Motion for Reconsideration of SET Reso 07-105 (FINAL) | Burden Of Proof (Law) | Voting System

Republic of the Philippines SENATE ELECTORAL TRIBUNAL Quezon City AQUILINO L.

PIMENTEL III, Protestant/Counter-Protestee, - versus JUAN MIGUEL F. ZUBIRI, Protestee/Counter-Protestant. x----------------------x MOTION FOR RECONSIDERATION OF SET RESOLUTION NO. 07-105
COMES NOW Protestant / Counter-Protestee Pimentel (“Pimentel”), by himself, unto this Honorable Tribunal most respectfully MOVES FOR THE RECONSIDERATION of SET Resolution No. 07-105 dated June 4, 2010 (a copy of which was received on June 21, 2010), which contains the following findings, to wit: “Significantly, both Pimentel and Zubiri admitted that ballots of dubious integrity were discovered in the course of the revision proceedings in the pilot precincts of Quezon City, Manila, Batangas, and Bulacan. The Tribunal’s own examination and appreciation of the ballots resulted in a finding that more than 50% of the ballots specifically cited in the revision reports were indeed spurious. Accordingly, the presence of said bogus ballots must be considered as strong indicator that the elections in said areas was marred by irregularities. “x x x

SET CASE NO. 001 – 07

“It reasonably appears from the results of the initial revision and appreciation of the ballots and election documents in the pilot counterprotested precincts that Zubiri has a prima facie valid cause to pursue his counter-protest. Also, it was reasonably shown that the officially proclaimed results for the twelfth (12th) senatorial position in the May 14, 2007 (sic) would be affected by the disclosed anomaly. It is therefore warranted that proceedings in the remaining 75% of the counter-protested precincts be further conducted.”

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based on the following grounds: (1) The findings of this Honorable Tribunal stated in SET Resolution No.

07-105 are, with all due respect, BASELESS AND NOT SUPPORTED BY THE EVIDENCE ON RECORD; (2) The sole ground, the “standard” used by this Honorable Tribunal to

justify the continuation of the Zubiri Counter-Protest, which is the mere “presence of bogus ballots” in Quezon City, Manila, Batangas, and Bulacan, IS EXTRAORDINARILY LENIENT AND FAVORABLE TO PROTESTEE / COUNTER-PROTESTANT ZUBIRI (“Zubiri”), IS AGAINST THE SET RULES, IS AGAINST EXISTING JURISPRUDENCE, AND IS

TANTAMOUNT TO GRAVE ABUSE OF DISCRETION amounting to lack or excess of jurisdiction because this Honorable Tribunal did not even concern itself with [1] how many were these “bogus ballots” and [2] when were these “bogus ballots” introduced into the electoral system; (3) This Honorable Tribunal GRAVELY ABUSED ITS DISCRETION

amounting to lack or excess of jurisdiction in ruling that “It reasonably appears from the results of the initial revision and appreciation of the ballots and election documents in the pilot counterprotested precincts that Zubiri has a prima facie valid cause to pursue his counter-protest. Also, it was reasonably shown that the officially proclaimed results for the twelfth (12th) senatorial position in the May 14, 2007 (sic) would be affected by the disclosed anomaly.” without discussing its findings and disclosing to the parties any of the figures it used in coming up with this kind of a conclusion; and (4) There is DENIAL OF DUE PROCESS as three Senators who voted in

favor of SET Resolution No. 07-105, namely, Senators Angara, Legarda, and Lapid, each lacked the cold neutrality of an impartial judge, which is a requirement of due process, having previously entered into an alliance with Zubiri, where their political plans were inextricably linked to the continued membership of Zubiri in the Senate, as discussed in Pimentel’s Manifestation

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with Motion for Disqualification of Senators Angara, Legarda, and Lapid dated June 24, 2010.

DISCUSSION

(1) THE FINDINGS OF THIS HONORABLE TRIBUNAL STATED IN SET RESOLUTION NO. 07-105 ARE, WITH ALL DUE RESPECT, BASELESS AND NOT SUPPORTED BY THE EVIDENCE ON RECORD; 1. Because of the sheer size of the Zubiri Counter-Protest, with 73,265

counter-protested precincts and 18,316 in pilot precincts alone, there is a need to put things in proper perspective. 2. First, the Counter-Protest is Zubiri’s Protest. In other words, Zubiri is

the Protestant in this stage of the proceedings. Second, the burden of proving the allegations in the Counter-Protest is with Zubiri. Third, the burden of complying with the other requirements laid down by jurisprudence is also with Zubiri at this stage of the proceedings. 3. Indeed, there were spurious ballots encountered during the revision

proceedings in the Zubiri Counter-Protest but, contrary to the clever use and positioning of the word “significantly” in the challenged Resolution, to wit: “Significantly, both Pimentel and Zubiri admitted that ballots of dubious integrity were discovered in the course of the revision proceedings in the pilot precincts of Quezon City, Manila, Batangas, and Bulacan” (emphasis supplied; page 7 of Resolution No. 07-105) it is precisely Pimentel’s most humble submission that the discovery of spurious ballots during the revision proceedings in the Zubiri Counter-Protest is INSIGNIFICANT, considering that: (1) These spurious ballots were so few in number (only 17,481 ballots according to footnote 1 of the Dissenting Opinion of Justice Carpio) relative to the great number of ballots revised (counted official ballots),
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which totals 2,488,117; (attached as ANNEX “A” is Pimentel’s computation of the total number of counted official ballots) (2) These spurious ballots were introduced into the electoral system through post-election operation and therefore did not affect the “officially-proclaimed results of the contested election”; (3) These spurious ballots were introduced into the electoral system precisely to “strengthen” the sham and baseless Counter-Protest of Zubiri by giving it the element of “irregularity”. The introduction of these spurious ballots was therefore meant to benefit Zubiri and/or to damage Pimentel. 4. When this Honorable Tribunal stated the following “The Tribunal’s

own examination and appreciation of the ballots resulted in a finding that more than 50% of the ballots specifically cited in the revision reports were indeed spurious,” what “revision reports” was this Honorable Tribunal referring to? How come this Honorable Tribunal did not disclose or list down the precincts and/or revision reports where spurious ballots were “specifically cited”? It is Pimentel’s most humble submission that such finding of this Honorable Tribunal is utterly baseless. 5. However way we look at the data, we could not find any ratio or

percentage amounting to “50%” or even close to it! Just consider the following: • In Quezon City:
o

