INDEED, the Supreme Court, sitting as the Presidential Electoral Tribunal, has unanimously dismissed the 2016 election protest filed by former senator Ferdinand Marcos Jr. against Vice President Maria Leonor Robredo. As we await the official results and proclamation of the winning president-elect in the 2022 elections, it is useful to revisit this issue to correct certain distortions of facts.

Indeed, that the high court ruled to dismiss Marcos Jr.'s protest is a fact. However, it is inaccurate and misleading to argue that such a decision has fully cleared the cobwebs of doubt as to the existence of fraud. What was simply ruled by the court was that a recount of the ballots in the three pilot areas identified by Marcos Jr. revealed that he failed to recover substantially enough to order a wider and full recount. No other areas were subjected to scrutiny, including those coming from the Autonomous Region in Muslim Mindanao (ARMM) where Marcos Jr. alleged to have been the site of massive fraud, including alleged cases of pre-shading of ballots, and tampered or falsified election returns. The court did not grant his motion to examine these offered documents simply because ARMM was not included in the pilot areas he identified under the election rules.

Thus, it is erroneous to claim that the court decision has totally proved as false the allegations of fraud. What it has simply decided is that under the technical rules for electoral protests, which the court was duty bound to uphold, Marcos Jr. failed to recover votes in the three areas he identified. At best, what came out of the court's decision is legal truth, but not absolute truth.

The disparity is rooted in our archaic, and I must say, highly arbitrary rules on handling electoral protests. We can only weep with embarrassment when we compare our system with those of other countries like the United States. There, recounts are even automatic if the winning margin falls within a certain range. A protest does not have to be filed in such a case. Protestant candidate does not have to spend, unless the recount is on a margin that is already outside that which mandates automatic action. In such a case, and unless specified, the recount is conducted not in selected pilot areas only, but in all areas covered by the election under protest. Furthermore, recounts are handled expeditiously, and do not drag on for years.

The most fundamental flaw of our electoral protest system is that by its very nature of not having automatic recounts, asking the protestants to spend for them, and leaving it up to them to identify the pilot areas, the innate presumption is that electoral fraud and misdemeanors are burdens only of the defeated candidates and not of the state. However, it should be asserted that, whether with malice or simply due to negligent acts, the failure of the electoral process to truly reflect the will of the people is not just a burden of losers to prove, but also the state's, acting on behalf of the people, simply because it undermines democracy.

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A system where decisions for a full recount is based on only three pilot sites identified by protestant puts the onus on the loser, and would now be dependent simply on searching for areas where a loser feels he has been cheated. In the absence of access to actual ballots, the protestant is left to determine these pilot sites based simply on presumption, suspicion and feeling. The question is what if the protestant is wrong. Thus, the fate of ensuring the integrity of one of the pillars of our representative democracy is left to the gut feel of a loser.

A more fatal flaw also emerges from this system when we put it in the context that our elections are now automated and ballots are now shaded. A system that is purely based on hand examination of ballots will never detect cases of pre-shaded ballots. While it is easy to detect similarity in handwriting which was what used to prevail in manual elections, there is no system to detect, if it is even possible at all, ballots that are pre-shaded by just one person. It is also not entirely clear how a system that is confined to three pilot areas can detect a large-scale tampering of programs and codes. There is no mechanism in the current procedures for filing of electoral protests to raise the issue of digital electoral fraud.

It is in this context, and in these instances, that one cannot fully conclude with confidence that the Supreme Court decision has put to bed the possibility of cheating during the 2016 vice-presidential elections. The allegations of pre-shaded ballots and tampered election returns, in ARMM, including those with similar signatures of the boards of election inspectors even if coming from different areas so far from each other, were never technically examined or considered in the decision. The fact that these remained unsettled continues to cast doubt over the 2016 vice presidential elections beyond the legal conclusion of the court that ruled on the basis of what was only possible and allowed by the prevailing rules.

If there is one area of legislative reform which the incoming Congress has to address, it is to reform our electoral system. This entails not only rationalizing our party system, including our party-lists, and instituting reforms in campaign financing rules. While clearer rules on election surveys, campaigning and debates are all important, what should also be the focus is modernizing the rules and processes in the actual voting and counting. Included here is to once and for all throw out the jaded and obsolete rules on electoral protests and recounts and replace this with one that is in sync with modern technology. Proving the presence of electoral fraud should consistently be the burden of the state, and not just of the losing candidates.