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REPUBLIC OF THE PHILIPPINES SENATE ELECTORAL TRIBUNAL ELECTORAL TRIBUNAL BUILDING COMMONWEALTH AVENUE, QUEZON CITY

AQUILINO L. PIMENTEL III, Protestant, - versus -

SET Case No. 001-07

JUAN MIGUEL F. ZUBIRI, Protestee. x--------------------x

REPLY TO ANSWER – and – ANSWER TO COUNTER-PROTEST Protestant, AQUILINO L. PIMENTEL III (“Pimentel”), by counsel, respectfully states: a.

By Way of Reply to Answer 1.

First off, protestant Pimentel herein clarifies that the

“presumptive lead” of Zubiri over Pimentel to the tune of 19,292 votes (mentioned in paragraph number 4, on page 5 of Zubiri’s Answer) is, as it has turned out, not only “presumptive” but also “incorrect”. The election results of the town of Sumisip, Basilan, and five (5) precincts of Akbar, Basilan were wrongly tabulated by the National Board of Canvassers (“NBC”), to the prejudice of Pimentel, to wit: 1.1. Based on Senatorial Canvass Report No. 30 (by Rank), the parties’ ARMM totals are 332,100 for Pimentel and 519,225 for Zubiri. (Annex “D”, Election Protest) Pimentel will show in the course of the instant proceedings that the actual


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ARMM totals based on the canvassed documents should be 336,360 for Pimentel and 522,217 for Zubiri. 1.2. Based on the official count, therefore, which is erroneous, Zubiri’s ARMM vote-lead over Pimentel is 187,125. The correct lead, however, is 185,857. Under such a corrected figure, Pimentel would post a net gain of 1,268 votes. This means that Zubiri’s presumptive lead over Zubiri is only 18,024 votes.

2.

Citing the pendency of Pimentel’s petition before the

Supreme Court, G.R. No. 178413. protestee Zubiri takes issue on the viability of the instant petition as well as of Pimentel’s petition itself with the Supreme Court. 3.

To be sure, protestee Zubiri filed a Manifestation With

Motion To Dismiss dated 17 July 2007 in aforesaid Supreme Court case which Pimentel is opposing. Pimentel firmly takes the position that this Election Protest can co-exist with the pending Supreme Court, G.R. No. 178413, because the issues are different. Hence, Pimentel also takes the position that this Election Protest can proceed full-speed ahead. 4.

There were two (2) Petitions filed before the Supreme

Court, namely, G.R. Nos. 178168 and 178413. 4.1. In G.R. No. 178168, Pimentel questioned the procedure followed by the NBC in generating the vote figures from

Maguindanao.

Pimentel’s

application

for

temporary

restraining order (“TRO”) to stop the inclusion of the Maguindanao results in the national canvass was, however, denied by the


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Supreme Court (Annex “A”, Petition).

The Petition was

subsequently withdrawn by Pimentel, and granted by the Supreme Court. Hence, no decision or ruling was rendered on the merits. ONLY THE APPLICATION FOR THE PROVISIONAL REMEDY OF THE TRO WAS DENIED. 4.2. In G.R. No. 178413, Pimentel questioned the denial of due process committed by the NBC and its agent, the Special Provincial Board of Canvassers (“SPBOC”) of Maguindanao against Pimentel by adopting a “no questions policy” when it came to the canvassing of Maguindanao election results. Pimentel’s prayer for TRO to stop the proclamation of the 12th and last winning senator pending the disposition of the petition was also denied. Said Petition is still pending. There has been no decision or ruling yet on the merits. ONLY THE APPLICATION FOR THE PROVISIONAL REMEDY OF THE TRO HAS BEEN DENIED AS OF THIS WRITING.

5.

In both cases, it is wrong for Zubiri to claim that “the

protestant was denied relief because he failed to present proof to validate his complaints.”

Nevertheless, the issues are different. In

this Election Protest, it is the accuracy of the vote count, hence, the legality or correctness of the proclamation of the 12th and last winner, which is at issue. The failure of protestant Pimentel to get relief from the NBC is expected since, as averred in the Election Protest, the NBC has been part of the fraud perpetrated against protestant


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Pimentel in order to ensure the proclamation of protestee Zubiri as the 12th and last winning senator in the 14 May 2007 elections. 6.

