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The Manila Times - Caguioa the Unclear

News & Interviews
27 September 2018

By Jojo Robles | The Manila Times

GOOD, clear writing is important. It is especially important if you’re a justice of the Supreme Court seeking to rule on a contentious issue like the electoral protest against Vice President Maria Leonor Robredo.

Before yesterday, I had not read any decision, treatise or even a haiku written by Associate Justice Alfredo Caguioa, the high court member whose only claim to fame prior to landing in the Supreme Court was his being a former classmate of Noynoy Aquino, who made him magistrate. After yesterday, I don’t think I will want to do so ever again unless I really have to.

Caguioa’s ruling on the motion for reconsideration filed by Robredo insisting on a 25 percent threshold for the shading of a ballot in order for it to count is probably the worst piece of judicial writing I have ever encountered. And I’ve gone over countless orders and rulings from all sorts of courts in over 30 years as a journalist, so that’s saying a lot.

High court justices are supposed to write clearly, perceptively and even profoundly, after all. Caguioa’s magnum opus was vague, confusing and unintelligible — sometimes all of that in a single overlong paragraph or meandering sentence.

But credit Robredo and her chief lawyer, Romulo Makalintal, for seeing an excellent propaganda opportunity where others only saw imprecise and obfuscating verbiage. Robredo immediately called a press conference to proclaim that the high court, sitting as the Presidential Electoral Tribunal, had upheld her contention that only 25 percent shading was needed for a ballot to be valid — even if this was not stated (clearly or otherwise) anywhere in Caguioa’s horrible 22-page brain fart.

Robredo was so touched by her interpretation of the ruling that she likened herself to the late movie icon Fernando Poe Jr., who was famous for getting beaten up near the beginning of his films, only to win convincingly through the sheer volume of counter-punches he would throw at the various bad guys placed in his path. For two years, she declared, she felt like she was getting mauled in the protest proceedings, but she triumphed, FPJ-like, in the end.

But it was not like that at all. According to Caguioa’s turgid decision, what the PET did was to set aside the issue of shading, which can in no way be taken to mean that Robredo’s demand for a 25 percent threshold was upheld.

If anything, the tribunal granted the motion of Robredo’s rival, former senator Ferdinand Marcos Jr., upholding the 50 percent threshold, because the Commission on Elections failed to inform the PET that a new minimum had been put in place for the 2016 elections.

In one of the clearer passages of Caguioa’s ruling, he wrote: “Given that at the time of the drafting and approval of the 2018 PET Revisor’s Guide and the commencement of the revision process, Comelec had not issued any official document setting a new threshold for the 2016 elections, the Tribunal was therefore constrained to follow the fifty percent (50 percent) threshold under the 2010 PET rules.”

(I promise not to unduly anger the reader by unnecessarily quoting passages from Caguioa’s decision. But this is a key paragraph that I will be referring to again, so please bear with me.)

More important than shading thresholds to the tribunal, Caguioa ruled, was the use of election returns where there is a discrepancy in the counting and appreciation of ballots. These returns are directly produced by the vote-counting machines used in the 2016 elections in electronic and printed form; they should in no way be used as substitutes for the ballots shaded and used by voters themselves, which are the ultimate test of the validity of contested votes.

The other thing that the tribunal, through Caguioa, said was that decrypted images of digital ballots could be used in the recount — something that, like the ruling on ERs produced by the VCMs, is being hotly contested by Marcos. After all, if the ERs and digital ballots had been tampered with, as Marcos alleges, then they cannot be used as substitutes for the ballots themselves.

But the tribunal said that while it noted Marcos’ objection to the use of digital images, the former senator has not produced evidence of their integrity being compromised. Mere allegations, the ruling said huffily, are not proof.

The whole point of the ruling, I have concluded after seeking the advice of several knowledgeable sources, is that the tribunal has actually succeeded in favoring Robredo by adding yet another layer of verification — the digital images — in case of a discrepancy in the recount of the actual ballots cast. This can be taken to mean that Robredo did score a win at the tribunal, even if it was not in the matter of the shading threshold.

If you agree that Robredo’s overall strategy is to delay the recount until the end of her contested term in 2022, she has succeeded. Perhaps, in the future, the tribunal will even get to rule with finality on the shading threshold controversy, the resolution of which will take up even more time.

I end by calling the attention of those media outlets (and there are many) that reported on the matter as if Robredo’s and Makalintal’s press conference was the final word on the shading controversy. Instead of carefully wading through Caguioa’s admittedly murky writing, being careful to understand the background and nuances of the case, these mainstream outlets unthinkingly bought the vice president’s line that she had won the battle for the correct shading threshold.

It’s easy enough to say that this is due to laziness and a lack of comprehension on the part of the reporters who wrote about the issue. But if the editors and producers of these news outlets, who decide how a story is “angled” or even if it is used at all and who really should know better, deliberately misunderstood Caguioa’s ruling, then we’re all in deep manure.

The reports that Robredo won the shading threshold battle are fake news in the extreme. Just read the paragraph I quoted, if you still doubt that last statement I made.

Now, I really wonder how Robredo and her media enablers would get out of this mess that they themselves made. Or if the media will blame Caguioa for writing so badly that they had to take the word of Robredo, who is as biased a source as you can find in this case, as the tribunal’s.