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ISSUES AND CHALLENGES TO DISPUTE RESOLUTION UNDER THE PCOS AUTOMATED ELECTION SYSTEM ______
Any opinions, findings, conclusions or recommendations expressed in this publication are those of Libertás and do not necessarily reflect the views of the International Foundation for Electoral Systems (IFES) or of the United States Agency for International Development (USAID).! !
Issues and Challenges to Dispute Resolution Under the PCOS Automated Election System
© 2011Libertás. All rights reserved.
Lawyers’ League for Liberty, Inc. Unit 1603-B West Trade Center Bldg. No. 132 West Ave., Quezon City, Philippines
Cover design by: Rabelais Medina !
! PREFACE
“Electoral justice” is a relatively new concept, albeit its underlying principles lie at the very core of the ideals of democratic elections. Essentially, “electoral justice” involves the means and mechanisms “for insuring that each action, procedure and decision related to the electoral process is in line with the law,” and “for protecting or restoring the enjoyment of electoral rights, giving people who believe their electoral rights have been violated the ability to make a complaint, get a hearing and receive an adjudication.” 1
Simply stated, “electoral justice” insures, on the one hand, that the electoral processes conform to the normative standards of free, fair, accessible, credible, and honest elections as provided in the constitution, the statutes and international instruments and treaties. On the other hand, it also guarantees that mechanisms, whether formal or informal, are in place to prevent or resolve electoral disputes arising from any irregularity in the electoral process.2 A sound system of election dispute resolution (EDR) plays a significant role in the attainment of the second objective of “electoral justice.”
Acknowledging the importance of a well-functioning EDR system in the ensuring the credibility of the electoral process and in attaining “electoral justice,” Libertás began its advocacy for legal and policy reforms in this area in 2006. It surveyed the laws, processes and procedures relating to EDR in the Philippines and assessed the effectiveness of the EDR system using the following key indicators: (1) the independence and impartiality of the adjudicative bodies; (2) the accessibility of the proceedings, records and processes; (3) the efficiency of the bodies in resolving electoral disputes; (4) the acceptability and soundness of the decisions; (5) the transparency of the proceedings and of the records; and (6) the preservation of the integrity of evidence.
With the support of the International Foundation for Electoral Systems (IFES) and the United States Agency for International Development (USAID), this ground-breaking initiative led to the publication in 2008, of the BASELINE STUDY ON THE STUDY ON THE !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Jesus Orozco-Henriquez, Electoral Justice: the IDEA Handbook (2010), p.1. 2 Ibid.
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SYSTEM OF ELECTION ADJUDICATION IN THE PHILIPPINES.3 Building upon this initiative, Libertás conducted a more focused and in depth study of the EDR processes in the trial courts and published its findings in the early 2009.4 Libertás then scrutinized the other types of electoral disputes such as pre-proclamation controversies, disqualification cases and election offense cases.
The present study explores the impact of the adopted technology for the first nationwide automated election held on 10 May 2010 on EDR issues. The study illustrates the need to holistically view the electoral processes, as some seemingly innocuous changes may actually require corresponding policy shifts. Thus, while focusing on the inadequacies of the present legal framework to meet the issues pertaining to election protest under the automated election system, the study also shows that should the COMELEC decide to adopt the same system for the next election, there ought to be some changes on how it plans and resolves issues pertaining to qualification of candidates, substitution of candidates and other disputes. Some of the needed changes might also need appropriate amendments to the existing laws.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 Ibid. 4 LIBERTAS (2009), ADJUDICATION OF ELECTION CONTESTS BEFORE THE TRIAL COURTS: A SECOND LOOK AT A.M. NO. 07-4-15-SC AND THE DESIGNATION OF ELECTION COURTS. ii! ! !
! ABOUT LIBERTÁS
Libertás is an organization of lawyers and legal professionals devoted to the protection of civil liberties and the advancement of sustainable democratic reforms in the Philippines. It was founded on February 2, 2002 by a group of lawyers dedicated to put their best efforts in the protection of civil liberties and human rights, the promotion of the rule of law and access to justice, the advancement of democratic reform, and the advocacy for a transparent and accountable government.
Libertás is currently receiving institutional support from the National Endowment for Democracy (NED). In the eight years since its founding, Libertás has partnered with, or obtained support from, government agencies and development institutions, such as the Supreme Court of the Philippines, the Department of Education, the Philippine Judicial Academy, the Commission on Human Rights in the Philippines, the Commission on Elections, the United Nations Development Programme (UNDP), United States Agency for International Development (USAID), the British Council, the Asian Development Bank (ADB), the World Bank, the Friedrich Naumann Foundation, the American Bar Association, the International Foundation for Electoral Systems (IFES), and The Asia Foundation (TAF), in pursuit of its goal of increasing awareness of citizens’ rights and responsibilities, as well as in promoting adherence to democratic processes, good governance, and the rule of law.
In December 2005, Libertás was given the Chief Justice Hilario Davide Judicial Reform Award for its efforts in the promotion of the Rule of Law. In November 2006, Libertás was given recognition by the Integrated Bar of the Philippines for its invaluable contribution to the protection of basic civil liberties in the country.
Libertás is based in Quezon City, Philippines and is made up of 80 members who are in the legal and allied law professions, including law students. Its Executive Director is Roberto Eugenio T. Cadiz.
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Libertás Board of Trustees includes Luie Tito F. Guia, Edwin M. Carillo, Arthur F. Tantuan, Racquel T. Ruiz-Dimalanta, Leah Veronica Olores, Geronimo L. Sy, and Jose Luis Martin “Chito” C. Gascon. Libertás was registered with the Philippine Securities and Exchange Commission as a non-stock and non-profit corporation on January 16, 2003.
THE PROJECT TEAM
ATTY. VINCENT PEPITO F. YAMBAO, JR. Project Director
ATTY. LUIE TITO F. GUIA Resident Consultant
MS. ELIZABETH REVEREZA Admin/Finance
ATTY. MA. EMELYN GERTRUDES W. CORPUS-MARTINEZ Head Writer
Research Team: ATTY. ISOBEL T. SOLIS ANGIE UMBAC PORTIA FRANDO-DAUZ RICKY SABORNAY AILEEN TANGONAN JACKIELEEN KATE ABIS
ATTY. APRIL ROSE S. MABANES Proofreader ! JUSTICE TERESITA DY LLIACCO FLORES Consultant/Adviser
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! ACKNOWLEDGEMENTS
Libertás extends its gratitude the judges, lawyers, and other individuals from different organizations and institutions who participated and shared their insights and expertise in the focused group discussions. Libertás specifically acknowledges all the RTC judges who generously gave their valuable time answering the survey questionnaires
Libertás also appreciates the help extended by the following offices in the gathering of data for this study: the Court Management Office (CMO) of the Office of the Court Administrator (OCA); the Election Contests Adjudication Division (ECAD) and Office of the Clerk of the Commission on Elections (COMELEC); the Office of the Tribunal Secretary of the House of Representatives Electoral Tribunal (HRET); the Senate Electoral Tribunal (SET); and the Presidential Electoral Tribunal (PET). Libertas would like to particularly thank Atty. Leah Abad of COMELEC ECAD; Atty. Baby Ringol of the Office of the Clerk of Court, Supreme Court; Atty. Girlie I. Salarda, Tribunal Secretary of the HRET and her predecessor, Atty. Daisy Panga- Vega; and Atty. Irene P. Guevarra, Tribunal Secretary of the SET.
Lastly, Libertás acknowledges the generous support given by the International Foundation for Electoral Systems (IFES) and technical support extended by the United Stated Agency for International Development (USAID) for this study. This marks the fifth year of the partnership between the Libertás and IFES in the advancement of reforms in the area of election dispute resolution (EDR).
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! TABLE OF CONTENTS
PREFACE i ABOUT LIBERTÁS ii THE PROJECT TEAM iv ACKNOWLEDGEMENTS v
CHAPTER I. INTRODUCTION 1 A. Background of the Study 1 B. Purposes of the Study 3 C. Methodology 4 D. Scope and Limitations 5 E. Organization of the Study 5
CHAPTER II. PHILIPPINE EDR SYSTEM THE 2010 AUTOMATED ELECTION 7 A. The Philippine Election System 7 B. The Commission on Elections (COMELEC) 8 C. The Philippine EDR Mechanisms 9 1. Types of Election Disputes in the Philippines 9 a. Disputes Relating to the Right to Vote 9 b. Disputes relating to Candidate Qualification and Political Party Registration 10 c. Disputes Relating to the Certification Process 11 d. Disputes Relating to Criminal Violation of Election Laws 12 e. Disputes Relating to the Integrity of the Election Results 12 2. Adjudicative Bodies Involving Election Contests 13 D. From “Manual” to “Automated Election” 14 1. 1996 ARMM Regional Elections 15 2. 1998 ARMM Regional Elections 16 3. 2004 Failed Automation Attempt 16 4. New Framework for Automation 17 5. The 2008 Automated ARMM Elections 17 E. The 10 May 2010 Automated Election 18 1. The Ballot 18 a. Ballot with Pre-Printed Names of 18 Candidates b. Precinct-Specific Ballots 18 c. No extra ballots 19 d. Security Features of the Ballots 20
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2. Voting 20 3. Counting 21 4. Generation of Elections Returns and Transmission of Precinct Results 22 a. Generation of Election Returns 22 b. Transmission of Election Returns to BOCs 23 5. Canvassing and Proclamation 23 6. Composition of the BEI and the BOC 24 !
CHAPTER III. CHANGING THE LANDSCAPE OF ELECTION DISPUTE RESOLUTION 27 A. Disputes Relating to the Right to Vote 27 1. Voter Registration 27 2. Inclusion and Exclusion Proceedings 29 B. Disputes Relating to the Qualification of Candidates and Political Parties 31 1. Qualification of Candidates 32 a. The Acosta Case 33 b. The Revilla Case 34 c. Party-list candidates 34 2. Substitution of Candidate 36 3. When a Person Becomes a “Candidate” 39 a. Rules on Premature Campaigning 40 b. Automatic Resignation of Appointive Officials 41 C. Disputes Relating to Criminal Prosecution of Election Offenses 43 D. Pre-proclamation Controversies 45 1. Limitation on the Grounds 47 2. Illegal Composition of the Board of Canvassers 51 3. No Suspension of Proclamation 51 4. Pre-Proclamation Controversies Filed 52 !