According to the Dissenting Opinion of Justice Carpio, only 50 precincts out of 1,265 pilot precincts yielded fake ballots. 1 50 out of 1,265 is 3.95%. Hence, in terms of the number of pilot precincts in Quezon City which yielded fake ballots, the percentage is only 3.95%. Only 2,017 ballots were found to be fake out of a total of 167,664 ballots. 2,017 out of 167,664 is 1.20%. Hence, in terms of the number of fake ballots found in

In Pimentel’s Memorandum, our figure was 45 precincts out of 1,263 pilot precincts or 3.56%. (See page 36 thereof.)
1

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the pilot precincts of Quezon City, the percentage is only 1.20% of the total ballots counted in the precincts; o In Quezon City, Zubiri did not make any objection based on “spurious ballots”, as the spurious ballots in Quezon City turned out to be “common ballots”. (Pimentel’s revisors, on the other hand, manifested that the “common ballots” are fake. Under SET Rules, the parties could not object to “common ballots”.)
o

The general feature of the post-election fraud perpetrated in Quezon City was the replacement of the genuine ballots that contained only Pimentel’s name on them (not accompanied by Zubiri’s name) with fake ballots that now contained both the names of Pimentel and Zubiri. This explains why the difference between the Physical Count and Election Return Votes of Pimentel in these Quezon City Precincts hardly moved (only 58 votes difference), while the Physical Count for Zubiri jumped up by a whopping 2,102 votes for an average gain of 46.71 votes per precinct (but in an illegal and fraudulent way)!

o

However the figures in the ERs and/or the Tally Boards show the regularity of the elections;

o

This post-election fraud was meant to benefit Zubiri and to prejudice Pimentel because, first scenario, if the spurious ballots were to be upheld as genuine and be counted in favor of the parties, then Zubiri would be gaining 2,102 votes (that is, his physical count of votes would be 2,102 votes more than his total votes per ER while Pimentel would be simply retaining his total votes per ER), and, second scenario, if the spurious ballots were to be adjudged as spurious and not be counted at all, then Zubiri would be retaining his total votes per ER while Pimentel would
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be deducted votes equal to the number of fake common ballots (because Pimentel’s physical count of votes would now be lesser than his total votes per ER). At any rate, it was certainly the intention of the post-election operators that the presence of bogus ballots would help the cause of a sham and baseless protest like Zubiri’s Counter-Protest by giving it an

“irregularity” to argue on; o As stated in the Memorandum, only 3.56% of the pilot precincts in Quezon City were affected by this post-election operation (45 out of 1,263); o The BEIs’ testimonies established that the fake ballots in Quezon City were introduced after the May 14, 2007 elections and therefore did not affect the officially proclaimed results of the said elections. • In Manila:
o

According to the Dissenting Opinion of Justice Carpio, only 61 out of 1,186 pilot precincts yielded fake ballots.2 61 out of 1,186 is 5.14%. Hence, in terms of the number of pilot precincts in Manila which yielded fake ballots, the percentage is only 5.14%. Only 3,406 ballots were found to be fake out of a total of 152,238 ballots. 3,406 out of 152,238 is 2.24%. Hence, in terms of the number of fake ballots found in the pilot precincts of Manila, the percentage is only 2.24% of the total ballots counted in the precincts;

o However, an examination of the Revision Reports from the City of Manila reveals that Zubiri made a total of only 2,558

In Pimentel’s Memorandum, our figure was 51 precincts out of 1,174 pilot precincts or 4.34%. (See page 50 thereof.)
2

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objections based on the “spuriousness of the ballot” out of 8,312 total official counted ballots in the precincts cited below:
MANILA Precinct Numbers Where There are Zubiri Objections Based on "Spurious Ballots" 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 2 0 2 1 2 2 2 3 2 4 2 5 2 6 2 7 2 8 1A/B 9A 18B 114A/114C 115A 116B 118B/C 127A/B 130A/B 135A 135D 141A/142B 143A 146A 174B/C 209A 220A 222A/B 223A/B 235B/C 258B 272B/273A 274A 278A/279C 279A 292A 293B/C 311A/B Total Number of Counted Official Ballots 184 95 98 147 111 113 182 185 179 107 116 170 119 109 154 110 124 177 207 189 123 207 112 196 127 118 190 197 Number of Actual Objections Made By Zubiri Based on "Spurious Ballots" 54 38 31 59 23 32 68 49 68 30 30 56 36 46 34 38 31 52 50 59 55 67 31 34 27 31 69 40 Exhibit Numbers of Objected Ballots (“SB”) Z1-Z54 Z1-Z38 Z1-Z31 Z1-Z59 Z1-Z23 Z1-Z32 Z1-Z68 Z1-Z49 Z1-Z68 Z1-Z30 Z1-Z30 Z1-Z56 Z1-Z36 Z1-Z46 Z1-Z34 Z1-Z38 Z1-Z31 Z1-Z52 Z1-Z50 Z1-Z59 Z1-Z55 Z1-Z67 Z1-Z31 Z1-Z34 Z1-Z27 Z1-Z31 Z1-Z69 Z1-Z6, Z20-Z24, Z27-Z55

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2 9 3 0 3 1 3 2 3 3 3 4 3 5 3 6 3 7 3 8 3 9 4 0 4 1 4 2 4 3 4 4 4 5 4 6 4 7 4 8 4 9 5 0 5 1 5 2 5 3 5 4 5 5 5 6 5 7

331A 331B/332B 347A/B 348B 374A/B 379A 381H 382L 384A 385B 385F 386A/B 388A/B 421A/421C 423A/C 429A/B 430A/B 431A/B 475A/B 506A 506B 513A 514A/B 521A 522A/B 525A 531A 532A/B 535B/537C

145 212 213 104 163 120 101 118 123 75 73 144 188 178 128 172 177 203 179 121 102 118 151 105 127 122 125 204 175 8,312

46 47 64 23 51 43 32 34 43 31 31 40 65 68 44 63 72 67 62 48 29 30 51 26 31 37 34 53 55 2,558

Z1-Z46 Z1-Z47 Z1-Z64 Z1-Z23 Z1-Z51 Z1-Z43 Z1-Z32 Z1-Z34 Z1-Z43 Z1-Z31 Z1-Z31 Z1-Z40 Z1-Z65 Z1-Z68 Z1-Z44 Z1-Z63 Z1-Z72 Z1-Z67 Z1-Z62 Z1-Z48 Z1-Z29 Z1-Z23, Z25-Z31 Z1-Z51 Z1-Z26 Z1-Z31 Z1-Z37 Z1-Z34 Z1-Z53 Z1-Z18, Z20-Z56

o

The general feature of the post-election fraud perpetrated in the Manila pilot precincts was that genuine ballots containing
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Pimentel’s name only (without Zubiri’s name) were withdrawn and replaced with fake ballots with Pimentel’s name on it. And in most cases, the number of replacement fake ballots did not match the number of genuine ballots withdrawn. Hence, the physical count of ballots with Pimentel’s name on them is woefully low, just a fraction of Pimentel’s votes as reflected in the ER and the Tally Boards.
o

