A total of 2,544 votes falling under CODE 1 CLAIMS were not physically

counted for Pimentel during the revision. These are claimed under the INTENT RULE

(IR) and Pars. 11 and 12 of Sec. 211 of the OEC, and will be discussed in the annex

for claims per counter-protested area.

CODE 2: votes written as Aquino Pimentel, Pimentel Aquino, orAquino L.

Pimentelwere not counted for Pimentel even though (1) the voter already voted for

senatorial candidate Benigno Aquino on some other slot and (2) the word Aquino is a

clear misspelling of Pimentels first name, which is Aquilino, in clear violation of the

following provision of the Omnibus Election Code:

Sec. 211, OEC: 7. A name or surname incorrectly written which,when read, has a sound similar to the name or surname of acandidate when correctly written shall be counted in his favor;

which provides for the so-called IDEM SONANS Rule (IS).

Furthermore, L. is the correct middle initial of Pimentel.



(IR) and the IDEM SONANS Rule (IS) and will be discussed in the annex for

claims per counter-protested area.

CODE 3: votes written as Aquino Pimentel, Pimentel Aquino, orAquino L.

Pimentel were not counted for Pimentel even though the word Aquino is a clear

misspelling of Pimentels first name, which is Aquilino, in clear violation of the



Furthermore, L. is the correct middle initial of Pimentel.


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counted for Pimentel during the revision. These are claimed under the IDEM

SONANS Rule (IS) and the INTENT Rule (IR) and will be discussed in the annex

for claims per counter-protested area.

CODE 4: votes written as Kiko Pimentelwere not counted for Pimentel even

though (1) the voter already voted for senatorial candidate Francis Pangilinan (whose

nickname is known to be Kiko) on some other slot and (2) the word Kiko is a clear

misspelling of Pimentels registered nickname, which isKoko, in clear violation of the



A total of 585 votes falling under CODE 4 CLAIMS were not physically




CODE 5: votes written as Kiko Pimentelwere not counted for Pimentel even

though the wordKiko is a clear misspelling of Pimentels registered nickname, which

isKoko, in clear violation of the following provision of the Omnibus Election Code:






CODE 6: votes written as Roco Pimentelwere not counted for Pimentel even

though (1) the voter already voted for senatorial candidate Sonia Roco on some other

slot and (2) the word Roco is a clear misspelling of Pimentels registered nickname,


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which is Koko, in clear violation of the following provision of the Omnibus Election

Code:






CODE 7: votes written as Roco Pimentelwere not counted for Pimentel even

though the wordRoco is a clear misspelling of Pimentels registered nickname, which

isKoko, in clear violation of the following provision of the Omnibus Election Code:






CODE 8: votes written as Coco Pimentel, Cocoy Pimentel,Keko Pimentel, and

other similar cases were not counted for Pimentel even though the word

accompanying the surname Pimentel is a clear misspelling of Pimentels registered

nickname, which isKoko, in clear violation of the following provision of the Omnibus

Election Code:


xxx

13. The use of the nicknames and appellations of affection andfriendship, if accompanied by the first name or surname of thecandidate, does not annul such vote, except when they were used asa means to identify the voter, in which case the whole ballot isinvalid: Provided, That if the nickname used is unaccompanied by


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the name or surname of a candidate and it is the one by which he isgenerally or popularly known in the locality, the name shall becounted in favor of said candidate, if there is no other candidate forthe same office with the same nickname.



(IR) and the IDEM SONANS Rule (IS) and Par. 13 of Sec. 211 of the OEC and

will be discussed in the annex for claims per counter-protested area.

CODE 9: various cases of misspelling by our electorate, where the name

Aquilino PimentelorPimentel orKoko Pimentelwas not perfectly written by the

voter, were also not physically counted for Pimentel during the revision, in clear

violation of the following provision of the Omnibus Election Code:




(IR) and the IDEM SONANS Rule (IS), and will be discussed in the annex for


CODE 10: cases falling under Par. 11, Sec. 211 of the OEC which provides:

Sec. 211, OEC: 11. The fact that there exists another person whois not a candidate with the first name or surname of a candidateshall not prevent the adjudication of the vote of the latter.



(IR) and Par. 11, Sec. 211 of the OEC, and will be discussed in the annex for claims

per counter-protested area.

CODE 11: votes ofPimentelwhich were misplaced (written on the wrong

space in the ballot).


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(IR) and will be discussed in the annex for claims per counter-protested area.

CODE 12: votes ofPimentel appearing on ballots which were declared as

excess, marked, or spoiled, which fact was however not recorded in the Minutes

of Voting (MOV).



(IR) and will be discussed in the annex for claims per counter-protested area.