CHAPTER IV. PROCEDURES IN ELECTION CONTESTS UNDER THE PCOS AES 55 A. Nature of Election Contest 55 B. Election Protest and the Challenge of Automation 56 C. Procedures in Election Protests 59 1. Filing of the Election Protest 59 a. Who May File Protest 59 b. Period of Filing 60 2. Contents of the Petition 61
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! 3. Payment of Filing Fee and Cash Deposits 61 4. Summary Dismissal 63 5. Service of Summons 63 6. Responsive Pleadings 64 a. Answer to the Petition/Filing of Counter- Protest 64 b. Answer to Counter-Protest 64 7. Preliminary Conference 64 8. Production and Custody of Election 65 Documents 9. Recount and Revision 66 10. Preliminary Determination 73 11. Technical Examination 74 12. Presentation of Evidence 75 13. Filing of Memorandum 77 14. Decision 78 15. Motion for Reconsideration and Appeal 79 16. Execution of Final Decision 80
CHAPTER V. RESOLUTION OF ELECTION CONTESTS UNDER THE PCOS AES 83 A. Election Contests Filed in Relation to the 2010 Automated Election 84 B. Geographical Distribution of Election Contests 86 1. District Representatives 86 2. City and Provincial Officials 87 3. Municipal officials 88 C. Grounds Raised in the Protests 89 1. Systems-related grounds 89 2. Non-systems related grounds 92 D. Status of Election Contests 94 1. Reasons for Termination 94 2. Technical Grounds for Dismissal 95 3. Status of Pending Cases 97 E. Issues and Concerns on the Recount/Revision Procedures 98 1. Machine Count or Manual Count 98 2. Authentication of Ballots 101 3. Actual Ballot or the Scanned Ballot 103 4. Rules on Appreciation 104 5. Counting Rejected Ballots and Re- 107 appreciation of Null Votes
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! F. Other Concerns in Adjudication of Election Contests Arising From the 2010 Automated 110 Election 1. Costs of Pursuing Protests 110 2. Use in Evidence of Electronic Documents and Data 112 3. Transparency and Partiality of the Adjudicators 120
CHAPTER VI . ANALYSIS & CONCLUSION 123 A. Insufficiencies in the Current Legal Framework 124 B. Issues on the Integrity of the PCOS-AES 126 C. Preparation for Dispute Resolution Arising from Automated Elections 129 1. Transparent Right to Redress for Election Irregularities 129 2. Appropriate Administrative and Legislative Measures 131 3. Impartial and Informed Adjudicators 132 4. Dispute Proceedings Take Place Within Reasonable Time and Without Undue Delay 134 5. With Established Sensible Standards and Burden of Proof 136 6. Effective, Timely and Enforceable Remedies to the Injured Party 137 7. Effective Education and Participation of Stakeholders 139
EPILOGUE 141 A. Administrative Planning & Rule Making 142 B. Changes That Require Legislative Reforms 143 C. Changes that Require Constitutional Amendments 144
ANNEXES Towards a Non-Judicial Recount 147 Towards a More Efficient Resolution of Election Offense Cases 155 Towards a Fair and Real Right of Substitution of 161 Candidates
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CHAPTER 1 INTRODUCTION
“[T]he credibility of the process of election adjudication is as crucial in a democracy as the conduct of the election itself. The perception that no just, fair and expeditious relief can be expected to correct a perceived wrong breeds public distrust in the whole electoral exercise. Public distrust in the electoral system can sow the seeds for political destabilization; it is an invitation to military adventurism and can be the linchpin for a successful revolution.”1
A. BACKGROUND OF THE STUDY
High profile election controversies in several countries2 during the past decade have propelled the issue of electoral disputes into the international spotlight.3 These controversies not only aggravated the growing perception that a number of elections around the world are marred by fraud; they also highlighted the inadequacies of election dispute resolution (EDR) mechanisms in these countries to address the vulnerabilities in their electoral processes.4
The Philippines is no stranger to such electoral controversies. The country’s electoral history is peppered with instances of disputes challenging the election results. In rare instances, the EDR mechanisms in place served their purpose of either validating the election results or correcting erroneous proclamation of winning candidates. In most cases though, electoral challenges remained unresolved even after the end of the terms of those candidates whose election to office have been contested.
Among a host of other factors, a general consensus seemed to emerge that the manual election process greatly contributed to the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 LIBERTÀS (2008), BASELINE STUDY ON THE STATE OF ELECTION ADJUDICATION IN THE PHILIPPINES, p. 1. 2 For instance, in the Presidential Elections in the United States (2000), Ukraine (2004), Mexico (2006), and Turkey (2007). See JOHN HARDIN YOUNG (ED.), INTERNATIONAL ELECTION PRINCIPLES: DEMOCRACY & THE RULE OF LAW (2009), pp. 290-298, 322-342. 3 ANNE STURTEVANT, ELECTORAL DISPUTE RESOLUTION: TOWARD ENHANCED ELECTORAL LEGITIMACY, p. 6. 4 Ibid. ! --- 1 ---! ! proliferation of electoral disputes in the Philippines. The manual process was also viewed as the principal cause of delays in the resolution of electoral protests. With too many hands coming into contact with election documents, the manual voting, counting and consolidation procedures were touted to be susceptible to fraud, manipulation and cheating.
Although the EDR mechanisms in place were able to detect and correct these chicaneries, reviewing each and every ballot to discern the true will of the voters in a sea of sundry handwritings, was as time-consuming as it was tedious. Not surprisingly, many Filipinos had hoped that the automation of the electoral processes in the country would lessen election protests and would result to the timely and efficient resolution of these cases.
It is for these reasons that after more than a century of conducting manual elections,5 the Philippines ventured into its first nationwide automated election on 10 May 2010. The new system used Precinct Count Optical Scanning (PCOS) machines which scanned and recorded the votes accomplished by the voters on pre-printed ballots. The results in each precinct were then electronically transmitted to a canvassing center where they were consolidated with other precinct results. The final election results were tallied and generated during canvass proceedings by an electronic canvassing and consolidation system (CCS).
The adopted automated election system (AES) was intended to rectify the flaws and vulnerabilities of the manual voting, counting and consolidation procedures by lessening “human interventions” in these processes. Expected to produce faster, more credible and more acceptable results, the AES was predicted to significantly reduce, if not totally eliminate disputes relating to the outcome of the elections. It was then believed that “voter intent” would no longer be an issue should an election protest be eventually filed thus, expediting its resolution.
The 10 May 2010 automated election proved to be the costliest of all the elections ever conducted in the Philippines. Except in some areas that experienced certain glitches in the system or errors in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5 The first election was held in May 1899 in Baliwag, Bulacan. For a brief history of the Philippine elections. See BASELINE STUDY, p. 7. ! --- 2 ---! ! transmittal of election paraphernalia, the automated election experiment delivered on its promise of quicker results. Whether this new system rendered the elections more credible is however still subject to debate.
Contrary to earlier predictions, official data show that losing parties still flocked to the courts, the Commission on Elections (COMELEC) and other electoral tribunals to contest the outcomes of the election. Many of these cases remained unresolved almost a year and a half after the election mainly due to the absence of clear rules on ballot authentication, recount, and revision or voter-intent determination.
The deluge of election protests does not per se erode the credibility of the automated election. However, the apparent shortcomings of the legal and administrative infrastructures in providing an adequate and expedient remedy to those who may have felt aggrieved unquestionably create a void – big enough to raise suspicion on whether or not the proclaimed results truly reflected the will of the electorate.
B. PURPOSE OF THE STUDY
This study evaluates the sufficiency of the Philippine legal framework to provide adequate remedies for litigants on disputes arising from the 10 May 2010 automated election. In the process, it examines the overall conduct of the adjudicative bodies in handling election disputes lodged in their respective jurisdictions. This study also looks into the preparations by the stakeholders, including political parties, candidates, and civil society organizations on dealing with the changes in the dynamics of disputes triggered by the shift from the manual to an automated election.
In general, this study aims to identify problem areas in the conduct of the first automated election in the Philippines which have direct relation to EDR, with the end of proposing legislative and policy reforms for more effective and credible EDR processes in the country.
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C. METHODOLOGY
In preparing the study, Libertás conducted desk research, interview with key resource persons, focused group discussions, and observations on the conduct of recount and revision in different election adjudicative bodies.
Desk research involved a review of applicable laws, rules and jurisprudence; issuances of the Supreme Court, the COMELEC and the electoral tribunals; newspaper reports; and reports from various election monitoring groups and organizations.
Key informants whose expertise and experience make them ideal sources of policy and legislative recommendations were interviewed on the subject.
To gain a holistic perspective and understanding of the dynamics of dispute resolution in an automated election, several focused group discussions (FGDs) were held which were participated in by trial court judges, representatives of the COMELEC, the House of Representatives Electoral Tribunal (HRET), the Senate Electoral Tribunal (SET), the Presidential Electoral Tribunal (PET), election lawyers, members of the academe and non-governmental organizations (NGOs).
D. SCOPE AND LIMITATIONS
This study does not purport to assess the chosen election technology for the 10 May 2010 automated election in the Philippines. Its inquiry into the technological aspects of the AES is limited to matters that have directly impacted on the EDR processes in the country.
This study focuses on disputes challenging the results of the election or election protests. To a limited extent, it also tackles pre- proclamation controversies and other types of election disputes, if only to illustrate the inadequacies in the current legal framework to fully address the challenges of an automated election.
Considering however that majority of the election protests filed have not been resolved on the merits at the time of the writing of this
! --- 4 ---! ! study, the full picture of dispute resolution under the 10 May 2010 automated election system remains incomplete.
The data used in this study were all obtained from official sources, including the Court Management Office (CMO) of the Philippine Supreme Court; the Election Contests Adjudication Division (ECAD) and the Office of the Clerk of the Commission (OCC) of the COMELEC; and the Office of the Tribunal Secretary of the HRET.
E. ORGANIZATION OF THE STUDY
This study is divided into six chapters. The introductory chapter explains the purposes and rationale of the study, the methodology used, and its scope and limitations. The second chapter provides a background of the Philippine election system and the various EDR mechanisms in place. It also tackles the modifications introduced by the automated election system implemented in the 10 May 2010 election in so far as they impact on EDR. The third chapter analyzes the changes in the complexion of electoral disputes as a result of the shift from the manual system to the automated system of election. The fourth chapter focuses on the procedures and processes in dispute resolution under the PCOS automated election system, with emphasis on disputes relating to the outcome of the election. The fifth chapter provides an analysis of the different issues encountered in the resolution of election contests. The last chapter and lays down the recommendations and the proposed policy and legal reforms, in the light of the earlier discussions.