Protestee Zubiri proudly proclaims that “in all his political

outings, [he has] won the seat he aspired for.” Thank God for the 14 May 2007 elections. Now we know why. A candidate who needs the assistance of the Commission on Elections (“COMELEC”) from Election Officers to the NBC, as well as of “COMMANDEERED VOTES” in order to overtake the legitimate 12th placer by a measly 18,000 plus votes should not be proud of such an “achievement” no matter how expensive it might have been! 6.1. There is no such thing as “COMMAND VOTES”. The voters in the protested areas with abnormally high voters’ turn-out rates did not come out in droves in order to vote. How are the transportation systems in these areas? In these areas, Zubiri claims that the local candidates aligned with Team Unity had no opponents. Then why should the people come out to give all-out support to allegedly unopposed local candidates who no longer needed their all-out support? The people in the protested areas would never come out in droves to vote for national candidates like senators! 6.2. So the people did not come out as the commander had wished. But there was no need to because the commander had “command election and other officials” who accomplished the “command votes” results.


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6.3. But still, those who have cornered most of these socalled “command votes” have nothing to be proud of because they are contributors to the erosion of the democratic foundations of these areas as well as of the entire country.

7.

Re: Maguindanao – Zubiri claims that the “names and

signatures written on the spaces for their names and signatures were not disowned by the members of the Municipal Boards of Canvassers who were present during the canvass, effectually establishing that the documents were duly executed by the personnel assigned to serve as canvassers in each of said municipalities.” (pages 10-11, Answer) 7.1. The presence of people during the special provincial “canvassing” in Shariff Aguak, Maguindanao, was useless. No questions could be asked of them, including their names and if they are indeed election officers or members of the MBOCs. For all we know, the people present therein could have simply been onlookers, complete strangers to the election proceedings, who were not interested in disowning any signature, theirs as well as anybody else’s! 7.2. The special provincial “canvassing” in Shariff Aguak, Maguindanao, was completely useless, given the “no questions policy”. Since all the documents were already in Manila as well as the parties, their counsels, and the members themselves of the SPBOC, then why was the activity even held in Shariff Aguak?

8.

Zubiri also takes issue on the alleged lack of cause of

action and deficiency in substance of the Election Protest. Zubiri is


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asking about “the what, the who, the where, the when and the how of the anomalous acts” pleaded in the Election Protest. 9.

Pimentel wonders how Zubiri went over the averments of

the Election Protest. A focused reading of the Election Protest would disclose the clear averments of fraud constitutive of proper grounds for an election protest.

Pimentel’s chief complaint are “the

manufactured, padded, fraudulent, altered and distorted and illegal vote totals which are not reflective of the true results of voting and counting in the protested precincts”.

(p. 2, Election

Protest) Clear and definite badges of fraud and other circumstances reflective of such manufactured, padded, fraudulent, altered, distorted and illegal canvassed results were outlined or presented in the Election Protest. In plain terms, the votes, as canvassed, either at the local or national level, do not reflect or represent the true sovereign will.

10.

The manufacturing, padding, shaving and falsification of

votes provide the what element of the protest. The where and the when elements are inferrable from the material allegations of the Election Protest.

Such illegal acts of manufacturing, padding,

shaving and falsification of votes are canvassed-related, either at the local or national level, or both.

And, given the nature of the

anomalies complained of, the who question is immaterial as it is unnecessary.

Manufacturing, fabrication and manipulation of the

canvassed results, particularly in the case of the Maguindanao MCOCs, mostly copy 2 or copy for the wall, are most likely the handiwork of unknown, faceless operators, who executed their work


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in connivance or conspiracy with, or even direct participation of, the canvassing boards concerned. 11.

Verily, protestee Zubiri’s attack against the sufficiency in

substance of the Election Protest deserves no consideration. The Election Protest is sufficient in both form and substance. It specifies the precincts subject thereof. It particularizes as it sets forth facts, data, statistics and circumstances reflective of the manufactured or fraudulent canvassed results in the protested areas, which favored protestee Zubiri and prejudiced protestant Pimentel.

A judicial

recount or revision of ballots and review or examination of election documents, principally, the election returns, as prayed for by Pimentel, will reveal the true and correct results in the protested areas.

b.

By Way of Answer to Counter-Protest 12.

Protestant Pimentel specifically denies the enumerated

“[A]cts and omissions unfairly favoring Pimentel to the prejudice of Zubiri” alleged to have been committed in a total of 73,265 precincts cutting across 10 provinces and 17 cities and the precincts covered by Pimentel’s protest itself, as presented in the paragraphs found in pages 22 to 45, inclusive. The purported allegations of fraud therein are self-serving, speculative and completely unfounded, as they are without factual anchor. 13.