In other words, the number of substituted fake ballots did not match the original number of Pimentel ballots. However the figures in the ERs and/or the Tally Boards show the regularity of the elections;

o

This post-election fraud was meant to prejudice Pimentel to make it appear that fake ballots were counted in Pimentel’s favor. At any rate, it was certainly the intention of the postelection operators that the presence of bogus ballots would help the cause of a sham and baseless protest like Zubiri’s CounterProtest by giving it an “irregularity” to argue on;

o As stated in the Memorandum, only 4.34% of the pilot precincts in Manila were affected by this post-election operation (51 out of 1,174); o The BEIs’ testimonies established that the fake ballots in Manila were introduced after the May 14, 2007 elections and therefore did not affect the officially proclaimed results of the said elections. • In Batangas:
o

According to the Dissenting Opinion of Justice Carpio, only 98 precincts out of 1,443 pilot precincts yielded fake ballots. 98 out of 1,443 is only 6.79%. Hence, in terms of the number of pilot
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precincts in Batangas which yielded fake ballots, the percentage is only 6.79%. Only 5,896 ballots were found to be fake out of a total of 215,041 ballots. 5,896 out of 215,041 is 2.74%. Hence, in terms of the number of fake ballots found in the pilot precincts of Batangas, the percentage is only 2.74% of the total ballots counted in the precincts; o But the Revision Reports reveal that Zubiri objected to “spurious ballots” only in three Municipalities of Batangas, namely (1) Balete, (2) Lemery, and (3) Sto. Tomas, out of 34 Municipalities; o In Balete, Batangas, Zubiri made a total of only 187 objections based on the “spuriousness of the ballot” out of 2,674 total official counted ballots in the precincts cited below:
Balete, PROVINCE OF BATANGAS Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 10A/B 191 4 14A/B 18A/B 20A 22A/B 29A 30A/B 33A/B 38A 40A 43A/B 47A 49A/B 50A/B 51A Total 196 198 159 189 144 170 187 165 143 236 150 186 213 147 2,674 17 35 12 17 14 25 2 6 4 21 7 6 14 3 187

Exhibit Numbers of Objected Ballots (“SB”) Z23-Z26 Z1-Z17 Z1-Z35 Z1-Z12 Z1-Z17 Z1-Z14 Z1-Z25 Z5-Z6 Z1-Z6 Z1-Z4 Z17-Z30, Z31-Z37 Z50-Z56 Z1-Z6 Z1-Z14 Z1-Z3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

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o In Lemery, Batangas, Zubiri made a total of only 528 objections based on the “spuriousness of the ballot” out of 5,794 total official counted ballots in the precincts cited below:
Lemery, PROVINCE OF BATANGAS Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 1A/2A 150 18 4A/B 7A 12A/B 35A/B 45A/B 49A/B 52A/B 54A/B 66A/B 69A/B 72A 72B 76A/B 80A 87A/B 95B 99A/B 102A/B 104A/B 110A 134A 134B 140A/B 142A/B 147A/B 148A 153A/B 160A/B 170A/B 174A/B 184A/B 189A/B 197A 203A Total 152 77 165 163 186 211 198 171 195 170 91 66 210 148 228 89 185 221 158 151 147 92 204 148 220 149 169 216 201 193 223 206 150 91 5,794 14 8 13 16 14 16 18 11 6 14 9 6 13 22 38 3 6 16 24 9 1 3 6 10 28 20 30 24 37 28 21 12 6 8 528

Exhibit Numbers of Objected Ballots (“SB”) Z1-Z18 Z1-Z14 Z1-Z8 Z1-Z13 Z1-Z16 Z1-Z14 Z1-Z16 Z1-Z18 Z63-Z73 Z1-Z6 Z1-Z14 Z9-Z17 Z1-Z6 Z1-Z13 Z1-Z22 Z1-Z38 Z1-Z3 Z1-Z6 Z1-Z16 Z1-Z17, Z44-Z50 Z1-Z7, Z23-Z24 Z16 Z1-Z3 Z1-Z6 Z1-Z11 Z1-Z28 Z1-Z20 Z1-Z30 Z1-Z24 Z1-Z37 Z1-Z28 Z1-Z21 Z1-Z12 Z1-Z6 Z1-Z8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

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o In Sto. Tomas, Batangas, Zubiri made a total of only 813 objections based on the “spuriousness of the ballot” out of 7,691 total official counted ballots in the precincts cited below:
Sto. Tomas, PROVINCE OF BATANGAS Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 1A/B 210 22 4A/B 6A 8A 10A 12A 14A 25A/B 28A/B 37A 43A 46A/B 48A 59A 60A/B 68A 74A 76A 86A 92A/B 98A/B 101A 110A 119A 123A 131A 138A/B 142A 148A 154A 159A/B 171A/B 172A 184A 167 158 131 156 142 169 144 196 133 114 168 118 140 171 139 147 157 172 162 218 148 157 155 111 143 203 127 110 115 177 188 153 127 18 36 15 23 19 29 16 22 23 15 12 13 19 12 22 19 11 19 14 13 11 36 8 7 7 12 7 12 9 6 37 9 17

Exhibit Numbers of Objected Ballots (“SB”) Z1-Z22 Z1-Z6, Z39-Z50 Z1-Z19, Z33-Z35, Z51-Z64 Z1-Z15 Z1-Z23 Z1-Z19 Z1-Z29 Z1-Z16 Z1-Z22 Z1-Z23 Z1-Z15 Z17-Z28 Z1-Z13 Z1-Z18, Z34 Z1-Z12 Z1-Z22 Z1-Z19 Z1-Z10, Z41 Z10-Z28 Z1-Z14 Z1-Z13 Z1-Z11 Z1-Z36 Z1-Z8 Z1-Z7 Z1-Z7 Z1-Z12 Z1-Z7 Z1-Z12 Z1-Z2, Z20-Z26 Z1-Z6 Z1-Z37 Z15-Z23 Z1-Z17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34

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35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51