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CHAPTER II PHILIPPINE EDR SYSTEM & THE 2010 AUTOMATED ELECTION
This Chapter presents a general overview of the election system and EDR mechanisms in the Philippines. Illustrating the intricate connection between the nature of the electoral system and the processes involved in dispute resolution, it provides contextual background to the challenges posed by the shift from manual to automated election discussed in the succeeding chapters.
A. THE PHILIPPINE ELECTION SYSTEM
Filipinos directly vote for every elective position in all levels of government6 in a “synchronized” election7 held every three years. The President and the Vice-President however are elected every six years.8 Moreover, only twelve positions for Senator are elected every three years, as the remaining twelve of the twenty-four senators complete their six-year term every three years, alternately with the other twelve.9
Due to the synchronization of the elections, up to thirty-three positions are voted for every election by a voter using a single ballot.10 The consolidation of election results for national positions passes through a multi-stage canvassing route. Polling station or precinct results are first consolidated at the municipal and city vote !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 Elective national officials are as follows: President, Vice President, twenty-four Senators, District Representative, and Party-list Representative. Elective local officials include the Provincial Governor, Vice-Governor, Board Members, City and Municipal Mayors, Vice- Mayors, and Councilors. For the Regional government of the Autonomous Region of Muslim Mindanao (ARMM), elective positions include that of the Governor, Vice-Governor and Assemblymen. At the barangay (village) level, the voters elect the Chair and Council Members. 7 REP. ACT NO. 7166 (26 November 1991). The synchronized election law does not cover the elections for the barangay level and for the regional government in ARMM. However, on 30 June 2011, Congress passed Rep. Act No. 10153 which reset the ARMM regional elections from 8 August 2011 to the second Monday of May 2013 and every three (3) years thereafter, in effect synchronizing the same with the regular national and local elections. See Abas Kida, et al. v. Senate of the Philippines, et al., GR No. 196271, 18 October 2011. 8 REP. ACT NO. 7166, SEC. 2. 9 Ibid. 10 BASELINE STUDY, p. 17. ! --- 7 ---! ! canvass. The municipal and city canvass results are in turn consolidated at the provincial level canvass. The national canvass finally, is the result of the consolidation of provincial tallies.11 Plurality of vote is enough to declare a winner in any of the elective positions.!
B. THE COMMISSION ON ELECTIONS
The COMELEC acts as the election management body (EMB) in the Philippines. A creation of the Philippine Constitution, the COMELEC is vested with the power to enforce and administer all laws and regulations relative to the conduct of election and other allied electoral exercises.12 It has the mandate to decide, except those involving the right to vote, all questions affecting elections including the registration of political parties.13 It also has the authority to choose an appropriate election system for every election.14
Aside from its administrative power to run elections, the COMELEC is endowed with the power to hear and decide all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and to take appellate jurisdiction over all contests involving elective municipal and barangay officials.15
The COMELEC is composed of a Chairman and six Commissioners who are appointed by the President for a term of seven years without reappointment.16 In adjudicating election disputes, the COMELEC may sit en banc, or in two divisions of three members each.17 The Constitution requires that majority of the Commissioners, including the Chairman, be members of the Philippine Bar.18
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 11 Results from cities considered as highly urbanized are transmitted directly to the national canvassers and do not pass through any provincial canvass. 12 1987 PHIL. CONST., ART. IX-C, SEC. 2 (1). 13 1987 PHIL. CONST., ART. IX-C, SEC. 2 (3). 14 REP. ACT NO. 9369, SEC. 1. 15 1987 PHIL. CONST., ART. IX-C, SEC. 2 (2). 16 1987 PHIL. CONST., ART. IX-C, SEC. 1. 17 1987 PHIL. CONST., ART. IX-C, SEC. 3. 18 1987 PHIL. CONST., ART. IX-C, SEC. 1. On 20 April 2011, Philippine President Benigno S. Aquino III appointed Information Technology professional, Augusto C. Lagman, as COMELEC commissioner, only the 2nd non-lawyer to be so appointed. It was reported that President Aquino preferred a person familiar with technology because of the thrust toward automated elections. See Jill Beltran, “Aquino appoints IT expert to the Comelec,” Sunstar, 27 April 2011.
The COMELEC operates from its central office in Manila, but it has offices in all municipalities, cities and provinces. Notwithstanding its nationwide presence, the COMELEC decides election matters centrally at its Manila office. Election disputes within the jurisdiction of the COMELEC are likewise, heard and processed centrally in Manila, except that lawyers of the poll body in the field offices are occasionally directed to conduct investigation in criminal election offense and disqualification (of candidates) cases and recommend their proper dispositions to the COMELEC office in Manila.
C. THE PHILIPPINE EDR MECHANISMS
The Philippines’ EDR mechanisms are a combination of the judicial model, the election management body model, and the electoral tribunal model. Apart from the COMELEC, the regular courts and the independent electoral tribunals also hear electoral disputes.
1. Types of Election Disputes in the Philippines
Election disputes in the Philippines may be classified into: (a) those relating to right to vote and voter registration; (b) those relating to the qualification of candidates and of political parties; (c) those relating to the certification process; (d) those involving criminal violations of election laws; and (e) those relating to the integrity of election results.
a. Disputes Relating to the Right to Vote
Disputes relating to right to vote are considered judicial issues hence, taken cognizance of and resolved only by judicial authorities. Under the Voter Registration Act of 1996,19 the first level courts20 hear petitions for inclusion or exclusion of voters in the registry list of voters. A citizen’s application for registration as a voter is considered at the first instance by an Election Registration Board (ERB) in each municipality.21 It is the action of the ERB which can be questioned before the first level courts22thru a petition for inclusion or exclusion of voter, after an applicant for registration is either
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 19 REP. ACT NO. 8189. 20 This includes Municipal Trial Courts (MTCs), Metropolitan Trial Courts (MeTC), and Municipal Circuit Trial Courts (MCTCs). 21 REP. ACT NO. 8189, SECS. 32-35. 22 REP. ACT NO. 8189, SEC. 17. ! --- 9 ---! ! wrongly included or wrongly excluded in the voters’ registry list. The decision of the first level courts in inclusion and exclusion proceedings may be appealed to the second level courts (Regional Trial Courts or RTCs) and all the way up the judicial ladder leading ultimately to the Supreme Court.
b. Disputes Relating to Candidate Qualification and Political Party Registration
Dispute relating to a candidate’s qualification may come in four forms: (1) Petition to Deny Due Course/Cancel Certificate of Candidacy, which is based on material misrepresentation of information stated in the certificate of candidacy as provided under Sec. 74 of the Omnibus Election Code;23 (2) Petition for Disqualification under the grounds stated in sections 12 and 68 of the Omnibus Election Code;24 (3) Declaration of a Nuisance !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 23 BATAS PAMBANSA BLG. 881, SEC. 74. “Section 74. Contents of certificate of candidacy. — The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.” 24 BATAS PAMBANSA BLG. 881, SECS. 12 & 68. “Section 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.” xxx “Section 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that ! --- 10 ---! !
Candidate, which is resorted when a candidate has filed a certificate of candidacy25 (a) to put the election process in mockery or disrepute, or (b) to cause confusion among the voters by the similarity of the names of the registered candidates, or (c) has no bona fide intention to run for the office thus, preventing a faithful determination of the true will of the electorate; and (4) Petition for Quo Warranto directed against a proclaimed winner on the ground of his/her ineligibility to hold the office he/she was elected to.
While the first three types are within the exclusive jurisdiction of the COMELEC, the Quo Warranto petitions are classified as “election contests” and are cognizable by different bodies.
c. Disputes Relating to the Certification Process
Disputes relating to the certification process may either be by way of a “Pre-proclamation Petition” or a “Petition to Annul the Proclamation,” which are both under COMELEC’s jurisdiction. In both these remedies, the issues involved are limited to the validity of the canvass procedure and the genuineness of election documents presented for canvass. The substance of the vote count is not in issue.26 Thus, as long as the canvass proceedings are done in accordance with the prescribed procedures and the documents presented for canvass appear ostensibly genuine and authentic, certification of the results or proclamation of the winning candidate will follow as a matter of course. The essential difference between !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. 25 BATAS PAMBANSA BLG. 881, SEC. 69. “Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.” 26 BATAS PAMBANSA BLG. 881, SEC. 68. ! --- 11 ---! ! the two remedies is that in a “Pre-proclamation Petition,” the appropriate grounds were discovered and raised as an issue before the certification or proclamation of the winners while in the “Petition to Annul Proclamation,” the appropriate grounds were discovered and raised after the proclamation. The remedy for those who would allege fraud in the vote count would be a post-proclamation “election protest.”
d. Disputes Relating to Criminal Violation of Election Laws
Criminal violation of election laws are investigated and prosecuted by COMELEC and by the prosecutorial arm of the government or the Department of Justice.27 However, when a probable cause for a commission of an election offense is established against a respondent, said respondent is tried before the second level courts just like any accused in a criminal case.28
e. Disputes Relating to the Integrity of the Election Results
Dispute relating to the integrity of the election results comes in the form of an “election protest,” which is filed by a defeated candidate against the winning candidate on the grounds of fraud and irregularities in the casting and counting of the ballots, or in the preparation of the returns.29 It raises the questions of who actually obtained the plurality of the valid votes and therefore, entitled to hold the office.30 In election protests, the proceedings are essentially judicial in character, as distinguished from the administrative nature of the other proceedings before the COMELEC. Moreover, a proclaimed winner, notwithstanding the pendency of the protest proceedings, is allowed to discharge the powers and functions of his office as presumptive winner until removed, should the protest determines that someone else obtained the highest number of votes.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 27 REP. ACT NO. 9369, SEC. 42. 28 BATAS PAMBANSA BLG. 881, SEC. 268. 29 Samad v. COMELEC, G.R. No. 107854, 16 July 1993. 30 Ibid. ! --- 12 ---! !
