As part of my daily morning routine, I turned my laptop on early this morning and checked the news in the internet . What greeted me was the Inquirer online headline about the exposés of police operatives about their involvement in the switching of election returns (ERs) at the Batasang Pambansa complex in 2005. (See http://newsinfo.inquirer.net/31533/%E2%80%98we-switched-ers-for-gloria-arroyo%E2%80%99)

The switching was intended to make sure that when the returns are used in the then pending election protest of Ferdinando Poe Jr. (FPJ) against Gloria Macapagal Arroyo (GMA) before the Presidential Electoral Tribunal (the Supreme Court), the results as proclaimed or certified by the National Board of Canvassers (Congress) in the 2004 presidential election would be affirmed.

This nefarious practice is known among election law practitioners (lawyers and ballot revisors) as “post election operation.” This involves post election tampering of election documents, which are used as evidence in pending election cases to ensure favorable decision by the tribunal hearing the case. It could be used to benefit either the protestee or respondent or the protestant.  It is believed that the practice have been resorted to in many local contests as well.

Anyway, as events unfolded, the ERs were never used as FPJ’s protest was dismissed because of his untimely passing away. What could have been the result of the protests has been the subject of endless speculations.

Recently, and with a new administration in power, initiatives are being made to revisit and investigate what really happened in 2004. While there is a general consensus that those who were responsible for what was believed to be a fraudulent election should be held accountable, there are also  those who would want to know, just for the sake of “correcting history” or putting an “asterisk” or a “footnote” in our history books, who really won in that election.

Tampering a single ballot affecting a single vote is as reprehensible as tampering returns and canvass certificates affecting a million votes. Election cheating in what ever form or magnitude is an assault on people’s sovereignty and the perpetrators should all be held accountable. This is true whether or not cheating affects the results of the election.

Having proven election fraud however does not necessarily lead to a conclusion that the cheated candidate is the true winner in an election. Even if the cheating candidate would be disqualified or be booted out of office, the cheated candidate could not necessarily be said to have obtained the mandate of the people.

The election winner or the true choice of the people, under  our system, is determined by finding out who obtained the highest number of valid votes and this can only be done by the count of  each and every vote cast. The primary count is done at the precinct level and the results are summarized in documents using ERs and canvass certificate (COCs) at the various canvassing levels. The proclamation of winners are based on the presumed correct count of all the valid votes.

A candidate who claims that the vote count was incorrect or anomalous and that if a correct tally is made he or she would end up having the highest number of valid votes can initiate an Election Protest. A protest case involves the identification of questioned votes, leaving the uncontested ones as conclusively valid votes. The tribunal or court will then evaluate the objections on the contested votes and rule to either admit them as valid or reject them as invalid. The votes adjudicated to be valid will then be added to the uncontested votes, while those found to be invalid will be subtracted. The net result of the count of the valid votes is the election result and will determine who actually won. This same principle applies whether elections are automated or manual.

Ballots need not be the sole evidence for an election protest. ERs and COCs can also be used  as primary evidence if protest issues involve wrongful or fraudulent summarizing or tallying of results at the canvass levels, rather than erroneous or fraudulent vote appreciation and count at the precinct level. But similarly, the decision will have to be on the basis of how much vote are added and/or subtracted to come up with the final election result.

Of course, election fraud can be discovered along the way. In fact,the  grounds most used for invalidating votes under the manual write-in voting system are those that involve multiple ballots having been written on by one and the same person, or a single ballot written on by more than one person. There are also invalidations based on ballot markings. These are unquestionably election fraud. They should merit criminal prosecution against the perpetrators, regardless of the results of the election protest. But the ultimate outcome of a protest case should be to determine who actually obtained the highest number of valid votes, independent of the criminal proceedings.

I fully agree and support the efforts of COMELEC and the Department of Justice to investigate the election fraud and anomalies that happened in the 2004 and 2007 elections. The legal issue of prescription aside, the perpetrators of the crimes, including possibly GMA, should be held accountable if only to help make sure that the same would serve as a fraud deterrence in future election.

I also somewhat agree, the expenditure of public funds aside, that determining the true winner of the 2004 election might be a good policy and is good for our history . But care should be taken in any effort along this line. All votes cast must be considered. I am not saying that all votes cast in 2004 should be recounted or re tallied, but there has to be a process by which questionable votes can be evaluated through careful examination of election documents. Votes that are not questioned are to be presumed valid. There should be a process similar to an election contest, although the rigors of revision and vote appreciation maybe dispensed with. Any other manner of investigation might just result to mere anecdotal results that will have no more than propaganda value. Extrapolation as a basis for making a conclusion as to the  true will of the people will not be credible and can only be a waste of of taxpayers money if undertaken using public funds.

Finally, regardless of where these initiatives will eventually lead to, I believe that citizens vigilance in monitoring elections, which we Filipinos are good at and known for, should continuously be pursued relentlessly in future elections, whether they be automated or manual. This should include monitoring adjudication of election contests after election. This is to make sure that election fraud and anomalies are minimized, if not, outrightly prevented. We should learn from the lessons of the past and surely the experience in the 2004 and 2007 elections are good source of election education for all of us.

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