Comelec chief Sixto Brillantes Jr. e-mails about my report on fraud by the precinct count optical scanners (PCOS) in the 2013 senatorial election (Gotcha, 28 July 2014). The regional trial court of Gapan, Nueva Ecija, had consented to recount the senatorial votes for Christian leader, Bro. Eddie Villanueva, in three precinct clusters in General Tinio town. Done not in poll protest but to seek the truth, the manual count showed Villanueva getting more votes than inconsistent PCOS precinct tallies and municipal canvass. Brillantes’ rejoinder follows, edited for brevity:
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“The RTC decision arose from Civil Case 4378-13 of petitioners Bernardo Aranas and Arlan Esteban. They stated that many church members and followers of candidate Eddie Villanueva avowed to have voted for the latter, yet the canvassed results allegedly reflected less. They sought the recount of votes for Mr. Villanueva in Clustered Precincts 29 and 30 in Barangay Pias, and 19 in Barangay Concepcion. While (the court) claimed that the ‘Municipal Election Registrar saw no need to oppose,’ the Comelec, through Provincial Election Supervisor Panfilo Doctor and Election Officer Magpayo V. Abesamis, did file on Sept. 18, 2013, an ‘Answer with Motion to Dismiss’ primarily raising the court’s absence of jurisdiction over the matter. Disregarding such jurisdictional objections, the court concluded that, ‘Villanueva could have earned 119 votes in the Comelec official tally if the PCOS machines did an accurate count of votes cast for him.’
“While the decision may appear persuasive to a layman, I cite various points to put it in proper perspective and explain its flaws:
“First, the RTC of Gapan has neither the competence nor the authority to inquire into votes garnered by Mr. Villanueva, and to make any legal conclusion. We lawyers call this ‘jurisdiction.’ When a body is without jurisdiction, its decision has no value – mere trash.
“Under the Constitution, all questions pertaining to elections, returns, and qualifications of members of the Senate may be raised only before the Senate Electoral Tribunal (SET), composed of sitting senators and members of the Supreme Court, and not before a mere RTC.
“The suit, deceptively labeled a ‘civil case,’ is in the nature of an election protest, as it inquires into the validity of the result of the May 2013 elections in three clustered precincts, and the proclamation of the 12 elected senators. This act of Judge Celso Baguio – despite clear and timely objections by the Comelec – intrudes into the SET’s exclusive powers. The proceedings by Judge Baguio are unconstitutional, illegal, un-procedural, erroneous, and amounts to ignorance of law. We are to pursue this matter to the SC to determine administrative liability of the judge.
“Second, even if jurisdiction is conceded for argument’s sake, the next question is: how reliable was the recount conducted by the RTC?
“It must be noted at the outset that there is no rule or law authorizing a mere RTC to inquiry into votes for a senatorial candidate. If there is no rule of procedure sanctioning civil proceedings invented by Judge Baguio, then what procedure governed it or was followed? How did the court ascertain the authenticity of the ballots prior to the recount to ensure that they have not been tampered with or substituted post-election? What rules or standards on appreciation of ballots did it employ?
“The common misconception is that mere marginal variance in the result of manual recount vis-a-vis the Election Day result appearing in the returns automatically means fraud. The most common reason for such variance is human mistake in the manual appreciation of ballots.
“The PCOS are capable of reading votes with precision and accuracy, designed to count shades satisfying the threshold and disregard any shade less than that. Human eyes do not have such exactitude: in a manual recount, any shade, even if falling behind the threshold, may be honored as a valid vote, resulting to a discrepancy. Another common mistake by untrained ‘revisors’ is counting all the shades in a multiple slot without first ascertaining if votes exceeded the allowable number. For senator, a voter is allowed to vote for 12 candidates; if he voted for 13 or more, all his votes for that position are automatically not counted. Such is easy to miss in a manual recount, as ‘revisors’ may immediately count the shade without first checking if there has been an over-vote.
“In cases where the variance is too big to be attributed as mere error in human appreciation, experience at the Comelec and my own as election lawyer tell me it is probably a product of post-election manipulation. Meaning, after election, interested individuals may have tampered with the original ballots (by shading under-voted slots or putting voidable marks), for a recount to be different from the Election Day result.
“The fraudsters miss, however, one key feature of the PCOS to counter old tricks. On Election Day, each PCOS captures the images of ballots, and in encrypts them in its memory card. All the scanned ballot images are forwarded to the Comelec main office in Manila for safekeeping. These can be used to detect tampering; in ‘Chato vs. HRET’ the SC recognized printouts of scanned ballot images as the functional equivalent of paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in electoral protest. In fact, we have foiled many attempts of post-election fraud through this special feature. I am confident that in this case we can easily detect if there has been fraudulent tampering.
“For transparency and to showcase the accuracy of the PCOS, I am manifesting the Comelec’s willingness to take up this matter. We can do a joint analysis of the decision and a reexamination of ballots involved, including side-by-side comparison to corresponding images. Otherwise, the Comelec may conduct said analysis on its own with notice to interested parties. Either way, the results will be accessible to the public.
“This way, we can determine if there has been ‘election fraud’, or if this is another case of post-election fraud effected by interested parties.”
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Sen. Koko Pimentel, committee chairman for electoral processes, reportedly is to examine the contrasting results of Bro. Eddie’s PCOS and manual counts.
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General Tinio mayor Virgilio A. Bote, unopposed in the 2013 election and so had time to campaign full time for Bro. Eddie, also reacts:
“The proposed P30-billion Comelec budget for new PCOS units in the 2016 election is three times worse corruption than the Napoles pork barrel scam. The fund goes to government officials and (PCOS supplier) Smartmatic Corp. Since they know the drill, they may use another company: same dog but different collar.”
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