2. Adjudicative Bodies Hearing Election Contests
Election protests and petitions for quo warranto are both post- proclamation remedies, and are referred to as “election contests.” Although the grounds for these two remedies are different, they tackle the same issue, i.e., whether or not the candidate who was proclaimed winner should continue to hold office.
Contests involving the positions of President and Vice President are within the exclusive jurisdiction of the Philippine Supreme Court sitting as the Presidential Electoral Tribunal (PET).31 The PET is expressly allowed by the Constitution to promulgate its own rules as “sole judge of all contests relating to election, returns, and qualifications of President or Vice-President.”32
Contests involving Senators (from the upper house of Congress) and District and Party-List Representatives (from the lower house of Congress) are cognizable by the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET), respectively.33 These Electoral Tribunals are independent constitutional bodies with powers to create their own rules of procedures. Each of the Tribunals are composed of nine members; three of which are Justices of the Supreme Court designated by the Chief Justice while the other six members are members of the Senate in case of the SET, or of the House of Representatives in case of the HRET who chosen by the political parties in proportion to the number of seats they obtained in the elections.34
On the other hand, the COMELEC exercises exclusive original jurisdiction over election contests involving regional, provincial and city positions;35 and appellate jurisdiction over contests involving municipal elective officials and barangay elective officials which are decided at the first instance by the second and first level courts, respectively.36 The decision of the COMELEC (for both original and appealed cases) and of the electoral tribunals are final and not appealable. However, the Supreme Court has time and again, taken !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31 1987 PHIL. CONST., ART. VII, SEC. 4. 32 1987 PHIL. CONST., ART. VII, SEC. 4. 33 1987 PHIL. CONST., ART. VI, SEC. 17. 34 1987 PHIL. CONST., ART. VI, SEC. 17. 35 1987 PHIL. CONST., ART. IX-C, SEC. 2 (2). 36 1987 PHIL. CONST., ART. IX-C, SEC. 2 (2). ! --- 13 ---! ! cognizance of petitions questioning the decision of the COMELEC or the tribunals on a petition for certiorari alleging error of jurisdiction or grave abuse of discretion.37
In view of COMELEC’s jurisdiction over appeals from decisions of the lower courts in election contests, it similarly has jurisdiction to issue writs of certiorari, prohibition and mandamus, in aid of its appellate jurisdiction in cases of interlocutory orders issued by the lower courts allegedly with grave abuse of discretion.38
Needless to state, the Philippine Congress provides the substantive guidelines on who are entitled to the remedies, the grounds for instituting election cases, the rights of the parties to the dispute, and the general manner by which cases are to be resolved. In some instances, the various election laws provide timelines for the different stages of the proceedings.
D. FROM “MANUAL” TO “AUTOMATED” ELECTION
In the Philippine context, the “manual election process” or simply “manual election” refers to a process whereby voters, at the precinct level, register their votes by writing the names of candidates of their choice on the blanks provided in the ballots at their designated polling places. After the closing of the polls, votes are counted by reading the names written on the ballots and at the same time, manually tallying them on a document called “election return” and in a publicly displayed tally board. The reading and tallying of votes is done by a Board of Election Inspectors (BEI) assigned in each functioning precinct at the polling places. The election returns from the different precincts are then transmitted to the canvassing centers and read during the first level canvass proceedings. The results that were read are then manually tallied and consolidated into a Statement of Votes to produce a Municipal/City Certificate of Canvass. At the higher canvass levels, the results reflected on the Municipal or City Certificates of Canvass, or on the Provincial Certificates of Canvass, are again manually tallied and consolidated into a Statement of Vote. At all levels of canvass, the candidates obtaining the highest number of votes based on the tally and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 37 1987 PHIL. CONST., ART. VII, SEC. 4. 38 Galang, Jr., v. Geronimo, et al., G.R. No. 192793, 22 February 2011; Bulilis v. Nuez, et al., G.R. No. 19593, 9 August 2011. ! --- 14 ---! ! consolidation, are certified or proclaimed as winners thru a document called Certificate of Canvass of Votes and Proclamation.
In all previous election in the country allegations of fraud, machinations, and rigging of the results have been persistent. The very slow counting and vote-consolidation processes have attained notoriety, and electoral protests contesting the outcome of the elections were commonplace. This is despite the fact that all candidates and political parties, as well as COMELEC accredited independent private sector citizens’ arms, are allowed to post watchers and monitors at each stage of the process. This paved the way for the suggestion that the best way to get faster and credible election result is to use a system that will require as little human intervention as possible. Hence, the idea of “automating” parts of the electoral process materialized.
The COMELEC started the most determined effort at modernizing Philippine elections way back in 1992. However, it is generally conceded that the statutory regime at that time provided insufficient authority for the COMELEC to implement an automated election.39 This prompted the legislature to revisit the Philippine legal framework in order to give COMELEC more flexibility in adopting and employing modern technology for elections.
1. 1996 ARMM Regional Elections
In 1995, Congress passed Rep. Act No. 8046 authorizing a nationwide demonstration of a “computerized” election system and the pilot-testing of this system in the regional election in the Autonomous Region of Muslim Mindanao (ARMM)40 scheduled in March 1996. For this pilot testing, COMELEC used an optical scanning/mark-sense reading device with pre-printed ballots containing all the names of the candidates. The voter accomplished the ballot by shading the oval corresponding to the name of the candidate of his choice. Instead of counting the votes in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 39 At that time, the only legal basis for the adoption of an automated election system was BATAS PAMBANSA BLG. 881, SEC. 52 (i) which states that the COMELEC may prescribe the “use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose.” The 1978 Election Code also contained as similar provision in its Sec. 185 (j). 40 The ARMM is made up of the following provinces: Basilan, Lanao del Sur, Maguindanao, Sulu, and Tawi Tawi. ! --- 15 ---! ! precinct, the BEI transported the ballots to the central counting centers where the ballots were read by machines located therein, in the order of their arrival. !
2. 1998 ARMM Regional Elections
Barely five months before the May 1998 national and local elections, Congress enacted Rep. Act No. 8436, authorizing the nationwide automation of the voting and counting, as well as the canvassing processes, using the optical scanning or mark sense reading (OMR) or similar technology for voting, and any electronic device for canvassing.41
For lack of material time to prepare, an AES was eventually applied only in ARMM, albeit it was supposed to cover the whole of the country.42 Some of the machines used in Sulu failed to accurately read the votes due to some misalignment in the printing of the ballots. The Supreme Court sustained the COMELEC in the latter’s decision to manually count the votes in Manila as a fallback remedy.43
3. 2004 Failed Automation Attempt
COMELEC envisioned to implement a nationwide automated election in the May 2004 presidential election,44 and had in fact already awarded the contract for the supply of OMR machines to a system supplier known as Mega Pacific consortium. However, the Supreme Court voided the award to Mega Pacific due to bidding
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 41 The original REP. ACT NO. 8436, SEC. 7. 42 See the original REP. ACT NO. 8436, SEC. 6 which provides in part that “if, inspite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions.” 43 Loong v. COMELEC, G.R. No. 133676, 19 April 1999. 44 After the 2001 elections, COMELEC had planned for a three-phased modernization program. The first phase involves an attempt to improve the system of registration of voters, the second, the automation of the voting and counting stage, and the third, the electronic transmission of election results. The second and third phases were not implemented because of Supreme Court rulings, while the first phase did not really take off as planned and have no significant impact in the 2004 and 2007 elections. ! --- 16 ---! ! irregularities.45 The 2004 presidential elections ended up employing the old manual process.
4. New Framework for Automation
In January 2007, Congress enacted Rep. Act No. 936946 amending almost the entire Rep. Act No. 8436, and providing a new framework for an AES.
Rep. Act No. 9369 introduced the possibility of using a direct recording electronic (DRE) election system.47 Under the original Rep. Act No. 8436, only optical scanning or reading technology was provided. Rep. Act No. 9369 also requires that the chosen AES would be able to record voting data, and transmit voting results electronically.48
It bears emphasis that while Rep. Act No. 9369 provides the basic framework for the adoption of AES, it also introduced several changes in the manual election process.
5. The 2008 Automated ARMM Election
For the 11 August 2008 regional election in the ARMM, the COMELEC prescribed the use of DRE technology in the whole province of Maguindanao and paper-based OMR technology for the rest of the region.49 The COMELEC allocated about 3,000 DRE machines in Maguindanao, at the rate of 3 DRE machines per clustered precinct.50 For the rest of the region, 154 Automated Counting Machines (ACM) were allocated, at the rate of 1 ACM per
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 45 Information Technology Foundation of the Philippines, et al. v. COMELEC, et al., GR No. 159139, 13 January 2004. 46 “An Act Amending Republic Act No. 8436 Entitled ‘An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National of Local Elections and In Subsequent National and Local Electoral Exercises to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as amended, Republic Act No. 7160 and Other Related Laws, Providing Funds Therefor and for Other Purposes.” 47 REP. ACT NO. 9369 SEC. 6 amending REP. ACT NO. 8436, SEC. 6 and re-numbering it to SEC. 5. 48 Ibid. 49 COMELEC Resolution No. 8415, 6 February 2008. 50 Annex “A” to the Request for Proposal. ! --- 17 ---! !
10,000 registered voters. This translated to 1 ACM per municipality for most of the municipalities.51
The use of two kinds of AES allowed the COMELEC to evaluate the suitability of the different technologies in the Philippine electoral setting, preparatory to choosing and designing the AES for nationwide use in 2010.52
E. THE 10 MAY 2010 AUTOMATED ELECTION
For the 10 May 2010 automated election, the COMELEC chose a paper-based AES using the Precinct Count Optical System (PCOS) at the voting and counting level, and a Consolidation Canvassing System (CCS) or Rest-Time Election Information System (REIS) at the canvassing levels (CCS-REIT). Manual voting remained but there is now: (i) electronic counting of votes through the PCOS; (ii) generation by the PCOS of electronic election returns; (iii) electronic transmission of the results to the various BOCs using the PCOS; and (iv) electronic canvassing and consolidation of the election results through the CCS-REIT.