189A 198A 203A 210A 216A 220A/B 224A 233A 238A 243A 250A 257A 260A 262A 264A/B 266A/B 268A/B Total

149 131 167 125 102 170 114 129 119 130 144 121 159 140 205 167 193 7,691

16 21 10 10 5 19 8 22 10 13 17 14 11 10 21 28 8 813

Z1-Z6, Z15-Z24 Z1-Z21 Z1-Z10 Z1-Z10 Z1-Z2, Z26-Z28 Z1-Z19 Z1-Z8 Z1-Z22 Z1-Z10 Z1-Z13 Z1-Z17 Z1-Z14 Z1-Z11 Z1-Z10 Z1-Z21 Z1-Z28 Z1-Z8

o Parenthetically, Zubiri’s lead counsel herein, Atty. George Garcia is/was also the counsel of Edwin Ermita in his election protest against Jose Antonio Leviste involving the position of Vice-Governor of Batangas Province which was litigated before the Comelec. • In Bulacan:
o

According to the Dissenting Opinion of Justice Carpio, only 35 precincts out of 1,781 pilot precincts yielded fake ballots. 35 out of 1,781 is only 1.97%. Hence, in terms of the number of pilot precincts in Bulacan which yielded fake ballots, the percentage is only 1.97%. Only 6,162 ballots were found to be fake out of a total of 260,458 ballots. 6,162 out of 260,458 is 2.37%. Hence, in terms of the number of fake ballots found in the pilot precincts of Batangas, the percentage is only 2.37% of the total ballots counted in the precincts;

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o But the Revision Reports reveal that Zubiri objected to “spurious ballots” only in seven Cities / Municipalities of Bulacan, namely (1) Bocaue, (2) Marilao, (3) Meycauayan, (4) Norzagaray, (5) Pulilan, (6) San Jose del Monte, and (7) San Rafael, out of 24 Cities / Municipalities; o In Bocaue, Bulacan, Zubiri made a total of only 61 objections based on the “spuriousness of the ballot” out of 1,102 total official counted ballots in the precincts cited below:
Bocaue, PROVINCE OF BULACAN Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 88A/89A 188 12 111A 143A 194A (199) 208B/209A 218A/219A 261A/262A Total 136 126 133 145 176 198 1,102 7 2 16 5 7 12 61

Exhibit Numbers of Objected Ballots (“SB”) Z1-Z12 Z1-Z7 Z1-Z2 Z7-Z22 Z1-Z5 Z1-Z7 Z1-Z6, Z16-Z21

1 2 3 4 5 6 7

o In Marilao, Bulacan, Zubiri made a total of only 8 objections based on the “spuriousness of the ballot” out of 232 total official counted ballots in the precincts cited below:
Marilao, PROVINCE OF BULACAN Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 67A/68A 171 7 217C/D Total 61 232 1 8

Exhibit Numbers of Objected Ballots (“SB”) Z56-Z62 Z15

1 2

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o In Meycauayan, Bulacan, Zubiri made a total of only 16 objections based on the “spuriousness of the ballot” out of 55 total official counted ballots in the precinct cited below:
Meycauayan, PROVINCE OF BULACAN Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 505B/D 55 16 Total 55 16

Exhibit Numbers of Objected Ballots (“SB”) Z1-Z16

1

o In Norzagaray, Bulacan, Zubiri made a total of only 96 objections based on the “spuriousness of the ballot” out of 1,191 total official counted ballots in the precincts cited below:
Norzagaray, PROVINCE OF BULACAN Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 53A 128 18 62A 77A 90C/91A 110A 160A 219A/B 246A/247A Total 140 152 167 138 143 138 185 1,191 4 15 9 14 5 15 16 96

Exhibit Numbers of Objected Ballots (“SB”) Z1-Z18 Z1-Z4 Z1-Z15 Z1-Z9, Z16-Z41 Z1-Z14, Z27-Z41 Z1-Z5 Z1-Z15 Z1-Z16

1 2 3 4 5 6 7 8

o In Pulilan, Bulacan, Zubiri made a total of only 1 objection based on the “spuriousness of the ballot” out of 164 total official counted ballots in the precinct cited below:
Pulilan, PROVINCE OF BULACAN Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 142A/143A 164 1

Exhibit Numbers of Objected Ballots (“SB”) Z79

1

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Total

164

1

o In San Jose del Monte, Bulacan, Zubiri made a total of only 308 objections based on the “spuriousness of the ballot” out of 1,847 total official counted ballots in the precincts cited below:
San Jose Del Monte, PROVINCE OF BULACAN Number of Precinct Exhibit Total Actual Numbers Where Numbers Number of Objections There are Zubiri of Counted Made By Zubiri Objections Based Objected Official Based on on "Spurious Ballots Ballots "Spurious Ballots" (“SB”) Ballots" Z1-Z10, 1A/B 156 13 Z34-Z36 Z1-Z29, 69A 116 30 Z30 Z1-Z36, 96A 133 48 Z57-Z68 187A 91 9 Z1-Z9 296A/B 301B 379C 402A 414A/B 453A/B 573A 591A 614A 636B 653B Total 166 131 111 108 152 143 108 113 117 130 72 1,847 24 25 5 12 35 37 13 13 14 29 1 308 Z1-Z24 Z1-Z25 Z1-Z5 Z1-Z12 Z1-Z35 Z1-Z37 Z1-Z13 Z1-Z13 Z1-Z14 Z1-Z19 Z1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

o In San Rafael, Bulacan, Zubiri made a total of only 113 objections based on the “spuriousness of the ballot” out of 1,982 total official counted ballots in the precincts cited below:
San Rafael, PROVINCE OF BULACAN Number of Precinct Total Actual Numbers Where Number of Objections There are Zubiri Counted Made By Zubiri Objections Based Official Based on on "Spurious Ballots "Spurious Ballots" Ballots" 1A/B 204 3 18A 30A 72A 110A 142A 164 148 172 138 121 3 21 8 9 4

Exhibit Numbers of Objected Ballots (“SB”) Z1-Z3 Z1-Z3 Z1-Z21 Z1-Z8 Z1-Z9 Z1-Z4

1 2 3 4 5 6

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7 8 9 10 11 12

146A/B 162A/B 173A/B 198A 205A 215A Total

177 203 191 156 141 167 1,982

11 20 12 11 6 5 113

Z1-Z11 Z1-Z20 Z1-Z12 Z1-Z11 Z1-Z6 Z1-Z5

o Parenthetically, Zubiri’s lead counsel herein, Atty. George Garcia is/was also the counsel of Roberto Pagdanganan in his election protest against Joselito Mendoza involving the position of Governor of Bulacan Province which was litigated before the Comelec.

