The Manila Times : Judicial truth vs truth in election protests

17 March 2022

By Antonio Contreras | The Manila Times

IN a government ruled by laws, the final arbiter of disputes is the judiciary. However, while courts rule on the basis of facts, and while testimonies are executed on an oath that only the truth but nothing but the truth would be said, it is not entirely correct that what comes out of judicial proceedings is the absolute truth. Courts could not rule on the entirety of facts, but only on those that pass the requirements of admissibility, materiality and relevance in accordance with the rules of court.

Evidence is offered ideally to establish the truth. But court rules are structured in such a way that what is established is not actual truth, but what can be referred to as judicial or legal truth. Evidence has to be offered first before it can be accepted, and it should pass technical requirements for it to be admissible. Evidence that is obtained illegally or in violation of established procedure, even if true and factual, is not admissible. Evidence from a tainted witness, whether by incapacity or by malicious motive, may not be given weight even if true. Personal knowledge is important and this makes it hard to prove a fact even if it exists if there are no witnesses willing to testify.

For example, a person known to be a drug pusher may be set free if the bag containing the merchandise has been separated from his possession in transit since it raises reasonable doubt. The legal truth is that the person is not proven to be a drug pusher, even if the actual truth is that he is. A person can get away with murder in the absence of credible witnesses and proof beyond reasonable doubt. A witness with a poor eyesight, compounded by a darkened scene of the crime, are enough to render judicial or legal truth to diverge from actual truth.

The case of electoral protests can perfectly illustrate a situation where judicial or legal truth may not necessarily coincide with actual truth. The rule for protests is for the protestant to identify pilot areas or precincts on which to conduct a physical examination of the ballots. If there is a substantial recovery, then a much wider recount is ordered.

This system is fraught with the risk of a protestant misidentifying the pilot areas. This creates a scenario where the establishment of whether fraud has occurred is no longer a function solely of its existence, but is now also dependent on the correct judgment of the protestant on which areas or precincts to start with. In the US, recounts are done on all precincts, where the element of the protestant erring in identifying the pilot areas is eliminated. In our system, it is possible that actual fraud, even if true, may not be established simply because the protestant committed an error by identifying the wrong pilot areas.

What is even more insidious is the fact that the physical act of inspecting the ballots is focused only on establishing the sufficiency of the markings, or of whether they are properly shaded or not. However, what escapes scrutiny are the actions that may have led to clearly marked but fraudulent ballots. This is the case when these are pre-shaded even prior to the election day. Thus, the truth of the fraud will not be revealed since the method relies merely on physical inspection of ballots as to sufficiency of markings, without any forensic examination of the similarity in the pattern of shading.

It is in this context that while the Supreme Court, sitting as the Presidential Electoral Tribunal, has dismissed the electoral protest of former senator Ferdinand Marcos Jr. against Vice President Maria Leonor Robredo, and while I can respect it to the extent that it settled a dispute with finality, I continue to reserve my right to disagree to the extent that it did not settle the entirety of the actual truth.

What it established was the legal truth that Marcos Jr. did not substantially recover enough votes in the three pilot areas he identified. In fact, based on the recount, Robredo even gained additional votes. But since the three pilot areas are not statistically derived samples of the entire population of precincts, such conclusion may be a legal or judicial one, but not necessarily a scientific one.

In addition, the ruling did not include a judicial determination on the other claims made by Marcos Jr. in relation to his other causes of action, particularly on the allegations about the election anomalies in the then Autonomous Region in Muslim Mindanao (ARMM). These include alleged incidents of massive pre-shading of ballots and of other election anomalies, the footprints for which were evident in allegedly fraudulent election returns bearing identical signatures despite being from different areas whose locations are significantly far apart.

This further draws our attention to the fact that our rules on electoral protests need serious re-examination in light of the fact that with the automation of elections, that fraud is also now digitized. Manual recounting of ballots bearing shaded ovals instead of handwritten names is unreliable to detect whether the shades are authentic or fraudulent and manufactured simply because it is based on mere inspection using eyesight.

It is also about time that we adopt expedited and state-funded automatic and full recounts in extremely close contests, particularly those with margins that are less than a particular percent of the total votes cast. This is to lift the financial burden on protesting candidates who no longer have to wait until their terms are almost over for them to be proclaimed as winners. A complete and full recount in all precincts, and not just for pilot areas, coupled with the conduct of physical and digital forensic examination not only of physical ballots but all documents and digital procedures, can ensure that legal or judicial truth will approximate as close as possible the actual truth in any election controversy.