1. The Ballot
a. Ballot with Pre-Printed Names of Candidates
The use of the ballots with pre-printed names of candidates is one of the major departures from the manual election system. To cast his/her vote, the voter merely marks the “oval” beside the pre- printed name of the candidate of his/her choice. The surnames of the candidates are arranged alphabetically for each position.
b. Precinct-Specific Ballots
Another departure from the previous process involves the use of “precinct specific” ballots. In the previous elections, the ballots were essentially “generic” within a municipality or city. For the 10 May 2010 automated election, the ballots were “precinct-specific,” !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 51 Ibid. 52
c. No Extra Ballots
In all previous manual elections, extra ballots were allocated as a contingency measure to address situations when a voter accidentally spoils or defaces his/her ballot. In these instances, the voter is entitled to another ballot but he/she cannot change hi/her ballot more than twice.55 In line with this, each precinct is allocated official ballots at the rate of one and one-fifth ballots for every voter registered in the polling place.56
For the 10 May 2010 automated election, the COMELEC has decided early on that there would be no extra ballots57despite the clear mandate of Rep. Act No. 9369, requiring that the ballots be printed and distributed at the rate of one ballot per registered voter with provision for an additional three ballots per precinct.58 As such, the number of ballots allocated for a clustered precinct was exactly the same as the number of the registered voters. In case of ballot shortage, voters were advised to cast their votes in another precinct but within the same municipality or “councilor district.”59
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 53COMELEC Resolution No. 8647, as amended by COMELEC Resolution No. 8699, allowed the clustering of a maximum of seven (7) precincts, which aggregate number of registered voters shall not exceed one thousand (1,000) voters. It is to be noted, however, that Section 6 of Rep. Act No. 8189 provides that each precinct shall have no more than 200 voters although “consolidation” or “merger” of at most three (3) precincts is allowed. 54
d. Security Features of the Ballots
Apart from the usual ballot security features used in the previous elections,60 Rep. Act No. 9369 requires the use of bar codes, holograms, color shifting ink and the use of microprinting technology.61 It also provides that official ballots shall be printed by the National Printing Office (NPO) or the Bangko Sentral ng Pilipinas (BSP).62 Accordingly, the official ballots used in the 10 May 2010 automated election contained UV marks, bar codes and a watermark. As previously mentioned, ballots were made “precinct- specific” as an added security feature.
During the process of printing the ballots, it was discovered that substandard ultra-violet (UV) ink was used and for which reason, a large number of the printed ballots failed in the acceptance test. Due to time constraints, the COMELEC and Smartmatic-TIM decided to turn off the UV ink verifier feature of the PCOS machine to do away with ballot re-printing.63
2. Voting
The 10 May 2010 automated election also introduced significant changes in the procedures after the ballots have been accomplished.
Under the manual election system, the voters simply drop their folded ballots into the ballot box for counting at the close of voting. Under the AES adopted for the 2010 election, the voters have to feed their ballots into the PCOS machines. These PCOS machines may reject certain ballots fed into it in three situations: (1) Ambiguous marking on the ovals; (2) Misread Ballots; and 3) Invalid Ballots.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60 The official ballots were printed on security paper with clear and legible watermark; with a detachable coupon containing the serial number of the ballot; and a space for the voter’s thumbmark as also required by BATAS PAMBANSA BLG. 881, SEC. 23(a). 61 REP. ACT NO. 9369, SEC. 13, amending REP. ACT NO. 8436, SEC. 11 and renumbering it to SEC. 15. 62 Ibid. However, said printing may be contracted out by the COMELEC upon certification of the NPO and the BSP that they cannot meet the printing requirements. 63 Bantay Eleksyon Report, p. 7.
Voters whose ballots were rejected were given the chance to correct and/or to re-feed the ballots in the PCOS machine three times or in four different orientations, depending on the cause of the rejection. Ballots still rejected by the PCOS machine were placed inside the portion of the ballot box for rejected ballots and will no longer be counted. Any party objecting to the rejection of the ballot shall reduce his/her objection in writing which the BEI shall attach and note in the minutes.64
The adopted PCOS system also took picture images of all ballots that went through the PCOS machines, which images were stored in Compact Flash (CF) Cards, the data storage device provided by COMELEC in the last elections.
In all previous elections, voting hours were from 7:00 am until 3:00 pm.65 However, due to the clustering of precincts for the 2010 election which caused long queues in the polling stations, voting hours were extended until 7:00 p.m.66
3. Counting
In manual elections, the counting of votes is open to the public wherein tally boards are used to enable them to observe the counting process.67 The election return and the tally board are simultaneously accomplished by the designated poll clerk and the third member of the BEI, respectively.68
Each party or candidate may designate poll watchers who will observe and register their observation on the appreciation and counting votes at the precinct level, apart from the poll watchers from accredited citizens’ arms like the Parish Pastoral Council for Responsible Voting (PPCRV) and the National Movement for Free Elections (NAMFREL).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 64 COMELEC Resolution No. 8786, Sec. 38(e). 65 BATAS PAMBANSA BLG. 881, SEC. 190. 66 COMELEC Resolution Nos. 8646 and 8786. 67 REP. ACT NO. 9369, SEC. 31, amending REP. ACT NO. 7166, SEC. 25. 68 Ibid. ! --- 21 ---! !
In the 10 May2010 automated election, the votes in the ballots that were accepted by the PCOS machine were electronically counted or tallied by the PCOS machine. This dispensed the need for a tally board and the process of “appreciation” of the ballots by the BEIs.
However, a limited ‘appreciation’ of the votes by the PCOS machines actually occurs because:
a. If more than the required number was shaded for a position (‘over-voting’), the vote will be considered stray or “null” for that position; b. A vote is considered valid only if the mark or shade of the oval reaches the threshold of 50% ; and c. A vote is “null” if the shade covers 4% or less of the area of the oval.
4. Generation of Elections Returns and Transmission of Precinct Results
a. Generation of Election Returns
In manual elections, the BEI accomplishes by hand the election returns, which is prepared simultaneously as the votes are counted.69 The summation of these votes are written both in figures and in words which are then ‘closed’ with the signatures and right thumbmark of the members of the BEI.70 Eight handwritten copies of the election returns are to be prepared by the BEI – one set for the national positions (President, Vice-President, Senators, House of Representatives and Party-list), and another set for the local positions to be distributed as directed by law.71
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 69 REP. ACT NO. 9369, SEC. 32, amending BATAS PAMBANSA BLG. 881, SEC. 212 70 REP. ACT NO. 6646, SEC. 16. SEC. 17 thereof further provides – “Section 17. Certificate of Votes as Evidence. - The provisions of Sections 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of canvassers by at least two members of the board of election inspectors who issued the certificate: Provided, That failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns.” 71 REP. ACT NO. 9369, SEC. 33, amending REP. ACT NO. 7166, SEC. 27. ! --- 22 ---! !
In the 10 May 2010 automated election, it is the PCOS machine that generated the election results. The BEI only has to print the required number of copies and distribute the same as directed by law.72
b. Transmission of Election Returns to BOCs
In manual elections, election returns are personally delivered by the BEI to the Municipal/City BOCs.73 For the 10 May 2010 automated election, electronic transmission of the election returns were made after the printing of the 8th copy of the election returns,74 and transmission was made simultaneously to three (3) locations – the server for the City/Municipal Board of Canvassers, the server for the political parties (Dominant Majority/Dominant Minority), accredited citizen’s arm/Kapisan ng mga Broadcaster ng Pilipinas(KBP), and to the COMELEC Central/Back-up Server.75
5. Canvassing and Proclamation
Under manual elections, the basis of the canvass of election returns are the election returns manually accomplished and transmitted by the BEI. The Certificates of Canvass and Proclamation are also manually accomplished by the BOC.
On the other hand, for the 10 May 2010 automated election, both the transmission of the election returns and the canvassing and consolidation of votes, as well as the preparation of the certificates of canvass and statement of votes are done through electronic means.76
Rep. Act No. 9369 also provides that (a) election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 72 REP. ACT NO. 9369, SEC. 32, amending BATAS PAMBANSA BLG. 881, SEC. 212; REP. ACT NO. 9369, SEC. 33 amending REP. ACT NO. 7166, SEC. 27 73 BATAS PAMBANSA BLG. 881, SEC. 229(a). 74 COMELEC Resolution No. 8786, Sec. 40 (h) to (j) and (bb). 75 COMELEC Resolution No. 8786, Secs. 10 and 40(z). 76 REP. ACT NO. 9369, SEC. 20, amending REP. ACT NO. 8436, SEC. 21 and renumbering it to SEC. 25. Thirty copies each of the certificates of canvass for national and local positions are produced and distributed as directed by law, except that after the sixth copy is printed, the same shall be posted. ! --- 23 ---! ! votes and the proclamation of a candidate;77 and (b) certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate.78
However, for the 10 May 2010 automated election, digital signing of election returns was “turned off”, and no mention was made regarding digital signatures for the electronically transmitted certificates of canvass.79
6. Composition of the BEI and the BOC
It must also be mentioned that the adoption of the AES necessitated the presence of an information technology-capable person in the BEI and the BOC.
Section 13 of the Electoral Reforms Law of 198780 provides that the BEI shall be composed of a chairman and two members, all of whom shall be public school teachers. In an automated election, one of the members of the BEI should be an information technology-capable person as certified by the Department of Science and Technology (DOST).81 The COMELEC thus had one of the assigned public school teacher attend a two-day seminar program (one day training on the PCOS and the next day devoted to a certification exam) administered by DOST personnel who themselves underwent a two- day training and another day devoted to a seminar on the administration of the certification for the BEIs.82
The law also requires that the BOC be assisted by information technology-capable person authorized to operate the CCS machine.83 In this regard, the COMELEC declared that such IT-
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77 REP. ACT NO. 9369, SEC. 19, amending REP. ACT NO. 8436, SEC. 18 and renumbering it to SEC. 22. 78 REP. ACT NO.9369, SEC. 20, amending REP. ACT NO. 8436, SEC. 21 and renumbering the same to SEC. 25. 79 COMELEC Resolution No. 8786 of the General Instructions to the BEI, Sec. 40 (f) and (g); COMELEC Resolution No. 9909 of the General Instructions to the BOC. 80 REP. ACT NO. 6646, as further amended by REP. ACT NO. 9006. 81 REP. ACT NO. 9369, SEC. 3 amending REP. ACT NO. 8436, SEC. 3. 82 Kimberly Tan, “407 BEI Certifiers Undergo Training,” GMAnews.TV, 19 February 2010.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 84 COMELEC Resolution No. 8804, Rule 4, sec. 1. ! --- 25 ---! !