CODE 13: votes forPimentel with wrong initials were also not physically

counted for Pimentel during the revision, in clear violation of the following provision

of the Omnibus Election Code:

Sec. 211, OEC: 10. The erroneous initial of the first name whichaccompanies the correct surname of a candidate, the erroneous

initial of the surname accompanying the correct first name of acandidate, or the erroneous middle initial of the candidate shall notannul the vote in favor of the latter.



(IR) and Par. 10 of Sec. 211 of the OEC, and will be discussed in the annex for


CODE 14: votes forPimentelclaimed on various OTHER GROUNDS.



(IR), the IDEM SONANS RULE (IS), and the OEC, and will be discussed in the

annex for claims per counter-protested area.


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IV-B. RESULTS OF THE PHYSICAL COUNTING OF VOTES IN THE PILOT

PRECINCTS

The following are the results of the physical counting of votes in the pilot

precincts per Counter-Protested City/Municipality and Province.

(1) In Makati City:

In his Preliminary Conference Brief, Zubiri attempted to designate 885

pilot precincts. (Actually listed were 903 precinct numbers with 25

precincts double-listed.)

A total of 876 precincts were actually revised, 9 of which were non-

pilot precincts. Hence, only 867 pilot precincts were revised;

6 ballot boxes out of 867 or 0.69% had no ballots;

For the 861 precincts with physical counting of votes and

corresponding ER votes (taken from either the ballot box copy or the

certified true copy secured from the Comelec), the following are the

relevant figures:

ER VOTESPHYSICALCOUNT

DIFFERENCE(PC minus ER)

PIMENTEL 59,097 58,438 -659

ZUBIRI 34,663 34,569 -94(please see Makati City Summary of Votes; ANNEX A)

The difference in Pimentels votes can be explained partly by his 428

CLAIMED VOTES in Makati City (see ANNEX B);

Pimentel also objected to 177 MARKED BALLOTS of Zubiri in

Makati City (the grounds for these selected marked ballots are in

ANNEX C);


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One thing is clear from the above figures, THERE WAS NO FRAUD

IN THE CONDUCT OF THE 2007 SENATORIAL ELECTIONS IN

MAKATI CITY!


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(2) In Muntinlupa City:


pilot precincts. (1 precinct was double-listed.)







relevant figures:



PIMENTEL 19,598 19,395 -203

ZUBIRI 11,959 11,938 -21(please see Muntinlupa City Summary of Votes; ANNEX D)


CLAIMED VOTES in Muntinlupa City (see ANNEX E);

Pimentel also objected to 68 selected MARKED BALLOTS of Zubiri

(see ANNEX F);



MUNTINLUPA CITY!

(3) In Las Pias City, -


pilot precincts;


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relevant figures:

ER VOTESPHYSICAL

COUNT

DIFFERENCE

(PC minus ER)PIMENTEL 20,079 19,694 -385ZUBIRI 14,574 14,565 -9

(please see Las Pinas City Summary of Votes; ANNEX G)NOTE: So as not to distort the final figures, the above figures already exclude boththe PC and ER entries for both parties from Precinct Nos. 217A and 707B becausethe ER entries were unreadable for one or both of the parties. Hence, total precinctsincluded in the table is 403 (405 minus 2).


CLAIMED VOTES in Las Pias City (see ANNEX H);


(see ANNEX I);



LAS PIAS CITY!

(4) In Paraaque City, -


pilot precincts. (1 precinct was double-listed and 1 precinct listed as

clustered turned out to be 2 individual precincts.)

A total of 305 precincts were actually revised, 1 of which was a non-

pilot precinct. Hence, only 304 pilot precincts were revised;

1 ballot box out of 304 or 0.32% had no ballots;


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relevant figures:



PIMENTEL 20,509 20,201 -308ZUBIRI 14,914 14,865 -49

(please see Paraaque City Summary of Votes; ANNEX J)


CLAIMED VOTES in Paraaque City (see ANNEX K);


(see ANNEX L);


IN THE CONDUCT OF THE 2007 SENATORIAL ELECTIONS INPARAAQUE!

(5) In Quezon City, -

In his Preliminary Conference Brief, Zubiri attempted to designate

1,263 pilot precincts. (9 precincts were double-listed, 15 precincts were

listed as clustered precincts which turned out to be 30 individual

precincts, 2 were listed as individual precincts which turned out to be 1

clustered precinct.)

A total of 1,272 precincts were actually revised, 9 of which were non-

pilot precincts. Hence, only 1,263 pilot precincts were revised;

9 ballot boxes out of 1,263 or 0.71% had no ballots;

Post-Election Fraud in Quezon City

There were 45 precincts (out of 1,263 pilot precincts or 3.56% of the

total) with FAKE / SPURIOUS COMMON BALLOTS (common


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ballots are ballots with both Pimentel and Zubiri votes) involved in an

obvious post-election operation (done after the counting of votes but

before the revision proceedings).