In short, as culled from the Dissenting Opinion of Justice Carpio, only 244 precincts out of a total of 18,316 pilot precincts, or merely 1.33% of the total number of pilot precincts yielded fake ballots;

Furthermore, according to the Dissenting Opinion of Justice Carpio, only 17,481 ballots were found to be fake out of a total of 795,401 ballots counted in Quezon City, Manila, Batangas, and Bulacan or merely 2.19% of the total number of ballots counted in these four areas;

As a final statistic, according to the Dissenting Opinion of Justice Carpio, only 17,481 ballots were found to be fake. 17,481 ballots out of a total of 2,488,117 ballots revised in the Counter-Protest’s 18,316 pilot precincts, is merely 0.70% of the total number of ballots revised. 0.70% means that less than one ballot was found to be fake for every one hundred ballots revised;

6.

We repeat: there is no ratio or percentage amounting to “50%” or even

close to it no matter how we look at the data. 7. The members of this Honorable Tribunal, both old and new, are urged

to review the evidence, specifically the Revision Reports.

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8.

What shall the review reveal? That Zubiri made only 4,689 objections

based on the “spuriousness of the ballot”, to wit: Number of Precincts Where There are Zubiri Objections Based on “Spurious Ballot” 58 101 46 TOTAL Number of Actual Objections Made by Zubiri Based on “Spurious Ballot” 2,558 1,528 603 4,689

Manila Batangas Bulacan

[NOTE: Quezon City is not included in the table above for the reason already stated earlier (no objections were made to “common ballots”).] 9. Does the Tribunal ruling mean that the Tribunal is already satisfied that

massive irregularity affected the officially proclaimed results for the 12th senatorial position in the May 14, 2007 elections just because more than 50% of the 4,689 objections made by Zubiri based on “spurious ballots” turned out to be indeed spurious? 10. Such conclusion that “more than 50% of the ballots specifically cited in

the revision reports were indeed spurious” is therefore utterly baseless and not supported by the evidence, and, more important, completely insignificant, as “the ballots specifically cited in the revision reports” could not number more than 4,689 ballots. 11. wit: “It reasonably appears from the results of the initial revision and appreciation of the ballots and election documents in the pilot counterprotested precincts that Zubiri has a prima facie valid cause to pursue his counter-protest. Also, it was reasonably shown that the officially proclaimed results for the twelfth (12th) senatorial position in the May 14, 2007 (sic) would be affected by the disclosed anomaly.” (See page 8 of SET Resolution No. 07-105.) without stating (1) how Zubiri was able to prove “a prima facie valid cause to pursue his counter-protest”, (2) how the officially proclaimed results for the twelfth (12th) senatorial position in the May 14, 2007 elections was or would be affected by the disclosed anomaly, which anomaly presumably is the “presence of bogus ballots”, and
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SET Resolution No. 07-105 also makes the following conclusion, to

(3) the facts and figures upon which such a conclusion was based. Why are the facts and figures not disclosed to the parties, especially to Protestant / Counter-Protestee Pimentel, who is the party to be most aggrieved by this baseless conclusion made by this Honorable Tribunal? 12. It is most respectfully submitted that the above conclusion is just as

utterly baseless and not supported by the evidence as the “finding that more than 50% of the ballots specifically cited in the revision reports were indeed spurious” discussed above.

(2) THE SOLE GROUND, THE “STANDARD” USED BY THIS HONORABLE TRIBUNAL TO JUSTIFY THE CONTINUATION OF THE ZUBIRI COUNTER-PROTEST, WHICH IS THE MERE “PRESENCE OF BOGUS BALLOTS” IN QUEZON CITY, MANILA, BATANGAS, AND BULACAN, IS EXTRAORDINARILY LENIENT AND FAVORABLE TO PROTESTEE / COUNTERPROTESTANT ZUBIRI, IS AGAINST THE SET RULES, IS AGAINST EXISTING JURISPRUDENCE, AND IS TANTAMOUNT TO GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION BECAUSE THIS HONORABLE TRIBUNAL DID NOT EVEN CONCERN ITSELF WITH [1] HOW MANY WERE THESE “BOGUS BALLOTS” AND [2] WHEN WERE THESE “BOGUS BALLOTS” INTRODUCED INTO THE ELECTORAL SYSTEM; 1. The standard used by this Honorable Tribunal to justify the

continuation of proceedings in the 75% remainder of the Zubiri Counter-Protest is the mere “presence of bogus ballots” in Quezon City, Manila, Batangas, and Bulacan. 2. It is the most humble submission of Pimentel that the said standard

used by this Honorable Tribunal is extraordinarily lenient and favorable to Zubiri, is

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against the SET Rules as well as existing jurisprudence, and is tantamount to grave abuse of discretion. 3. The pertinent portion of Rule 79 of the Revised Rules of the Senate

Electoral Tribunal reads: “xxx Upon the termination of such initial revision and reception of evidence, and based upon what reasonably appears therefrom as affecting or not the officially-proclaimed results of the contested election, the Tribunal may dismiss the protest, any counter-protest or cross-protest, as the case may be, or all of them, or require the parties to show cause why these should not be dismissed without further proceedings.” (Emphasis supplied) 4. It is the most humble submission of Pimentel that implicit from Rule 79

quoted above are the following principles:
(1) Not all types of frauds or irregularities encountered during such

initial revision and reception of evidence would justify the continuation of proceedings in the remaining 75% of the Protest or Counter-Protest;
(2) The frauds or irregularities must be proven (not merely alleged)

by the Protestant in the Protest and the Counter-Protestant in the Counter-Protest in order to justify the continuation of the Protest or Counter-Protest, as the case may be; (3) And these proven frauds or irregularities must be massive enough to have affected the officially-proclaimed results of the contested election; 5. Finding mere “presence of bogus ballots” a good enough reason to

allow the continuation of the proceedings in the Zubiri Counter-Protest fails to satisfy the above requirements of Rule 79 of the SET Rules. 6. Furthermore, the case of ROSAL vs. COMELEC and IMPERIAL, G.

