REPUBLIC OF THE PHILIPPINES

HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL

Electoral Tribunal Building
Commonwealth Avenue, Quezon City

ARNOLD “ALI” ATIENZA,

Protestant,

- versus - HRET Case No. 19-004 (EP)

Fifth (5th) District, Manila

AMANDA CHRISTINA
“CRISTAL” BAGATSING,
Protestee.

_______________________________

MEMORANDUM
(ON PROTESTEE’S SPECIAL AND AFFIRMATIVE
DEFENSES)

The PROTESTANT ARNOLD “ALI” ATIENZA

(PROTESTANT, for brevity), by counsel, respectfully states:

1. PROTESTEE raised as her special and affirmative defense

that the instant petition is insufficient in form and in content, on the
following grounds:

a. That the acts and omissions complained of fail

to specifically state how, where and in what manner the
PROTESTEE was able to take part in the commission;

b. That on the allegation of vote buying, certain

information were not disclosed, namely: the names and
addresses of persons who sold their votes to PROTESTEE;
the names and addresses of the supporters of
PROTESTEE who intimidated voters; the exact manner,
means and method of vote-buying by PROTESTEE; the
amount of monetary consideration involved in exchange
of the votes; the actual money used in vote-buying; the
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specific time, date and location of when and where the

alleged vote buying were committed;

c. That no affidavits or documentary pieces of

evidence that would support and substantiate the claims
and allegation of vote-buying supposedly committed by
the PROTESTEE; and

d. That PROTESTANT did not specify the

particularities of his allegations of electoral fraud and
irregularities in each of the protested clustered precincts.

2. PROTESTANT notes that after the issuance of the

summons and PROTESTEE’s submission of her answer, the
Honorable Tribunal held a Preliminary Conference on October 29, 2019.
The conference was attended by both parties and presided by
Hearing Commissioner Maria Cleza A. Zamora.

3. It is PROTESTANT’s position that PROTESTEE’s special

and affirmative defenses are now deemed MOOT and ACADEMIC
in view of the issuance summons and the holding of the Preliminary
Conference. In Ferdinand “Bongbong” Marcos vs. Ma. Leonor “Leni”
Robredo,1 the Supreme Court held:

“The protestee prays that a preliminary hearing be

conducted on the abovementioned special and affirmative
defense and thereafter, dismiss the Protest for lack of
jurisdiction and for being insufficient in form and
substance.

xxx xxx xxx

The protestee is mistaken.

xxx xxx xxx

On the matter of sufficiency of the protest, the same

is already beyond dispute. With the issuance of
Summons, the Tribunal has found the Protest to be
sufficient in form and substance. The Protest contained
narrations of ultimate facts on the alleged irregularities
and anomalies in the contested clustered precincts,
which protestant needs to prove in due time.

1
See pp. 4-5, Resolution dated 24 January 2017, PET Case No. 005.
3

However, while the Tribunal finds the Protest

sufficient in form and substance, it must be emphasized
that, as to the veracity of the protestant’s allegations,
nothing yet has been proved. The Protest is only
sufficient for the Tribunal to proceed and give
protestant the opportunity to prove his case in
accordance with the 2010 PET Rules.

Verily, the Tribunal affirms its jurisdiction over the

instant Protest, which is sufficient in form and substance.
The protestee’s prayer to dismiss the Protest for lack of
jurisdiction and for being insufficient in form and
substance is DENIED.”

4. Assuming that issuance of the summons did not render

the case moot and academic, nonetheless the parties have mutually
agreed during the October 29, 2019 Preliminary Conference that the
ballots would be the best evidence of the electoral fraud and
irregularities in both the protest and the counter-protest. In that
regard, both parties have mutually agreed to proceed with the
recount and let the results of which decide the fate of the protest
and the counter-protest. Relatedly, the presentation of evidence
aliunde or those outside of the physical ballots were also mutually
waived, in favor of the ballot recount.

5. That this SUPERVENING ARRANGEMENT is

tantamount to the abandonment or waiver of the parties’ respective
special and affirmative defenses in favor of the immediate recount
of the protested and counter-protested clustered precincts.

6. That assuming for the sake of argument that they

survived, the special and affirmative defenses raised have no merit.

