Week 266: August 2 - 8, 2021

No significant developments.

After 266 weeks (or roughly 1,866 days) :

On 16 February 2021, the Supreme Court issued a Press Briefer announcing the dismissal of BBM’s election protest.  This was followed by a press conference wherein SC Public Information Office Atty. Brian Keth Hosaka also announced the dismissal of BBM's protest.  The SC spokesman told members of the media that the PET would release its written decision “in due course”.

A month later, on 19 April 2021, the Tribunal released its Decision.  The Decision was unanimous in that :

> Six (6) Justices concurred with the dismissal of the entire protest;

> Eight (8) Justices voted in the result.

The said Decision also included Separate Opinions from then Chief Justice Diosdado M. Peralta, Justice Samuel H. Gaerlan and Justice Mario V. Lopez.  A Separate Concurring Opinion was also submitted by Justice Alfredo Benjamin S. Caguioa.

On 10 May 2021, BBM filed a Motion for Reconsideration and asked the Tribunal to reconsider and set aside its Decision dismissing his election protest.  He asked the High Tribunal to conduct hearings, receive evidence and order a technical examination on the alleged “hocus pocus” of votes in the provinces of Basilan, Lanao del Sur and Maguindanao.

Below are some of the highlights of the 4 ½ year election protest :

On 5 March 2019, the PET finished the MANUAL recount of ballots in all the clustered precincts in BBM’s three (3) pilot provinces, namely Camarines Sur, Iloilo and Negros Oriental.  It took the PET 11 months to complete the MANUAL recount of the said 3 provinces [2 April 2018 to 5 March 2019].

The PET also concluded the PRELIMINARY APPRECIATION (“PA”) phase of the election protest.  During the PA stage, the parties are supposed to submit their OBJECTIONS to the ballots which were MANUALLY counted so that the PET will be able to REVIEW and RULE on the said objections.  In reality, however, this NEVER happened because on 9 September 2019, Associate Justice Caguioa SUDDENLY and UNILATERALLY released his UNOFFICIAL report to members of the media and recommended that the election protest be DISMISSED because of Rule 65 of the PET Rules.

Had BBM been ALLOWED to present his objections during the PA stage, he would have presented evidence that majority of the ballots were UNREADABLE because they were :

• wet
 covered with dried fish & garbage
 burned with cigarette butts
• had battery fluids in them
 and so much more!

When it came to the READABLE ballots, BBM’s revisors discovered that :

 majority of the ballots contained SHADINGS of 25% or less
 there were FAKE BALLOTS in the audit logs

Rule 65 states that the PET may dismiss an election protest if “upon examination of such ballots and proof, and after making reasonable allowances, the Tribunal is convinced that, taking all circumstances into account, the protestant or counter- protestant will most probably fail to make out his case”.  If the complaining party fails to prove his case, the election protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest.

On 15 October 2019, the Supreme Court (voting 11-2) released a Resolution directing the parties to submit a Memorandum on the following matters within 20 working days :

1. To give their comments on the revision report in BBM’s 3 pilot provinces, namely, Camarines SurIloilo and Negros Oriental; and

2. To explain their position on BBM’s Third Cause of Action, which is the annulment of election results in Basilan, Lanao del Sur and Maguindanao.

Since neither BBM or Robredo were allowed to participate in the “appreciation [of votes] stage [PA] the Supreme Court, on 5 November 2019 allowed the parties to photocopy the voluminous annexes (approx 16,000 pages) which formed the basis of the Caguioa report.  Invoking due process, the Supreme Court required the parties to submit their Memorandum 20 days AFTER they finished viewing and photocopying the said annexes.

On 19 December 2019, both BBM and Robredo filed their respective Memoranda.

The protest remained in limbo for almost 10 months.

After this long hiatus the PET, on 30 September 2020, directed the OSG and COMELEC to submit a report on the various anomalies that allegedly transpired in the provinces of Basilan, Lanao del Sur and Maguindanao during the 2016 elections.  The PET also sought the OSG and COMELEC’s opinion on whether or not the high Tribunal had the power to rule on the annulment of elections in the 3 ARMM provinces.  Both agencies replied in the affirmative.

Despite this, the PET dismissed the case in its entirety.