R. Nos. 168253 and 172741, March 16, 2007, extensively cited by Pimentel in his Memorandum (see pages 24 to 25 thereof), requires Zubiri to prove “whether the ballots found in the ballot boxes during the revision proceedings were the same ballots
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that were cast and counted in the elections”, a burden which Zubiri conveniently chose to ignore. 7. The “Pilot stage” is not a summary hearing, it is already full blown

trial. In fact, Zubiri was given an initial 84 days to present his evidence and an additional 52 days to further present evidence after he wasted the first 84 days by refusing to present evidence and boycotting the hearings. After wasting time, Zubiri went through the motions of presenting witnesses by presenting 42 witnesses, 40 of whom were in his payroll as either revision supervisor or revisor and who were simply going to repeat what they had already stated in their revision reports (thereby totally wasting time again!). The other two (2) witnesses (one a private supplier of paper to the Comelec and the other a government employee) were not even “eye-witnesses” to any kind of fraud. The private supplier of paper to the Comelec (Henry Young) was made to identify a few spurious ballots. The government employee’s testimony (Gracia Enriquez) was even cut short by Zubiri’s counsel when the witness insisted on the genuineness of ballots which Zubiri’s counsel thought were spurious. 8. In short, even when he was given 136 days to present his evidence to

prove his allegations in the Counter-Protest, Zubiri never attempted to comply with the doctrines in the case of ROSAL vs. COMELEC and IMPERIAL that “We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution; (2) the burden of proving that the integrity of the ballots has been preserved in such a manner is on the protestant; (3) where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end; (4) it is only when the protestant has shown substantial compliance with the provisions of law on the preservation of ballots that the burden of proving actual tampering or the likelihood thereof shifts to the protestee and (5) only if it appears to the satisfaction of the court or Comelec that the integrity of the ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the election returns.” (See page 24 of Pimentel’s Memorandum.)

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9.

Zubiri has no evidence at all and depends entirely on the appreciation

of manipulated substituted ballots, introduced into the electoral system through a post-election operation, and two of the areas mentioned in SET Resolution No. 07-105 (Batangas and Bulacan) involved local election protests where Zubiri’s lead counsel is/was also the lawyer of the protestants in the said local election protests. 10. Zubiri is one such lucky Protestant (in his Counter-Protest) and Atty.

George Garcia one such lucky election lawyer if all they have to do is to show an “irregularity” in the pilot precinct stage and their remaining 75% protested precincts shall already be allowed to proceed. No election is perfect. Not even the recently concluded first automated elections in our country. How much more a manual one? And if a whopping 18,316 pilot precincts are opened and revised, for sure, an “irregularity” will be uncovered. 11. But is the discovery of spurious ballots really an irregularity massive

enough to have affected the officially-proclaimed results of the contested election?
a)

In the first place, is the presence of these spurious ballots truly

an irregularity? Zubiri, although the burden was upon him, did not even attempt to present evidence that these spurious ballots were the very same ballots actually cast by the voters and counted by the BEIs in the May 14, 2007 elections. On the other hand, there is overwhelming evidence that these were introduced into the electoral system after the voting and counting, by way of a post-election operation. Since these were introduced into the electoral system after the counting, then definitely the spurious ballots did not affect the officially-proclaimed results of the contested election. But the more important question to ask is: Why was Zubiri relieved of his obligation to prove that the ballots revised were the same ballots cast by the voters and counted by the BEIs?

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b)

In the second place, is the presence of 17,481 spurious ballots

massive enough to have the potential to change the outcome of this Protest? (We have taken our figure from the Dissenting Opinion because the Majority Opinion does not disclose any figure.) 17,481 spurious ballots out of a total of 795,401 contested ballots in Quezon City, Manila, Batangas, and Bulacan is a mere 2.19%! 17,481 spurious ballots out of a total of 2,488,117 revised ballots in the entire 18,316 pilot precincts is a mere 0.70%!
i)

In contrast, Pimentel, in the Main Protest, already led Zubiri by 103,810 votes from Pimentel’s 664 pilot precincts alone, and by 257,401 votes after the revision of all of Pimentel’s 2,658 protested precincts!

c)

In the third place, since the spurious ballots were placed inside

the ballot boxes in a post-election operation, these ballots were not the same ones counted and therefore did not affect in any way the officially-proclaimed results of the May 14, 2007 senatorial elections. i) The members of this Honorable Tribunal, both old and new, are invited to note the “Comments and

Observations” in the Revision Reports covering the Quezon City and Manila precincts, where the following are stated: “no outer and inner metal seals”, “inner metal seal was attached but appears to have been forcibly opened”, “envelope for counted official ballots is almost torn apart in its bottom and upper part and its paper seal re-pasted”, “keys did not match with padlocks”, “inner metal seal attached but unlocked”, “inner metal seal was locked but suspiciously tampered by an adhesive”, “left hinge of the box was detached”, “inner metal seal
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unsealed”, “both metal seals unlocked”, “envelope for valid ballots unsealed”, “metal seals appear to have been sealed with clear adhesive glue”, “ballot box inner metal seal was reattached by adhesive”, “ballot box outer metal seal is glued to relock”, “envelope for counted official ballots is re-pasted and partly torn at the bottom”, “outer and inner metal seals were both attached but unsealed”, “flap of the envelope for counted official ballots was torn on the left side”, “evidence of dried glue/paste on the surface and side of paper seal of the envelope for counted official ballots”, “upper and lower portion of the envelope for counted official ballots partly destroyed”, etc. (See also Annexes “M-1” and “KK-1” of Pimentel’s Memorandum); ii) The ballots from Batangas and Bulacan did not arrive at the SET in their original ballot boxes because these had been previously revised at the Comelec in the election protests involving Batangas and Bulacan where Zubiri’s lead counsel, Atty. George Garcia, is/was also the counsel for both protestants therein. 12. The lowering of the standard of proof to “mere presence of bogus

ballots” in order to justify the continuation of proceedings in Zubiri’s Counter-Protest (for the remaining 75% counter-protested precincts) demonstrates the manifest partiality of this Honorable Tribunal towards Protestee / Counter-Protestant Zubiri. 13. Zubiri did not even lift a finger to try to prove the allegations in his

Counter-Protest, yet, he gets the go-signal to proceed with the rest of his counterprotested precincts, merely on the basis of the presence of bogus ballots in Quezon

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City, Manila, Batangas, and Bulacan. Such a baseless, arbitrary, and whimsical Decision amounts to grave abuse of discretion. 14. On the contrary, the evidence shows that further proceedings in the

Zubiri Counter-Protest are not warranted.

(3) THIS HONORABLE TRIBUNAL GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RULING THAT “IT REASONABLY APPEARS FROM THE RESULTS OF THE INITIAL REVISION AND APPRECIATION OF THE BALLOTS AND ELECTION DOCUMENTS IN THE PILOT COUNTERPROTESTED PRECINCTS THAT ZUBIRI HAS A PRIMA FACIE VALID CAUSE TO PURSUE HIS COUNTER-PROTEST. ALSO, IT WAS REASONABLY SHOWN THAT THE OFFICIALLY PROCLAIMED RESULTS FOR THE TWELFTH (12TH) SENATORIAL POSITION IN THE MAY 14, 2007 (SIC) WOULD BE AFFECTED BY THE DISCLOSED ANOMALY.” WITHOUT DISCUSSING ITS FINDINGS AND DISCLOSING TO THE PARTIES ANY OF THE FIGURES IT USED IN COMING UP WITH THIS KIND OF A CONCLUSION; 1. Again, this Honorable Tribunal makes a sweeping conclusion without

substantiating it by facts and/or figures. 2. Due process requires that the parties should be apprised of the basis for

such an important conclusion. 3. What “results” did this Honorable Tribunal take into account before

concluding that “Zubiri has a prima facie valid cause to pursue his Counter-Protest”? And what did “reasonably appear” from the said “results”?