7. First, the examination of the protest and the attached

watchers report would show the specific clustered precincts where the
alleged fraud and irregularities partially happened. The watchers’
report also answers the questions of what happened, the time they
happened, who committed them, among others. Moreover, these
watchers report, unlike a regular affidavit, are spontaneous declaration
made by watchers during or immediately after an event. They
constitute as res gestae or would have higher probative value than an
affidavit subsequently executed.

8. Second, there is NO NECESSITY to establish the juridical

link or the personal guilt of the PROTESTEE to the acts complained
of as they are not indispensable in an election protest. In determining
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the true winner in an election protest, the only issue is who

between the PROTESTEE and PROTESTANT garnered the higher
number votes, validly or legally cast. Verily, as in most cases,
precinct-level fraud is committed not directly by the candidate
himself but through people under his command or employ that it
would be next to impossible to prove such relationship by evidence.
Alternatively, fraud may be committed by a third person in an
election, with or without the consent or participation of the
benefitting candidate, but nonetheless affects the legitimacy or
legality of his proclamation. In other words, the juridical link to or
the personal guilt of the PROTESTEE is inconsequential to the
issue at hand so long as it can be proven by the ballots that fraud
and irregularities made PROTESTEE won.

9. Third, the Honorable Tribunal must take cognizance that

the Automated Election System (AES) operates in secrecy and in record
speed. That while Vote Counting Machines (VCMs) would issue
voter’s receipt to show how it appreciated or read the ballots, the
process of tabulation by the VCM of the clustered precinct results is
done in FULL SECRECY, WITHOUT MECHANISM FOR
IMMEDIATE AUDIT and OPPORTUNITY TO CROSS CHECK. So
even if a candidate has watchers in the questioned clustered precinct,
they have no way of immediately detecting fraud except for odd bits
and pieces of circumstantial evidence that could suggest but could not
really conclusively show fraud. Thus, any protestant could not be
expected to show conclusive evidence of fraud upon filing of the
protest as the law or the HRET rules cannot be interpreted to require
the impossible.

10. In addition, in automated elections, candidates are also

completely blind as regards the accuracy of the transmission and also
of the consolidation and canvassing by the next level Board of
Canvassers (BOC). Thus, like in the case of precinct level fraud, the
PROTESTANT cannot also be expected to conclusively submit proof
of fraud upon filing of the protest.

11. Thus, under the given limitations of the automated

system, PROTESTEE is asking for the impossible.

12. Likewise, the Honorable Tribunal cannot employ the

standard of “sufficiency in form and content” in manual elections where
the entire process is more transparent and made in the presence of
and within the view of the candidates through their watchers.

13. What is clear on the other hand is a plethora of

jurisprudence that provides that opening of the ballot boxes and the
5

examination and counting of ballots deposited therein in election

protests is a MINISTERIAL DUTY of trial courts.

14. In Cagas vs. Comelec (G.R. No. 194139, January 24, 2012),
the Supreme Court further added:

“The rule in this jurisdiction is clear and

jurisprudence is even clearer. In a string of categorical
pronouncements, we have consistently ruled that when
there is an allegation in an election protest that would
require the perusal, examination or counting of ballots as
evidence, it is the ministerial duty of the trial court to
order the opening of the ballot boxes and the examination
and counting of ballots deposited therein.

In a kindred case, Homer Saquilayan v. COMELEC,

the Court considered the allegations in an election
protest, similar to those in this case, as sufficient in form
and substance.

Again, in Dayo v. COMELEC, the Court declared

that allegations of fraud and irregularities are sufficient
grounds for opening the ballot boxes and examining the
questioned ballots. The pronouncement is in accordance
with Section 255 of the Omnibus Election Code, which
reads:

Judicial counting of votes in election contest. Where

allegations in a protest or counter-protest so warrant, or
whenever in the opinion of the court in the interests of
justice so require, it shall immediately order the book of
voters, ballot boxes and their keys, ballots and other
documents used in the election be brought before it and
that the ballots be examined and the votes recounted.

In this case, the COMELEC Second Division found

that the allegations in the protest and counter-protest
warranted the opening of the contested ballot boxes and
the examination of their contents to settle at once the
conflicting claims of petitioner and private respondent.”

