No common issue or common ground was agreed upon by the parties of former vice presidential bet Manuel "Mar" Roxas and Vice President Jejomar Binay during the preliminary conference of the electoral protest lodged by the losing candidate on Monday.
Roxas, represented by lead counsel Joe Tenefrancia, contended that the Supreme Court sitting as the Presidential Electoral Tribunal (PET) should first subject the Precinct Count Optical Scan (PCOS) machines, Automated Election System (AES) source code and Compact Flash (CF) cards to forensic examination before the retrieval of ballot boxes should be ordered by the Tribunal for the revision/recount of votes.
Tenefrancia also asked for another Random Manual Audit (RMA) of election results in more than the 1,145 clustered precincts nationwide already covered by the RMA.
Tenefrancia held that these were necessary in order to make sure that the automated election results were accurate and credible.
"We are saying that the system itself is flawed and therefore the need for the forensic examination and the more comprehensive Random Manual Audit. We pray that before the revision, forensic analysis should be done first by independent technical experts and that an RMA should be conducted with greater sample size and better manner of selecting samples," Tenefrancia said.
Atty. Felicitas Arroyo, lead counsel for Binay, however, objected to the Roxas camp's pleadings insisting that the conduct of forensic examination and RMA were not part of the 2010 Rules of the Presidential Electoral Tribunal (PET) and therefore something that the Tribunal cannot do.
"What the protestant wants us to do now is to invite the PET to do a surgery on a cadaver, to resuscitate a corpse, and reassign the position of organs to suit their purpose! They don't have the facts that such irregularities happened and throwing the burden on the PET because they have not built their case," Arroyo told Hearing Commissioner Bernardo Pardo, who was designated by the Supreme Court sitting as the PET to hear the preliminary conference.
"If we were to allow the PET to oblige the invitation of protestant, we are actually inviting the Court to commit a violation of its very Rules which cannot be sanctioned by the Constitution," Arroyo said.
To this, Pardo asked Arroyo if she was referrring to the absence of Cause of Action for the protest, to which Arroyo said "Yes, Your Honor".
For his part, Hearing Commissioner Pardo told Roxas' counsel that asking the PET to first conduct forensic examination of the AES as well as an RMA would delay the process, which is "beneficial to the other side who is already sitting".
Specifically on the RMA, Pardo also commented that it can only be done by the Commission on Elections (COMELEC) in accordance with Republic Act 9369, more commonly known as the automation law. Pardo, meantime, told Binay's counsel that her pleading for the PET to require Roxas to pay a cash deposit of at least P135 million for the revision/recount of votes may not be necessary at this time since each of the parties deposited an initial P200,000, which is not yet depleted.
Among issues the parties failed to agree upon was the issue of witnesses common to both their protest and counter-protest including, but not limited to, COMELEC officials and SMARTMATIC officers.
The issues raised by the Roxas camp include::
* "high incidence" of "null votes" which total 2,612,207 in areas where Roxas won and less in areas where Binay won
* delays in the preparations of the COMELEC and SMARTMATIC-TIM;
* errors in the configuration of CF cards nationwide a week before the May 10 polls leading to their subsequent recall and reconfiguration;
* erroneous storing of results of the Final Testing and Sealing process of the PCOS machines in the backup CF card by the Board of Election Inspectors (BEI); transmission of said results to the Canvassing Centers and the subsequent official canvass of such results by the Board of Canvassers.
Issues raised by the Binay camp include::
* supposed "null votes" as claimed by Roxas camp not sufficient to affect the outcome of the polls as manifested in a Resolution by the Joint Canvassing Committee of both chambers of Congress;
* Binay Counter-protest limited to matters extraneous to the conduct of automated elections:vote-buying, disenfranchisement due to confusion of voters, illegal printing of ballots and election returns in localities;
* Binay Counter-protest specified areas:Aklan, Iloilo, Negros Occidental, Negros Oriental, Cebu, Bohol, Agusan del Norte, Agusan del Sur.
Roxas was not present in the conference and had to enter a Special Power of Attorney authorizing his legal team to represent him. Binay meantime attended the proceeding but refused to be interviewed beyond saying both protestant and protestee have to be physically present.
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