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4.

Also, what “disclosed anomaly” “reasonably showed” that the officially

proclaimed results for the twelfth (12th) senatorial position in the May 14, 2007 elections would be affected? And how or to what extent was the officially proclaimed results supposed to be affected? 5. How was this Honorable Tribunal able to come up with this kind of a

conclusion without even stating the number of “bogus ballots” supposed to have been discovered? 6. Why did this Honorable Tribunal put so much importance on the

presence of bogus ballots when there is no evidence, since Zubiri chose to ignore his burden, that these spurious ballots were the very same ballots actually cast by the voters and counted by the BEIs in the May 14, 2007 elections? (On the other hand, there is evidence to show that these spurious ballots were the product of post-election fraud.) 7. Furthermore, according to the Dissenting Opinion, “The fake ballots do

not necessarily translate into a net recovery in favor of either Pimentel or Zubiri, as such ballots could reflect votes for either Pimentel or Zubiri or both.” 8. Why should the mere presence of fake ballots in Bulacan and Batangas

prejudice Pimentel and/or benefit Zubiri, when the protagonists in the local election protests involving these areas were all the party-mates or allies of Zubiri, not Pimentel? Attached as ANNEX “B” is a certified true copy of the Certificate of Candidacy for Governor (of Bulacan) of Joselito Mendoza showing his party to be “KAMPI”; ANNEX “C” is a certified true copy of the Certificate of Candidacy for Governor (of Bulacan) of Roberto Pagdanganan showing his party to be “LAKASChristian Muslim Democrats (LAKAS-CMD)”; ANNEX “D” is a certified true copy of the Certificate of Candidacy for Vice-Governor (of Batangas) of Jose Antonio Leviste showing his party to be “Kabalikat ng Malayang Pilipino”; ANNEX “E” is a certified true copy of the Certificate of Candidacy for Vice-Governor (of Batangas) of Edwin Ermita showing his party to be “LAKAS-CMD”.
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9.

The results of the election in these precincts where fake ballots were

found could still be established from the figures in the Election Returns and Tally Boards, which generally match, proving the regularity of the election. (And at the same time further proving the post-election nature of the fraud.) 10. Zubiri’s rate of recovery of votes from his 18,316 pilot precincts, is less

than one vote per precinct, more accurately, 0.66 average vote recovery per precinct. But that rate is even before the legitimate claims of Pimentel are considered. And Pimentel has strong legitimate claims to votes not physically counted, totaling 12,915 votes claimed, as discussed in his Memorandum on pages 26 to 32 and in the corresponding annexes. 11. Contrast the above Zubiri rate of recovery of votes with Pimentel’s

(taken from the Main Protest): 156.34 average vote recovery per precinct from Pimentel’s 664 pilot precincts, and 99.64 average vote recovery per precinct from Pimentel’s entire 2,658 protested precincts! 12. In terms of vote recovery (physical count minus ER votes), from his

18,316 pilot precincts, Zubiri was able to recover 11,948 votes (again, before the legitimate claims of Pimentel are considered). In contrast, from Pimentel’s 664 pilot precincts, he was able to recover 103,810 votes. 13. From Pimentel’s entire 2,658 protested precincts, he was able to

recover 257,401 votes. Since the 18,316 pilot precincts are already the “best evidence” of the fraud pleaded by Zubiri in his Counter-Protest, his 75% remaining precincts 3 (numbering 52,291, that is, 70,607 minus 18,316) are therefore not expected to exceed the vote recovery rate of the pilot precincts. Hence, Zubiri’s remaining 52,291 precincts could only be expected to yield him a maximum recovery of 34,110 4, assuming that these remaining non-pilot precincts should prove to be as “good” as his pilot precincts, which would definitely not be the case. Not exactly 75% because Zubiri’s 18,316 pilot precincts was computed from (25% of) the total of Zubiri’s 70,607 new counter-protested precincts and the 2,658 precincts protested in the Main Protest which Zubiri also counter-protested. 4 Computed as follows: 52,291 divided by 18,316 then multiplied by 11,948.
3

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14.

Given the above figures, it is indeed very difficult to believe that there

were “results” seen by this Honorable Tribunal that convinced it “that Zubiri has a prima facie valid cause to pursue his counter-protest”. 15. What is clear is that the results of the 25% pilot precincts of Zubiri

show an improbability for Zubiri to overcome Pimentel’s tremendous lead established in his Main Protest. (Since Zubiri’s total number of counter-protested precincts comprise already 1/3 of the total number of precincts in the country that functioned during the May 14, 2007 elections, and Zubiri’s projected recovery [before claims] from all his counter-protested precincts is only a maximum of 46,058 votes [11,948 plus 34,110] while Pimentel already leads Zubiri by 257,401 votes, even if Zubiri were to open all the ballots boxes in the entire country, a 100% recount of the entire country’s 220 thousand plus precincts, duplicating the function of the Comelec and the BEIs, still Zubiri cannot and will not be able to overcome Pimentel’s tremendous lead established from only 2,658 precincts.)