– – – – –

Listed below are the “sensitive” and important issues surrounding BBM’s protest :

1. Whether or not to apply the 25% shading threshold percentage or the 50% shading threshold percentage in the recounting of votes

Robredo’s Motion to Direct the Head Revisors to Apply the 25% threshold percentage in the revision, recount and re-appreciation of ballots

1.1 The PET initially denied Robredo’s Ex Parte Motion.

(click here to see the 10 April 2018 Resolution from the PET)

1.2 After a week, the PET required BBM and the COMELEC to comment on Robredo’s Urgent Motion for Reconsideration.

(click here to see the 24 April 2018 Resolution from the PET)

1.3 Robredo filed an Urgent Motion for Reconsideration.

(click here to see the 2 May 2018 Urgent Motion from Robredo)

1.4 BBM filed his Opposition to Robredo’s Motion for Reconsideration.  He stressed that in all the published videos of COMELEC, the voters were instructed to “fully shade” the oval when voting the candidate of their choice.  According to BBM, voters usually shade more than 50% of the ovals . . . not merely 25%.

(click here to see the 28 May 2018 Opposition from BBM)

1.5 A month later, Office of the Solicitor General filed a Manifestation stating that voters should shade at least 50% of the ballots in order for the same to be valid.

(click here to see the 6 July 2018 Manifestation from the OSG)

1.6 The PET decided to note the OSG’s Manifestation and Motion.

(click here to see the 24 July 2018 Resolution from the PET)

1.7 The COMELEC submitted a Comment saying that the 25% shading threshold was sufficient because of “optical scanning technology” :

"8. The COMELEC, in the exercise of its constitutional mandate to administer elections and decide all questions relating to elections, has decided to calibrate the automated voter counting system for the 9 May 2016 National and Local Elections to read as valid votes, marks that cover at least 25% (when seen by human eyes) of the oval for each candidate. The chosen technology – optical scanning technology – appreciates votes or non-votes according to how it is configured to that at least about 25% (when seen by human eyes) of the oval for each candidate. All election results are based on this threshold."

Despite all their instructional videos to the contrary, the COMELEC said :

"17. To reiterate, for purposes of the 09 May 2016 National and Local Elections, COMELEC, in order to ensure that votes are not wasted due to inadequate shading or that no accidental or unintended small marks are counted as votes in order to reflect the true intent of the voter, had set the ballot shading threshold at 25%."

(click here to see the 26 July 2018 Comment from the COMELEC)

Although the PET did not CATEGORICALLY decide on the 25% versus 50% shading threshold, it instructed the revisors – two months later – tojust refer to the Election Returns.  In other words, the revisors were told to base their findings on the “summarized version” indicated in the Election Returns.

1.8 On September 2018, the PET directed the Head Revisors “to refer to the election returns to verify the total number of votes as read and counted by the voting counting machines.”

(click here to see the 25 September 2018 Notice from the PET)

Note :
From day 1, BBM’s position has been as follows:  the 25% shading of ballots should not be counted.  If we legitimize 25% shading, then we are encouraging dirty politicians to put acetate paper and make dots (“tuldok system”) on the paper ballots.  When no one is looking, they will feed these “mass produced” paper ballots into the ballot boxes in order to thwart the true sentiments of the electorate.

2. What to do with the wet & unreadable ballots 

2.1 Since majority of the ballots were wet and unreadable, the PET instructed the revisors to base their findings on the "computer images" captured by the SD cards in the vote counting machines.

(click here to see the 5 June 2018 Resolution from the PET)

2.2 On June 2018, the PET said that the decrypted ballot images could be used by the revisors.

(click here to see the 26 June 2018 Resolution from the PET)

2.3 BBM filed a Strong Manifestation opposing the use of decrypted ballot images in the revision proceedings.  According to him, the decrypted ballots were not mirror images of the actual ballots because they contained SQUARES instead of OVALS.

(click here to see the 6 July 2018 Strong Manifestation from BBM)

2.4  The PET noted BBM’s Strong Manifestation but denied his Motion regarding the use of decrypted ballot images in the revision proceedings.