Easily a cause for worderment, if not amusement, is the

fact that Zubiri dared counter-protest the official results in the various cities and municipalities of Metro Manila!

His common complaint

relative to the Metro Manila results is that administration candidates,


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including Zubiri, barely made it to the magic 12 in most of the Metro Manila areas.

But, of course!

Metro Manila is, traditionally and

habitually, an opposition bailiwick. With ready access to information and events of political import, or significance, the Metro Manila electorate was at a most distinct position to pass judgment on the acceptability, worthiness and achievements of the senatorial candidates.

The verdict was a resounding rejection of the

administration candidates.

No fair or reasonable mind would accept

Zubiri’s suppositions of “statistically improbable” or “fraudulent” senatorial results in Metro Manila and other counter-protested areas. 14.

Zubiri’s underlying but unstated theory is that if he did not

fall within the top 12 winning senatorial candidates, then he must have been cheated! Such is a ridiculous theory. And reveals the conceit of a person spoiled with generous servings of so-called “command votes”. In areas which Zubiri himself labels as “independent-minded” and “intelligent”, he loses. Doesn’t he get the point? 15.

The sheer number of the precincts subject of Zubiri’s

counter-protest – a total of 73,265 precincts (70,607 new precincts as well as the originally protested 2,658 precincts) – is mind-boggling, bordering on the absurd or preposterous. Given such high number of counter-protested precincts, then Zubiri ought to be the “actual protestant”. 15.1. Zubiri questions the election results in 73,265 precincts which is about one-third (1/3) of the entire country (total


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of 224,682 clustered precincts). If the election, under which he has been proclaimed elected, was marred by fraud to such a massive extent, then why did Zubiri accept his alleged “mandate” from such fraudulent elections? 15.2.

By counter-protesting 1/3 of the country, it is

OBVIOUS that Zubiri, the one enjoying the contested office, is involved in a DELAY-THE-PROTEST strategy! Which strategy speaks volumes on the lack of substance, integrity and credibility of his counter-protest. The massive scope of the counter-protest even smacks of bad faith.

16.

Zubiri’s confusion or DELAY-THE-PROTEST strategy

also reveals itself in his adoption of the originally the protested 2,658 precincts. According to Zubiri: “xxx Protestee therefore intends to show, that the votes credited to protestant and to protestee in the canvass proceedings by the National Board of Canvassers truthfully pertains to each of them. In the event therefore that protestant withdraws protested precincts from judicial recount, protestee shall, by way of this counter-protest pursue said course of action based on the irregularities and fraud cited in pages 43 to 44 hereof.” (emphasis supplied; p. 45, Answer) 16.1. Pages 43 to 44 mention deliberate misreading, mistallying, misappreciation, unlawful counting of marked ballots, intentional dagdag-bawas, which are all fraudulent acts.

So,

which is which? Are the results in the originally protested 2,658 precincts truthful or the results of intentional fraudulent acts?


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PRAYER WHEREFORE, it is respectfully prayed that the Election Protest be given due course and the Counter-Protest be dismissed. Other reliefs, just and equitable, under the premises are likewise prayed for. Quezon City, 23 August 2007. DE LIMA LAW FIRM Lead Counsel for Protestant Aquilino L. Pimentel III 131 Panay Avenue, South Triangle 1103 Quezon City By: LEILA M. DE LIMA PTR No. 8438426; 1/04/2007; Quezon City IBP No. 568943; 1/04/2007; Camarines Sur Roll of Attorneys No. 34328 - and -

ATTY. AQUILINO L. PIMENTEL III Protestant and Co-Counsel for himself Unit 2106, The Atlanta Center No. 31 Annapolis St., Greenhills San Juan, Metro Manila PTR No. 1742807; 01/10/07; Marikina IBP Lifetime Roll No. 05048 Roll of Attorneys No. 37248


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EXPLANATION ON SERVICE BY REGISTERED MAIL Due to time and manpower constraints, a copy of this REPLY TO ANSWER – and – ANSWER TO COUNTER-PROTEST is served on the other counsel by registered mail. LEILA M. DE LIMA

COPY FURNISHED: ATTY. GEORGE ERWIN M. GARCIA Counsel for Protestee Juan Miguel F. Zubiri Ground Floor, Laiko Bldg., Cabildo St. Intramuros, Manila.

E30-Pimentel(Reply to Answer & Answer to Counter-Protest-SET Case No. 001-07)/lml-Aug2007 ☺owen


ANSWER TO COUNTER-PROTEST