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The affected precincts are:

1560A/1561A, 3094A, 3548A/3549A, 3559A, 3559B, 3566A/3567A,

3587A, 3588A/3589A, 3591A, 3593A, 3607A, 3617A, 3620A/3620B,3621A/3622A, 3638A/3640A, 3676A/3677A, 3693A/3694A,3716A/3717A, 3731A, 3752A, 3756A/3757A, 3785A, 3786A/3787B,3790A/3791A, 3796A, 3799B/3800A, 3803A/3804A, 3807A, 3809A,3817A/ 3818A, 3856A/B, 3857A/3859A, 3862A, 3878A,3894A/3895A, 3899A/3900A, 3918A/3919A, 3960A/3962A, 3979A,3992A/3993A, 3996A, 4000A, 4006A, 605A, 638A/ 640A

The general feature of this post-election fraud was the replacement of

ballots with Pimentels name on them (not accompanied by Zubiris

name) with fake ballots that now contained both the names of Pimentel

and Zubiri. This explains why, as shown in the table below, the

difference between the Physical Count and Election Return Votes of

Pimentel in these 45 QC Precincts hardly moved (only 58 votes

difference), while the Physical Count for Zubiri jumped up by a

whopping 2,102 votes for an average gain of 46.71 votes per precinct,

but in an illegal and fraudulent way!

Note that although Zubiri wanted to open some ballot boxes during the

direct testimonies of his revisor-witnesses, he avoided these Quezon

City precincts with fake ballots;

The effect of the post-election fraud in Quezon City is shown by the

table below:



PIMENTEL 2,659 2,601 -58ZUBIRI 2,084 4,186 +2,102

(component figures for the 45 QC Precincts with Fake/SpuriousCommon Ballots are found in ANNEX M)

The Revision Reports for these 45 Quezon City Precincts show the

improper, irregular, suspicious, and compromised condition of the

ballot boxes retrieved. Attached as ANNEX M-1 is the summary of


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the observations of the Head Revisors and Pimentel Revisors

concerning the involved precincts.

However, where a ballot box is found in such a condition aswould raise a reasonable suspicion that unauthorized personscould have gained unlawful access to its contents, noevidentiary value can be given to the ballots in it and the officialcount reflected in the election return must be upheld as the better and more reliable account of how and for whom theelectorate voted. (see afore-mentioned Rosal Case)

In the Rosal Case, the Supreme Court summarized the foregoing

doctrines:

(1) the ballots cannot be used to overturn the official count asreflected in the election returns unless it is first shownaffirmatively that the ballots have been preserved with a carewhich precludes the opportunity of tampering and all suspicionof change, abstraction or substitution; (2) the burden of provingthat the integrity of the ballots has been preserved in such amanner is on the protestant; (3) where a mode of preserving the ballots is enjoined by law, proof must be made of suchsubstantial compliance with the requirements of that mode aswould provide assurance that the ballots have been kept

inviolate notwithstanding slight deviations from the precisemode of achieving that end; (4) it is only when the protestanthas shown substantial compliance with the provisions of law onthe preservation of ballots that the burden of proving actualtampering or the likelihood thereof shifts to the protestee and(5) only if it appears to the satisfaction of the court or Comelecthat the integrity of the ballots has been preserved should itadopt the result as shown by the recount and not as reflected inthe election returns.

Zubiri clearly failed to discharge and, in fact, totally ignored his

burden of proving that the integrity of the ballots in these 45 Quezon

City precincts has been preserved in accordance with law;

Pimentel, although the burden of proof has notshifted to him, adopted

a pro-active stance in the best interest of justice and presented

witnesses (members of the Board of Election Inspectors) who testified

that those fake common ballots which were revised were not the same

ballots that had been read and counted by the Board of Election

Inspectors (BEI) during the election.


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The following excerpts from the transcript of stenographic notes of the

testimonies of Pimentels optional witnesses are representative of the

testimonies of rest:

o Mrs. Emelina S. Precia, Chairperson of the BEI of Precinct No.

3566A/3567A during the May 2007 national and local elections,

testified on March 22, 2010, confirming the regularity of the

processes and procedures followed by the BEI during the said

election; the peaceful, orderly, and honest actual casting,

counting, and recording of votes; the regularity and authenticity

of the ER found inside the ballot box during revision; and the

ultimate turn-over of the securely-locked precinct ballot box

with the ballots and other election paraphernalia to the proper

custodian thereof. When asked to examine the ballots which

were revised in this case, this is how she testified:

ATTY. CAMITAN:Ms. Witness, we are showing to you Pimentel

only ballots we found during revision. Will you pleasego over these ballots?