(click here to see the 10 July 2018 Resolution from the PET)

2.5 BBM again filed a Strong Opposition regarding the use of decrypted ballot images in the revision proceedings.

(click here to see the 19 July 2018 Strong Opposition from BBM)

2.6 The PET directed the COMELEC to comment on BBM’s strong opposition regarding the use of decrypted ballot images.

(click here to see the 24 July 2018 Resolution from the PET)

2.7 On July 2018, the PET allowed the revision of decrypted ballot images.

(click here to see the 31 July 2018 Resolution from the PET)

2.8 On August 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 14 August 2018 Resolution from the PET)

2.9 On August 2018, the COMELEC asked for an extension of time within which to file its comment.

(click here to see the 17 August 2018 Motion from the COMELEC)

2.10 On August 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the  28 August 2018 Resolution from the PET)

2.11 After BBM’s numerous protestations, the COMELEC finally filed its Comment.  According to them, “the ballot images are not faithful reproductions of the original ballots but are instead the true and genuine representation and captured images of the official ballots themselves.”.

(click here to see the 30 August 2018 Comment from the COMELEC)

2.12 On September 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 4 September 2018 Resolution from the PET)

2.13 On September 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 11 September 2018 Resolution from the PET)

2.14 On September 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 18 September 2018 Resolution from the PET)

2.15 On September 2018, BBM received a Notice from the PET denying his Strong Opposition regarding the use of decrypted ballot images.

(click here to see the 25 September 2018 Resolution from the PET)

2.16 BBM filed a Motion for partial reconsideration of the denial of his Strong Opposition.

(click here to see the 5 October 2018 Manifestation with Omnibus Motion from BBM)

2.17 On October 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 9 October 2018 Resolution from the PET)

2.18 On October 2018, the PET noted BBM's Manifestation directed Robredo and the COMELEC to comment on the same.

(click here to see the 16 October 2018 Resolution from the PET)

2.19 On October 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 16 October 2018 Resolution from the PET)

2.20 On November 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 6 November 2018 Resolution from the PET)

2.21 On November 2018, COMELEC filed a Motion requesting for an extension of time within which to file its comment.

(click here to see the 6 November 2018 Motion from the COMELEC)

2.22 On November 2018, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 13 November 2018 Resolution from the PET)

•2.23 On November 2018, BBM received Robredo's Comment and Oppostion.

(click here to see the 22 November 2018 Comment from Robredo)

2.24 The PET noted the COMELEC's Comment and required BBM to reply to the same.

(click here to see the 4 December 2018 Resolution from the PET)

2.25 On December 2018, BBM received the COMELEC's Comment saying that his contention has "no leg to stand on."

(click here to see the 5 December 2018 Comment from the COMELEC)

2.26 BBM filed his Consolidated Reply.

(click here to see the 20 December 2018 Consolidated Reply from BBM)

2.27 On January 2019, the PET again allowed the revision of the decrypted ballot images.

(click here to see the 8 January 2019 Resolution from the PET)

2.28 On January 2019, PET noted BBM's Consolidated Reply.

(click here to see the 29 January 2019 Resolution from the PET)

Note :
From day 1, BBM’s position has been as follows:  because of the presence of squares instead of ovals in the ballot images, the same cannot be considered faithful images of the original paper ballots.  Since these “decrypted” images were obviously compromised, they do not reflect the true will of the electorate.

3. COMELEC’s request to lift the Precautionary Protection Order (PPO) with respect to the Election Management System (EMS) Servers

3.1 In a Resolution dated 17 April 2018, the PET required BBM and Robredo to comment on the COMELEC’s request to erase all the data in the EMS servers.

(click here to see the 17 April 2018 Resolution from the PET)

3.2 BBM filed his Opposition to the COMELEC’s request.  He explained that the data in the EMS servers should be preserved because it contained sensitive information which could shed light on what actually transpired during the 2016 elections.

(click here to see the 25 May 2018 Opposition from BBM)

3.3 COMELEC disagreed with BBM and said they needed to erase all the data in order to prepare for the May 2019 elections.

(click here to see the 20 July 2018 Reply from the COMELEC)

3.4 On July 2018, the PET lifted the Precautionary Protection Order (PPO) on the Election Management System (EMS) servers.  As a result, Comelec was able to erase all the data in the EMS server.

(click here to see the 24 July 2018 Resolution from the PET)

Note :
The Election Management System (EMS) is the “brain” of any election system.  It is here where the ballot images are generated and where the SD cards and computers for the different provinces are programmed.