! --- 26 ---! !
CHAPTER III CHANGING THE LANDSCAPE OF ELECTION DISPUTE RESOLUTION
This Chapter highlights the challenges and the disputes engendered by the shift from manual to automated election system in the Philippines. Some of these challenges require no drastic change in procedures and may be resolved by careful planning of the electoral processes. Others matured into full-blown legal disputes which prompted the Supreme Court to provide new interpretations to harmonize the different and sometimes conflicting election laws. Yet, there are some issues that await further clarification and may only be resolved through amendatory legislations. Most evident of these challenges relate to disputes relating to the outcome of the elections, as they involve changes in procedures, appreciation of evidence, and other system-related concerns as will be tackled in the next chapters.
A. DISPUTES RELATING TO THE RIGHT TO VOTE
The automated election system per se did not change the registration procedure thus, the EDR process relating to the right to vote remained unaltered. Nevertheless, certain administrative preparations undertaken by the COMELEC spurred controversies relating to the registration of voters and the remedies of those who may have been wrongly excluded in the voters list.
1. Voter Registration
The Voters Registration Act of 1996 mandates a system of continuing registration, except during the period starting one hundred twenty days (120) before a regular election and ninety (90) days before a special election.85 This means that for the 10 May 2010 automated election, the 120-day prohibitive period started only on 10 January 2010. Consequently, all qualified Filipinos would have been able to register as voters until 9 January 2010. This also means that the COMELEC would have been able to know the number of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 85 REP. ACT NO. 8189, SEC. 8. ! --- 27 ---! ! registered voters and to generate the Permanent List of Voters only after the expiration of this period - a situation that conflicts with the policy directions and the schedule set by the COMELEC.!
As earlier discussed, the COMELEC decided that it would print and distribute only such number of ballots as there are registered voters, and the PCOS machine deployed to a clustered precinct shall be configured to read only such number of ballots assigned in the said clustered precinct.86 In addition, there would be no replacement ballots for any cause of ballot rejection by the PCOS machine.87
Anticipating that it will need more time to process all the application for registration in time for the scheduled configuration of the PCOS machines, the COMELEC issued Resolution No. 8585 moving the deadline of voter registration to 31 October 2009.88 The COMELEC predicated its actions on Rep. Act No. 664689 and Rep. Act No. 8436,90 which authorized the Commission to fix other periods and dates for pre-election activities. ! Certain groups deplored the shortening of the voter registration period as it had the effect of disenfranchising otherwise qualified Filipino voters who would not be allowed to register although the legally imposed 120-day prohibitive period has not yet set in. Eventually, Kabataan Party List Representative Raymond V. Palatino filed a petition with the Supreme Court challenging COMELEC Resolution No. 8585.91 ! On 15 December 2009, the Supreme Court declared COMELEC Resolution No. 8585 null and void, and ordered the COMELEC to continue with the registration of voters until 9 January 2010.92 According to the Supreme Court, the Congress through Rep. Act No. 8189, had determined that the period of 120 days before a regular election is enough for the COMELEC to undertake all the necessary !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 86 COMELEC Resolution No. 8585, second Whereas clause. 87 COMELEC Resolution No. 8698. 88 In its earlier Resolution (Resolution No. 8514 dated 12 November 200), the COMELEC fixed the period of registration from 2 December 2008 to 15 December 2009. 89 REP. ACT NO. 6646, SEC. 29. 90 REP. ACT NO. 9369, SEC. 23, amending REP. ACT NO. 8436, SEC. 24 and renumbering it to SEC. 28. 91 Kabataan Party List v. COMELEC, G.R. No. 189868, 15 December 2009. 92 COMELEC Resolution No. 8719, implementing the Supreme Court’s decision in Kabataan Party List v. COMELEC. ! --- 28 ---! ! administrative preparations, including: (a) the completion of project of precincts, which is necessary for the proper allocation of official ballots, election returns and other forms and paraphernalia; (b) constitution of the BEI including the determination of the precincts to which they shall be assigned; (c) finalizing the Computerized Voters List; (d) supervision of the campaign period; and (e) preparation, bidding, printing and distribution of Voter’s Information Sheet.
While recognizing the authority of the COMELEC under Rep. Act No. 6646 and Rep. Act No. 8436 to fix other periods and dates for other pre-election activities, the Court said that this authority should be confined to situations where such activities cannot be reasonably held within the period provided by law. In this case, the Court said that the COMELEC has no valid justification not to hold voter registration until the start of the 120-day prohibitive period.
Implementing the said Court order, the COMELEC issued Resolution No. 871993 setting the last day of application for registration on 29 December 2010, and the last day for the hearing of the said applications by the ERB on 9 January 2010. According to the COMELEC, the registration period in Rep. Act No. 8189 includes the hearing on the applications of registration by the ERB.
2. Inclusion and Exclusion Proceedings
Alleged absence of voter’s names and the inclusion of fictitious, dead, or double registrants in the voters list is a perennial issue during every election, and the 2010 automated election was not an exception.94
As previously stated, persons who may have been omitted in the Permanent List of Voters may file for a petition for inclusion in the first level courts, while those questioning the inclusion of voters in the List may file a petition for exclusion in the same courts. For these remedies to be activated however, the COMELEC would need to have finalized its Permanent List of Voters. Thus, delay in coming up with the Permanent List of Voters will mean delay in triggering !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 93 Promulgated on 17 December 2010. 94 Commissioner Rene V. Sarmiento, “Assessment of the 2010 Elections and Way Forward.” Speech delivered during the Metrobank Foundation Professorial Chair Lecture, 24 January 2011. ! --- 29 ---! ! inclusion and exclusion petitions.
The procedure for inclusion and exclusion is relatively simple but it is not uncommon that inclusion and exclusion orders would be received only on the day of the election. For this reason, the Omnibus Election Code provides two contingency measures for such and other eventualities. Section 182 speaks of emergency ballots, which may be used if there are no sufficient ballots for all registered voters or where they are destroyed at such time as to render it impossible to provide other official ballots. Meanwhile, section 183 requires that official ballots shall be distributed at a rate one and one-fifth of every registered voter. Rep. Act No. 9369 also provides similar contingency measure under an automated election regime. It mandates that official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct.95
The COMELEC disregarded these contingency measures in the 10 May 2010 automated election. It maintained the one-ballot-per- voter ratio in the distribution of the ballots in the clustered precincts. COMELEC Resolution No. 882096 promulgated on 21 April 2010 states that “under the said technology and as a security protocol against vote padding, the authorized number of registered voters is encoded into the system such that voters in excess of said number will not be able to vote, or that ballots in excess of said number will not be accepted by the system.”
More bothersome though was the policy set by the COMELEC expressed in the same Resolution No. 8820, directing all its election officers to defer the implementation of decisions, resolutions and orders of the first level courts on inclusion of voters rendered or promulgated beyond 25 January 2010. Instead of implementing these orders, the election officers were simply directed to refer the same to the COMELEC Law Department for proper resolution.97 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 95 REP. ACT NO. 9369, SEC. 13, amending REP. ACT NO. 8436, SEC.11. 96 “In the Matter of the Policy of the Commission on Decisions, Resolutions or Orders of the Courts Relative To Inclusion Of Voters In Connection With the May 10. 2010 National And Local Elections.” 97 The dispositive portion of the resolution reads: “NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Republic Act No. ! --- 30 ---! !
To stress, a petition for inclusion may be filed anytime except 105 days prior to the start of a regular election.98 The first level courts are given fifteen (15) days to decide the petition from the day of its filing. Decisions of the first level courts on inclusion of voters are final and executory unless appealed to the RTC.99 If appealed, the RTC is allowed to decide the same not later than fifteen days before the elections and such decision shall again be final and executory.100
For the 10 May 2010 automated election, the 105-day prohibitive period for filing petitions for inclusion would have started on 19 January 2010. However, in Resolution No. 8719, the COMELEC set the last day of the hearing for the approval or disapproval of the applications for registration on 9 January 2010, and set the deadline for the filing of the petition for inclusion on 15 January 2010. This means that the first level courts have until 30 January 2010 to decide the petitions. In Resolution No. 8820, the COMELEC subsequently adjusted the date and reckoned the 15-day period for the first level courts to decide on petitions for inclusion from 10 January 2010, or until 25 January 2010.
The filing of petition for inclusion is a remedy granted by law to implement the substantive right to vote. The COMELEC not only trampled on the right of the otherwise qualified voters to avail of this remedy within the period set by Rep. Act No. 8189, it also penalized even those who have availed of the remedy within the shortened period due to the failure of the first level courts to rule on their petitions within the prescribed 15-day period.
B. DISPUTES RELATING TO THE QUALIFICATION OF CANDIDATES AND POLITICAL PARTIES
The adopted system for the 10 May 2010 automated election also significantly impacts on disputes relating to the qualification of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9369, and other pertinent election laws, RESOLVED as it hereby RESOLVES to direct all Election Officers to defer implementation of Decisions, Resolutions or Orders of Metropolitan/Municipal Trial Courts on inclusion of voters rendered/promulgated beyond the reglementary period provided under RA 8189 and to refer the same within five (5) days from receipt thereof, to the Law Department for proper disposition.” 98 REP. Act No. 8189, SEC. 34. 99 REP. ACT NO. 8189, SEC. 34. 100 REP. ACT NO. 8189, SEC. 32(g). ! --- 31 ---! ! candidates and political parties. Aside from careful planning and deliberate efforts to resolve issues on the qualification of candidates,101 the COMELEC had to contend with the interpretation of the rules concerning the substitution of candidates, the effect of the filing of certificates of candidacies, and pre-mature campaigning.