WITNESS MS. PRECIA:This is my signature at the back.

xxxATTY. CAMITAN:

We are showing to you the Common Ballots

found during revision, meaning votes for both Pimenteland Zubiri are contained in those ballots and the sameMs. Witness could you please

MS. WITNESS:No signature. [repeatedly saying this after

looking at the back of the ballots.]

xxxWITNESS MS. PRECIA:

No signature at all in the back.HEARING COMMISSIONER:

What are the exhibit numbers?

ATTY. CAMITAN:Nakalagay lang Sir, SET 1 to 51.Ms. Witness, per your observation of the ballots

please.WITNESS MS. PRECIA:

I did not miss any ballot to sign my signature,that is why I am wondering


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[TSN of March 22, 2010, 9:00 a. m., pages 4 to 9; emphasissupplied]

o Ms. Raquel Sande, Chairperson of the BEI of Precinct No.

3587A during the May 2007 national and local elections,

testified on March 22, 2010, also confirming the regularity of

the processes and procedures followed by the BEI during the

said election. When asked to examine the ballots which were

revised in this case, this is how she testified:

ATTY. CAMITAN:Your Honor, may we please ask that the

envelope for Pimentel only ballots be shown theWitness. [Handed to the witness by Mr. Denoga]

The Witness is examining four ballots, YourHonor, marked as exhibits Z1 to Z4.

ATTY. CAMITAN:Ms. Witness, there appears a signature at the

back of the ballots could you please confirm whoseinitial or signature that is.

WITNESS MS. SANDE:Sa akin po ito, RES.xxxATTY. CAMITAN:

Your Honor, may we please request that theCommon ballots this time be shown to the Witness forher to examine the same.

Ms. Witness, Common ballots marked asexhibits SET 1 to SET 16, please state your observation?

WITNESS MS. SANDE:Ano po, parang iba na po iyong pirma.

xxxWITNESS MS. SANDE:Hindi na po. Iba na po ito.

[TSN of March 22, 2010, 9:00 a. m., pages 31 to 35; emphasissupplied]

o Mrs. Daisy Santos, Chairperson of the BEI of Precinct No.


testified on March 22, 2010, also confirming the regularity ofthe processes and procedures followed by the BEI during the




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ATTY. CAMITAN:For the record, there are no more Pimentel only

ballots. There are about 40 Common ballots that wefound during revision and that is what we intend to show

the witness.xxxATTY. CAMITAN:

Part 1 yan. Ms. Witness, these are Commonballots, meaning they contain votes for Pimentel and forZubiri. I want you to go over these ballots and pleaseidentify your signatures if it appears there or not, or ifthat is your signature or not.

WITNESS MS. DAISY SANTOS:xxx Parang hindi Maam. Kasi never na

nagpatong iyong ano eh, kasi iyong stroke ko ng G

that is my middle initial, Guinto, na nakahiwalay siya ngknoti. Ito parang magkapatong na magkapatong.Pinagpatong niya iyong G at S.

xxxWITNESS MS. DAISY SANTOS:

Itong signatures na kasi never na nagpatong ang G ko atsaka iyong S. xxx Pero ito magkapatong. Eto naman 8na 8. Iyong S ko hindi naman mukhang 8.

xxxWITNESS MS. DAISY SANTOS:

xxx Nagtataka ako dito kasi never na pumirma ako

na iyong S ko naging 8. Straight iyong ano, talaganghindi ko pirma.[TSN of March 22, 2010, 9:00 a. m., pages 68 to 73; emphasissupplied]

o Ms. Emerenciana Vargas, Chairperson of the BEI of Precinct

No. 3593A during the May 2007 national and local elections,

testified on March 22, 2010, also confirming the regularity of

the processes and procedures followed by the BEI during the



ATTY. CAMITAN:Q: Ms. Witness I am showing you SET 1 to 31 of

Common Ballots part 1. Could you please tellus Ms. Witness if there is a signature on thoseballots? Also, could you please tell us if that isyour signature or not.

A: There is none.xxx


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ATTY. CAMITAN:(Part 2 of the common ballots was given to the witness)

Q: Is there a possibility for you to forget to sign any

ballot?A: No. It is impossible.Q: Okay, part 2 this time of the common ballot

(sic).A: [Witness is examining the ballots] it is not my

signature. Some are too short [meaning thestrokes]. Some of them are not my signature.

Q: Ms. Witness, again, which ballots do not containyour signature?[Witness re-examines the signature on each

ballot].

A: Not even this one because my signature is toosmall.[TSN of March 22, 2010, 1:00 p.m., pages 4 to 8; emphasissupplied]

o Ms. Rhodita R. Rivera, Chairperson of the BEI of Precinct No.


test

Documents

Memorandum on the Counter Protest Pilot Precincts (FINAL)