From day 1, BBM’s position has been as follows:  in order to track down any “hanky panky” conducted during the May 2016 elections,  it was important to preserve the data in the EMS.

4. BBM’s Third Cause of Action

4.1 In a Resolution dated 5 September 2017, the PET directed BBM to submit a list of witnesses for the provinces of Basilan, Lanao del Sur and Maguindanao.

(click here to see the 5 September 2017 Resolution from the PET)

4.2 BBM complied and submitted the names of 171 potential witnesses.

(click here to see the 11 September 2017 Compliance from BBM)

4.3 On 19 September 2017, the PET required BBM to “STRICTLY COMPLY with their directive that he identify his witnesses in the corresponding clustered precincts within a FINAL and NON-EXTENDIBLE period of five (5) days from notice” 

(click here to see the 19 September 2017 Resolution from the PET)

4.4 BBM complied and submitted the names of 7,356 potential witnesses.

(click here to see the 9 October 2017 Compliance from BBM)

4.5 The PET notedBBM’s Compliance.

(click here to see the 7 November 2017 Resolution from the PET)

4.6 A month later, BBM filed an Extremely Urgent Manifestation of Grave Concern because he received disturbing information from Sakur Tan, who was contesting the results in the 2016 ARMM elections.  According to Tan, the COMELEC’s technical examination revealed that 40,528 signatures and 3,295 thumbprints found on the Election Day Computerized Voter’s Lists (EDCVLs) of 508 precincts in Basilan, Lanao del Sur and Maguindanao did not match the information reflected on the Voter’s Registration Records (VRRs).  In other words, more than 80% of the signatures and thumbprints of the supposed voters in ARMM were not identical.  The revelation was based on the 25% pilot precincts chosen by Sakur Tan.

BBM informed the PET that he would use the results of the COMELEC’s technical examination as part of his evidence for his Third Cause of Action (ie: the annulment of votes for Vice President in the provinces of Basilan, Lanao del Sur and Maguindanao due to massive electoral fraud.

(click here to see the 12 December 2018 Extremely Urgent Manifestation from BBM)

4.7 Robredo opposed BBM’s Motion.

(click here to see the 18 January 2019 Counter-Manifestation from Robredo)

4.8 Robredo filed a Supplemental Manifestation opposing BBM’s Motion.

(click here to see the 25 January 2019 Supplemental Manifestation from Robredo)

4.9 The PET directed Robredo and the COMELEC to comment on BBM’s Extremely Urgent Manifestation.

(click here to see the 28 January 2019 Resolution from the PET)

4.10 On February 2019, Robredo informed the PET that she already filed her Comment and Opposition prior to the Tribunal’s Resolution directing her to comment on BBM’s urgent Motion.

(click here to see the 11 February 2019 Manifestation from Robredo)

4.11 On February 2019, the COMELEC washed its hands over the controversy by saying that the Second Division had yet to issue an Order regarding the results of Sakur Tan’s technical examination.  The COMELEC also said it was invoking the sub judice rule.

(click here to see the 13 February 2019 Manifestation from the COMELEC)

4.12 On March 2019, BBM asked the Tribunal to rule on his Extremely Urgent Manifestation with Omnibus Motion which he filed on December 2018.

(click here to see the 26 March 2019 Consiladated Reply with Urgent Motion from BBM)

4.13 It took the PET 6 months to address BBM’s Urgent Motion and when it finally did, the High Tribunal decided to defer action until such time that an initial determination has been made on the protest” in accordance with Rule 65 of the 2010 PET Rules.

(click here to see the 17 July 2019 Notice from the PET)

Note :
From day 1, BBM’s position has been as follows:  since the PET ruled that the 3 Causes of Action were separate, distinct and independent of each other, then it should have heard evidence on the 7,356 potential witnesses that BBM submitted to bolster his claim of massive electoral fraud in ARMM.  Instead, the PET merely “noted” BBM’s Compliance.  The PET should also have immediately acted on the shocking revelations of Sakur Tan’s technical examination instead of simply “deferring action” on BBM’s Urgent Motion.  The PET should have castigated the COMELEC for hiding behind the sub judice rule.  At the end of the day, it is the COMELEC’s Constitutional duty to ensure that the true will of the electorate be heard.