1. Qualification of Candidates
As part of its early preparations for the automated election, the COMELEC decided to set the filing of all certificates of candidacy from 20 November up to midnight of 1 December 2009,102 earlier than the official start of the campaign period which were set on 9 February to 8 May 2010 for national positions and party lists candidates, and 26 March to 8 May 2010 for local positions.103 Printing of the ballots was supposed to begin on 25 January 2010104 but it had to be moved to 7 February 2010 to wait for the resolutions on various disqualification cases in order to reflect the final and accurate list of candidates.105
The COMELEC received 283 disqualification cases from 2 December 2009 to 24 March 2010.106 A day before the start of the local campaign period and way after the printing of the ballots have begun, the COMELEC had resolved only 164 of the 221 disqualification cases involving local officials.107 As late as ten days before the election, the COMELEC was still issuing directives to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 101 As discussed in Chapter 2 of this paper, disputes relating to the qualification of voters include petition to deny due course or to cancel certificate of candidacy, petition to declare a candidate a nuisance candidate, and petition for disqualification. 102 COMELEC Resolution No. 8678 as amended by COMELEC Resolution No. 8692. 103 COMELEC Resolution No. 8646. Under Sec. 7 of REP. ACT NO. 7166, certificates of candidacy may be filed not later than the day before the date legally fixed for the beginning of his campaign period. 104
a. The Acosta Case
The case of disqualified presidential candidate Vetallano Acosta is an interesting illustration of the need for swift and decisive resolution of disputes relating to the qualification of candidates. The Acosta case, as further illustrated by the case of Senator Ramon “Bong” Revilla, Jr., also highlighted another unique concern in pre-printed ballots, – the importance of placement candidates’ names in the ballots.
Acosta filed his Certificate of Candidacy as an independent candidate. On 15 December 2009, upon the recommendation of its Law Department, the COMELEC cancelled Acosta’s certificate of candidacy on the ground that he was a nuisance candidate.109 However, upon subsequent presentation of a nomination from Kilusang Bagong Lipunan (KBL) his certificate of candidacy was given due course on 14 January 2010.110 Candidate Benigno Aquino intervened in the case asking the COMELEC to nullify Acosta’s candidacy on the same ground that he is a nuisance candidate. Aquino also contended that Acosta’s candidacy was a ploy to dislodge his name from the 1st slot and to put the name of his opponent, presidential candidate Manny Villar, in the last column all by himself.111
At a hearing conducted by the COMELEC on 19 January 2011, Acosta appeared and told the Commission he couldn’t recall when he joined the KBL, and that is “only an accident” that made him the KBL nominee. In an interview after the hearing, he said that he will no longer campaign and join presidential debates, and that he would leave his candidacy to God. It was thereafter discovered that Acosta was not even a registered voter in Manila or anywhere else per COMELEC records and had no visible means of support. Moreover,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 108 COMELEC Resolution No. 8844. 109 COMELEC Resolution No. 8713. 110 COMELEC Resolution No. 8743. 111 SPA 09-031. ! --- 33 ---! !
KBL vice-presidential candidate, Jay Sonza, also claimed he has never heard of Acosta.112
Curiously, it was only on 4 March 2010 that the COMELEC En Banc declared with finality that Acosta is a nuisance candidate. By then, ballots have already been printed with his name on it. Acosta ultimately ranked seventh amongst the ten presidential candidates.
b. The Revilla Case
In the 2004 election, Senator Revilla, whose real name is Jose Marie Mortel Bautista, ran as Ramon “Bong” Revilla, Jr. – his screen name as an actor. “Bong” in this case, was used as his nickname.
Prior to the filing of the certificates of candidacy for the 2010 election, Senator Revilla petitioned the trial court in his home province of Cavite for a change of his surname to “Bong Revilla.” The court granted his petition113thus, enabling him to use his new surname in filing his certificate of candidacy for the 2010 election. With the surname “Bong Revilla,” he was listed 8th amongst 61 senatorial candidates.
A petition to deny due course to his certificate of candidacy was filed on the ground of material misrepresentation of his surname as “Bong Revilla” but the COMELEC dismissed the petition for lack of merit for the reason that the court had already granted his petition for correction of name.
c. Party-list Candidates
Disputes involving the qualifications of party-list candidates also created problems for the COMELEC. The party-list law does not limit the number of party list organizations that can participate in an election. The law however, allows the COMELEC to register the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 112 Rodel Rodis “Who is Vetallano Acosta?,” Inquirer.net, 15 April 2010.
Due to the number of organizations applying for registration to be able to participate in the party-list election, the COMELEC had to balance the substantive right to political participation vis a vis the limitations of a pre-printed ballot. Certainly, a long list of party list candidates unnecessarily lengthens the ballots. The length does not only adds to the cost of the ballots but also contributes to the time it takes voters to accomplish the ballots.
From the records, it appears that eight of the party-list organizations on the ballot were eventually disqualified from participating in the elections while eight of the top 39-ranked party list organizations were still subject of pending petitions for cancellation of registration as of 31 May 2010.115
Meanwhile, the Supreme Court reversed the COMELEC’s decision to delete from the list of registered party lists the Philippine Guardians Brotherhood, Inc. (PGBI).116 PGBI filed a petition for certiorari with
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 114 REP. ACT NO. 7941, SEC. 6. “Sec. 6. Removal and/or Cancellation of Registration. - The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (1) It is a religious sect or denomination, organization or association organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two percentum (2%) of the votes cast under the party- list system in the two (2) preceding elections for the constituency in which it has registered.”
115 National Board of Canvassers Resolution No. 10-009. 116 PGBI was one among twenty-five party-list organizations delisted under COMELEC Resolution No. 8679 promulgated 18 October 2009. See Philippine Guardians Brotherhood, Inc. v. COMELEC, G.R. No. 190529, 29 April 2010. ! --- 35 ---! ! the Supreme Court. The Court issued a status quo ante order on 2 February 2010, and the COMELEC filed a motion for reconsideration. The Supreme Court did not act on the Commission’s motion for reconsideration, but eventually granted the petition on 29 April 2010, and declared PGBI as qualified to be voted upon in the 10 May 2010 automated election. However, PGBI’s name never got onto the ballot. This prompted the Supreme Court to hold the COMELEC guilty of indirect contempt. But instead of imposing the penalty of imprisonment and/or fine under the Rules of Court, the Supreme Court imposed the penalty of severe reprimand in recognition of the constraints that COMELEC was then up against with the new election system.
2. Substitution of Candidates
The use of ballots with pre-printed names of candidates also forced the COMELEC to make strained and controversial interpretation on the rules on substitution of candidates, and on the counting of votes for the substitute.
Substitution of a candidate is allowed when an official candidate of a registered or accredited political party has withdrawn, has died or was disqualified by final judgment. The Omnibus Election Code allows the substitution of candidates until the mid-day of election day.117
“If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid- day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of Election Day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.” !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 117 BATAS PAMBANSA BLG. 881, SEC. 77. ! --- 36 ---! !
For the 10 May 2010 automated election, the substitute for an official candidate who dies or was disqualified by final judgment may still file his/her certificate of candidacy up to mid-day of election day. However, the COMELEC made an exception to candidates who withdraws his candidacy and set the deadline of filing of the certificate of candidacy of his substitute until 14 December 2009 only.118 The early deadline was supposedly “to enable the inclusion of the substitute candidate’s name in the ballot.”119 At that time, the COMELEC was struggling on the interpretation of the rules on substitution, which had been a subject of several amendments.
Section 12 of Rep. Act No. 8436 states that in case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidate shall be considered as votes for the substitute. However, section 12 of a later law, Rep. Act No. 9006, provided that votes for a substituted candidate shall be considered stray unless the substitute has the same family name. This very same provision mandated that spaces be provided in the ballots where the voter may write the name of the substitute if he wishes to vote for the latter. Section 12 of Rep. Act No. 9006 was deemed to have amended section 12 of Rep. Act No. 8436, an inconsistent provision, based on the following ‘standard’ repealing clause in Rep. Act No. 9006:
“Section 14. Repealing Clause. – Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.” (Emphasis supplied).
Thereafter, Congress enacted Rep. Act No. 9369, amending many portions of Rep. Act No. 8436. It did not however, touch upon section 12 of Rep. Act No. 8436, as originally crafted.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 118 COMELEC Resolution No. 8678, Sec. 13. 119 Kristine L. Alave, “Comelec issues new guidelines for candidate substitution,” Inquirer.net, 9 October 2009.
The plain import of the legislative developments on the rule on substitution is that the provision of Rep. Act No. 9006 is controlling. This interpretation posed problems for the COMELEC as it chose not to provide the writing in of substitute candidates in the chosen AES. The COMELEC initially sought the help of Congress to make the necessary amendments to the law120 but it became increasingly clear that Congress would not be able to pass said amendments in time. In order to solve the problem on substitution of candidates after the ballots have been printed, the COMELEC issued Minute Resolution No. 10-500 on 20 April 2010, to wit:
“x x x the Commission RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Commissioner Rene V. Sarmiento that notwithstanding the provisions of section 12 of Republic Act No. 9006, the rule on substitution pursuant to section 12 of Republic Act No. 8436 hereunder quoted to wit:
Section 12. Substitution of Candidates
‘In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered votes for the substitutes.’
is reinstated and effective, absent any express provision in Republic Act 9369 to the contrary.
“There is therefore a rule on substitution, Sec. 12 of R.A. 8436, without any need for legislative action.”
By the COMELEC’s interpretation, Rep. Act No. 9369 reinstated by silence the original sec. 12 of Rep. Act No. 8436, and repealed again by silence section 12 of Rep. Act No. 9006.
The COMELEC’s strained interpretation may have solved a very practical problem but it is contrary to the established rules on statutory construction.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 120 Lilybeth G. Ison “Solon wants amendment of election law on substitution of candidates,” Balita, 29 November 2009.
! --- 38 ---! !
3. When a Person Becomes a “Candidate”
The Omnibus Election Code fixes the date for the filing of the certificates of candidacy which is “any day from the commencement of the election period but not later than the day before the campaign period.”121 A person becomes a candidate at the moment he files his certificate of candidacy.122
As a contingency measure for the adoption of an automated election system, section 13 of Rep. Act No. 9369 authorized the COMELEC to set an earlier deadline for the filing of certificates of candidacy. However, a person who files his certificate of candidacy within this earlier period shall only be considered as a candidate at the start of campaign period for which he filed his certificate of candidacy,123 to wit:
“For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.”