(4) THERE IS DENIAL OF DUE PROCESS AS THREE SENATORS WHO VOTED IN FAVOR OF SET RESOLUTION NO. 07-105, NAMELY, SENATORS ANGARA, LEGARDA, AND LAPID, EACH LACKED THE COLD NEUTRALITY OF AN IMPARTIAL JUDGE, WHICH IS A REQUIREMENT OF DUE PROCESS, HAVING PREVIOUSLY ENTERED INTO AN ALLIANCE WITH ZUBIRI, WHERE THEIR POLITICAL PLANS WERE INEXTRICABLY LINKED TO THE CONTINUED MEMBERSHIP OF ZUBIRI IN THE SENATE. 1. As stated in Pimentel’s “Manifestation with Motion for

Disqualification of Senators Angara, Legarda, and Lapid” dated June 24, 2010, there is “UNITY OF INTEREST AMONG SENATORS ANGARA, LEGARDA, AND LAPID AND PROTESTEE / COUNTER – PROTESTANT ZUBIRI THAT IS

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TANTAMOUNT TO INABILITY ON THE PART OF SENATORS ANGARA, LEGARDA, AND LAPID TO OBSERVE AND MAINTAIN THE COLD NEUTRALITY OF AN IMPARTIAL JUDGE”. The requirement of cold neutrality of an impartial judge is a requirement of due process. 2. Attached as ANNEX “F” is a photocopy of a news report in the May

17, 2010 issue of the Philippine Daily Inquirer, entitled “Magnificent 5 may swing vote for Senate head” by Michael Lim Ubac, which has the following entry: “The emerging power bloc in the Senate is composed of Majority Leader Juan Miguel Zubiri, Edgardo Angara, Loren Legarda, Ramon Revilla Jr., and Lito Lapid, who is hanging on in the 11th place in the senatorial races. Zubiri blurted out the phrase ‘Magnificent 5’ when asked about the name of their group. xxx ‘We’re

one bloc’, Zubiri told the INQUIRER the other day, vote as one’.” [emphasis supplied]

stressing that they ‘will 3.

It is clear that Protestee / Counter-Protestant Zubiri has found an

ingenious way to make his continued membership in the Senate indispensable to the attainment of the political plans of SET members SENATORS ANGARA, LEGARDA, and LAPID, his fellow members of the “Magnificent 5” bloc. 4. It is most respectfully submitted that the six (6) Senator-Members of

the SET, although they are politicians, must nonetheless think, act, and behave like Judges. 5. “Judicial Conduct requires that judges should avoid impropriety and the

appearance of impropriety in all activities. This means that a judge should always show, in the discharge of his judicial functions, ‘the cold neutrality of an impartial judge,’ which is a requirement of due process. The time honored rule is that a public official whose duty is to apply the law and dispense justice, xxx, should not only be
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impartial, independent and honest but should be believed and perceived to be impartial, independent and honest. xxx For due process of law requires a hearing before an impartial and disinterested tribunal and every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” (Agpalo, Legal and Judicial Ethics, Eighth Edition, 2009, pages 611 to 612.) 6. “A judge whose duty is to apply the law and dispense justice ‘should

not only be impartial, independent and honest but should be perceived to be impartial, independent and honest’ as well. Like Caesar’s wife, a judge must not only be pure but above suspicion. His private as well as official conduct must be free from all appearances of impropriety. Fraternizing with litigants tarnishes this appearance.” (Agpalo, Legal and Judicial Ethics, Eighth Edition, 2009, page 611; emphasis supplied.)

LAST WORD

Protestant / Counter-Protestee Pimentel came to this Honorable Tribunal seeking Justice. It therefore comes as a shock to him that a sham, baseless Counter-Protest like Zubiri’s would be allowed to proceed simply because fake ballots were discovered upon the opening of ballot boxes without regard as to the number of these fake ballots and as to when these fake ballots were introduced into the electoral system and as to whether their presence frustrated the will of the electorate. This case has been pending for almost three years now. Zubiri is simply relying on the presence of tampered substituted ballots perpetrated through a postelection operation in order to prolong the Protestant / Counter-Protestee’s agony and at the same time prolong his unjustified stay in office. But “Justice delayed is justice denied!”

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Zubiri did not even lift a finger to prove his allegations in the Counter-Protest. It is obvious that his plan is simply TO DELAY THE PROTEST. This is the second part of that old scheme of electoral cheats, the “GRAB THE PROCLAMATION, DELAY THE PROTEST” strategy. Since the 18,316 pilot precincts were Zubiri’s “best precincts” to prove the allegations of fraud he has made to justify his gargantuan Counter-Protest, and they proved nothing, he should not be allowed to “promise” to prove his allegations in the remaining 75% of his Counter-Protest, for if the “best 25% precincts” proved to be an utter waste of time, then the remaining “ordinary 75%” of the counter-protested precincts would definitely prove not only to be another waste of time but a criminal waste of time, money, and resources. IN SHORT, ZUBIRI UTTERLY FAILED TO PROVE BY CLEAR, CREDIBLE, SUBSTANTIAL, AND CONVINCING EVIDENCE THAT THE CONDUCT OF THE MAY 14, 2007 SENATORIAL ELECTIONS IN THE AREAS COVERED BY HIS COUNTER-PROTEST WAS TAINTED BY FRAUD AND IRREGULARITIES THAT FRUSTRATED THE WILL OF THE ELECTORATE. The truth is as simple as that. And since for close to three long years, Zubiri has wrongfully and illegally occupied a public office, which is a public trust, it is about time for this Honorable Tribunal to immediately correct the situation and give effect to the true will of the Filipino People as expressed during the May 14, 2007 senatorial elections.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed that the Motion for Reconsideration of SET Resolution No. 07-105 dated June 4, 2010 be granted and another Resolution be issued (1) DISMISSING THE ENTIRE COUNTER-PROTEST OF PROTESTEE / COUNTER-PROTESTANT ZUBIRI, for

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failure to prove by convincing evidence, through his designated pilot precincts, that the conduct of the May 14, 2007 senatorial elections in the areas covered by Protestee / Counter-Protestant Zubiri’s Counter-Protest was tainted by fraud and irregularities that frustrated the will of the electorate, and (2) RESOLVING this case immediately on the basis of the Main Protest, and, as a consequence thereof, that JUDGMENT BE RENDERED DECLARING PROTESTANT / COUNTERPROTESTEE PIMENTEL AS THE RIGHTFUL AND PROPER TWELFTH (12TH) WINNING SENATORIAL CANDIDATE IN THE 14 MAY 2007 ELECTIONS in lieu of Protestee / Counter-Protestant Zubiri. Other reliefs just and equitable under the premises are likewise prayed for. San Juan City for Quezon City; July 1, 2010.

ATTY. AQUILINO L. PIMENTEL III Unit 2106, Atlanta Center Bldg. Annapolis St., Greenhills San Juan City, Metro Manila Roll of Attorneys No. 37248 IBP Lifetime Member No. 05048 PTR No. 3273440; Jan. 12, 2010; Marikina MCLE Compliance No. III-0011434

Copy furnished by registered mail: Atty. George Erwin M. Garcia Counsel for Protestee/Counter-Protestant Zubiri Ground Floor, LAIKO Bldg. Cabildo St., Intramuros, Manila EXPLANATION Due to lack of time and manpower resources, the undersigned was forced to furnish the above-named counsel a copy of the foregoing Motion for Reconsideration by registered mail.

ATTY. AQUILINO L. PIMENTEL III

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