15. Lastly, an examination of the allegations raised by

PROTESTEE in her Counter-Protest easily shows that they are similar
to those raised by PROTESTANT. Particularly, in her Counter-
Protest, PROTESTEE questions the results of the election alleging
inaccuracy of the count of the VCM due to alleged technical
6

irregularities, vote-buying, marked ballots, pattern voting, and other

analogous grounds.

16. Again, as agreed upon by both parties, the best way to

resolve this Protest and Counter-Protest is through the examination
of ballots.

17. Relative to this, in the case of Pacanan, Jr. vs. COMELEC

(G.R. No. 186224, August 25, 2009), the Supreme Court held that
primordial consideration in an election protest is that the will of the
electorate is properly upheld. Thus:

“It has been frequently decided, and it may be

stated as a general rule recognized by all courts, that
statutes providing for election contests are to be liberally
construed to the end that the will of the people in the
choice of public officers may not be defeated by mere
technical objections. An election contest, unlike an
ordinary action, is imbued with public interest since it
involves not only the adjudication of the private
interests of rival candidates but also the paramount
need of dispelling the uncertainty which beclouds the
real choice of the electorate with respect to who shall
discharge the prerogatives of the office within their gift.
Moreover, it is neither fair nor just to keep in office for
an uncertain period one whose right to it is under
suspicion. It is imperative that his claim be immediately
cleared not only for the benefit of the winner but for the
sake of public interest, which can only be achieved by
brushing aside technicalities of procedure which
protract and delay the trial of an ordinary action.”

VI.
PRAYER

WHEREFORE, the PROTESTANT most respectfully prays of

this Honorable Tribunal to NOTE this MEMORANDUM and to
immediately DENY PROTESTEE’s special and affirmative defenses
for lack of merit.

PROTESTANT further prays that a manual recount or revision

of the ballots and technical examination be immediately held and
upon determination that PROTESTANT obtained the highest number
of votes for the position of Member of the House of Representatives
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representing the Fifth (5th) District of Manila, this Honorable Tribunal

render a judgment:

a. ANNULLING and SETTING ASIDE the

proclamation of the PROTESTEE as the elected Member
of the House of Representatives representing the Fifth
(5th) District of the City of Manila.; and

b. DECLARING the PROTESTANT as the

winner and the duly elected candidate for the position of
Member of the House of Representatives representing the
Fifth (5th) District of the City of Manila.

The PROTESTANT finally prays for such other relief and

remedies just and equitable under the premises.

Quezon City, November 12, 2019.

ROMULO B. MACALINTAL ANTONIO CARLOS B. BAUTISTA

Roll No.  29040. Roll No. 55967
PTR No. 11660276J, PTR No. 11660275J,
01-07-19, Las Piñas City 01-07-19, Las Piñas City
IBP Lifetime Member No. 0724 IBP Lifetime Member No. 013443
MCLE Compliance No. V-0018139 MCLE Compliance No. VI-0013661,
April 13, 2016 Certificate dated 15 October 2018
Tel. No. 0918-910-7454 Tel. No. 0917-705-4626
rbmacalintal@gmail.com acebautistalaw@yahoo.com

EMILIO L. MARAÑON III

Roll of Attorney No. 57562
PTR No. 7375610; 01-04-19; Quezon City
IBP No. 058976; 01-04-19; Iloilo
MCLE Compliance No. VI-0018079
February 11, 2019
Tel. No. 0917-889-0001
emilio.maranon@gmail.com

COUNSEL FOR PROTESTANT

13 Cagayan Valley Street
Philamlife Village, Las Pinas City
8

Copy furnished:
G.E. GARCIA LAW OFFICE
Counsel for PROTESTEE
Ground Floor, LAIKO Building
Cabildo St., Intramuros, Manila 1002

EXPLANATION

In compliance with the Rules of Civil Procedure, the

undersigned counsel states that due to distance, time, and manpower
constraints, personal service of this Memorandum was not resorted
to and instead, a copy of the same was sent by registered mail with
return card to the above party, as per attached registry receipt.

EMILIO L. MARAÑON III