The above-quoted provision spurred controversies concerning the rules on pre-mature campaigning and the automatic resignation of appointive officials, as the COMELEC set the deadline for filing of certificates of candidacy for the 10 May 2010 automated elections
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 121 BATAS PAMBANSA BLG. 881, SEC. 75. 122 BATAS PAMBANSA BLG. 881, SEC.79 (a). “The term ‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties.” 123 REP. ACT NO. 9369, SEC. 13, amending REP. ACT NO. 8436, SEC. 11. ! --- 39 ---! ! on 1 December 2009,124 well before the campaign period on 9 February to 8 May 2010.125
a. Rules on Premature Campaigning
Ironically, section 13 of Rep. Act No. 9369 was first interpreted by the Supreme Court in Penera v. COMELEC,126which involved a candidate in the 2007 manual elections. Rosalinda Penera, a candidate for mayor in Sta. Monica, Surigao Del Norte was disqualified by the COMELEC for conducting a motorcade before the start of the official campaign period. COMELEC construed the motorcade to be premature campaigning as defined in section 80 in relation to section 79 (b) of the Omnibus Election Code.127
Invoking section 13 of Rep. Act No. 9369, Penera argued that she cannot be disqualified for premature campaigning as she was not yet considered a candidate before the start of the campaign period. In a Decision dated 11 September 2009, the Supreme Court upheld Penera’s disqualification because when Penera officially became a candidate at the start of the campaign period, her previous actions ripened into premature campaigning. However on reconsideration, the Supreme Court overturned its earlier decision and ruled in favor of Penera. The Supreme Court this time said that the proviso “unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the aforesaid campaign period” means that “the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts” such that “[B]efore the start of the campaign period, the same partisan political acts are lawful.”
The practical import of the Supreme Court’s new decision is that the rule on premature campaigning is already obliterated from the statute books – an implication that did not settle well with many
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 124 COMELEC Resolution No. 8678, Sec. 5 as amended by COMELEC Resolution No. 8692. 125 COMELEC Resolution No. 8646. 126 G.R. No. 181613, 11 September 2009. 127 Violation of BATAS PAMBANSA BLG. 881, SEC. 80 is one of the grounds for a Petition for Disqualification under BATAS PAMBANSA BLG. 881, SEC. 68. ! --- 40 ---! ! sectors including the COMELEC, which openly expressed its dismay with the decision.128
b. Automatic Resignation of Appointive Officials
The issue on when a person becomes a candidate was again raised in Quinto v. COMELEC,129 albeit in the context of the automatic resignation of appointive officials.
Section 13 of Rep. Act No. 9369 provides that “any person holding public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of the certificate of candidacy.”130
Implementing this provision, COMELEC promulgated Resolution No. 8678 which reads:
“SEC. 4. Effects of Filing Certificates of Candidacy. - a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.”
Eleazar Quinto and Gerino A. Tolentino, Jr., both appointed public officials, questioned COMELEC Resolution No. 8678 before the Supreme Court, contending that: (1) they should not be considered resigned from the moment of filing of their certificates of candidacy as they are not yet considered a “candidate;” (2) that “automatic
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 128 Kristine L. Alave, “Open Season: Comelec dismayed by SC ruling on premature campaigning,” Inquirer.net, 27 November 2009.
In its Decision on 1 December 2009, the Supreme Court did not discuss the first issue concerning the effectivity of the automatic resignation, i.e., whether the same is reckoned from filing of the certificate of candidacy or from the start of the campaign period. Going straight to the equal protection argument, the High Court said that the provision on automatic resignation of appointive officials is unconstitutional as “there is no valid justification to treat appointive officials differently from the elective ones.” The Supreme Court also ruled that the challenged provision also suffers from the infirmity of being overbroad for the following reasons: (1) the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not; and (2) the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, and whether they be in the national, municipal or barangay level.
The December 2009 Quinto decision spurred the filing of certificates of candidacy from appointive public officials, prompting the Supreme Court to reverse itself in resolving the Motion for Reconsideration on its earlier decision. The Court noted –
“Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts. Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces. Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009 – even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, who, in turn, act as Vice- Chairmen of the respective Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor.”
The Supreme Court further said that substantial distinctions exist between elective officials and appointive officials such that while
! --- 42 ---! ! elective officials occupy their office by virtue of the mandate of the electorate for a definite term, appointive officials hold their office by virtue of their designation thereto by an appointing authority. The Supreme Court also ruled that “deemed-resigned provisions” substantially serve governmental interests, and are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office, to wit: (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity.
Moreover, the Supreme Court ruled that the danger of appointive officials using their positions to promote their own candidacy exists at the various levels of the bureaucracy, regardless of the nature of the elective position sought by them.
C. DISPUTES RELATING TO CRIMINAL PROSECUTION OF ELECTION OFFENSES
With the advent of automation, a host of additional election offenses were added to those already existing in the statute books. Needless to state, the rules of procedure in the criminal prosecution of violation of election laws were not altered by automation.
Sections 261 and 262 of the Omnibus Elections Code enumerates what are considered election offenses131 which are punishable by not less than one year imprisonment but not more than six year, without probation, plus disqualification from public office and right to suffrage.132
Section 29 of Rep. Act No. 8436, as amended by Rep. Act No. 9369,133 punishes the following acts, whether or not said acts affect
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 131 Other election laws also specify election offenses that are penalized in accordance with BATAS PAMBANSA BLG. 881. See REP. ACT NO. 7166, as amended; REP. ACT NO. 9006; REP. ACT NO. 8295; REP. ACT NO. 8189. 132 BATAS PAMBANSA BLG. 881, SEC. 264. 133 REP. ACT NO. 9369, SEC. 28. ! --- 43 ---! ! the electoral process or results, with imprisonment of eight years and one day to twelve years without possibility of parole, and with perpetual disqualification to hold public office and deprivation of the right of suffrage, including perpetual disqualification from holding any non-elective public office:
(a) Utilizing without authorization, tampering with, damaging, destroying or stealing:
(1) Official ballots, election returns, and certificates of canvass of votes used in the system; and (2) Electronic devices or their components, peripherals or supplies used in the AES such as counting machine, memory pack/diskette, memory pack receiver and computer set;
(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information;
(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;
(d) Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers;
(e) Presentation by the citizens' arm of tampered or spurious election returns;
(f) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens' arm their copy of election returns; and
(g) The failure to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part the election officer concerned.
! --- 44 ---! !
Rep. Act No. 9369 also introduced a new election offense termed as electoral sabotage.134 The following acts are classified as electoral sabotage which is punishable by life imprisonment:
(a) When tampering, increasing or decreasing of votes or the refusal to credit the correct votes and/or to deduct tampered votes are perpetrated on a large scale or in substantial numbers;
(b) When the tampering, increase or decrease of votes perpetrated or the refusal to credit the correct votes or to deduct tampered votes, is/are committed in the election of a national elective office which is voted upon nationwide and the tampering shall adversely affect the results of the election to the said national office to the extent that losing candidates are made to appear as winners.
(c) Regardless of the elective office involved, when the tampering is accomplished in a single election document or in the transposition of the figure or results from one election document to another and the number of votes involved exceed five thousand (5,000) votes, and that the same adversely affects the true results of the election; and
(d) Any and all other forms or tampering where the total votes involved exceed ten thousand (10,000) votes.
Libertás was unable to secure data on election offenses filed in relation with the 10 May 2010 automated election.
D. PRE-PROCLAMATION CONTROVERSIES
Pre-proclamation petitions and petitions for annulment of proclamation are similar remedies involving the same grounds, except that the former is filed before the proclamation and the latter, after the proclamation.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 134 REP. ACT NO. 9369, SEC. 42, amending REP. ACT NO. 6646, SEC. 27(b). ! --- 45 ---! !
The Omnibus Election Code allows any candidate or any registered political party or coalition of political parties to file a pre- proclamation petition on the following grounds:135! ! a. Illegal composition or proceedings of the board of canvassers;
b. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in section 233 [when election returns are delayed, lost, destroyed], section 234 [when there are material defects in the election returns], section 235 [when election returns appears to be tampered with or falsified] and section 236 [where there are discrepancies in the election returns] of the OEC;
c. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and
d. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.
The 1993 COMELEC Rules of Procedure provides another ground for a pre-proclamation controversy – correction of manifest errors.136
In case the petition assails the composition or proceeding of the BOC, the same may be instituted with the BOC or directly with the Commission.137 During the pendency of the pre-proclamation proceedings, the BOC shall suspend the canvass unless otherwise ordered by the Commission.138
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 135 BATAS PAMBANSA BLG. 881, SECS. 241 & 243. 136 Rule 27, Sec. 4(e). 137 REP. ACT NO. 7166, SEC. 17 138 BATAS PAMBANSA BLG. 881, SEC. 244; COMELEC 1992 Rules of Procedure, Rule 27, Sec. 5(f) and Sec. 8(c). ! --- 46 ---! !
However, for elections for President, Vice-President, Senators and Member of the House of Representatives, no pre-proclamation case shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be, expect in the following instances:139
a. There is a discrepancy in other authentic copies of the certificate of canvass or in any of its supporting document such as statement of votes by city/municipality/by precinct or discrepancy in the votes of any candidate in words and figures in the certificate;
b. There is a discrepancy in the votes of any candidate in words and figures in the certificates of canvass against the aggregate number of votes appearing in the election returns of precincts covered by the certificate of canvass;
c. When the certificate of canvass, duly certified by the board of canvass of each province, city of district, appears to be incomplete; and,
d. When it appears that any certificate of canvass or supporting statement of votes by city/municipality or by precinct bears erasures or alteration which may cast doubt as to the veracity of the number of votes stated therein, and may affect the result of the election.
1. Limitations on the Grounds
Rep. Act No. 9369, which is the legal basis for the general framework for automated elections, did not amend the provisions of the Omnibus Election Code on pre-proclamation controversies. However, for the 10 May 2010 automated election, the COMELEC, thru Resolution No. 8804140 limited the grounds that may be raised in a pre proclamation petition to the following: (a) Illegal composition of the BOC, or (b) illegal proceedings of the BOC (i.e. precipitate
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 139 REP. ACT. NO. 9369, SECS. 37 & 38, amending REP. ACT NO. 7166, SECS. 15 & 30. "#$ !“Rules of Procedure on Disputes in an Automated Elections System,” 22 March 2010. ! --- 47 ---! ! canvassing, terrorism, lack of sufficient notice to the members of the BOC's, and improper venue).141
The reason for the limitation of the grounds was purportedly to speed up delivery of the results of the votes.142
From the roundtable discussions and focused group discussions among experts and practitioners prior to the promulgation of COMELEC Resolution No. 8804, there was a consensus to retain the provisions on incomplete, erroneous or fraudulent election returns and certificates of canvass but the same must be conformed to the automated election. The following grounds from pre-proclamation controversy were thus proposed for the draft COMELEC resolution:
a. Illegal composition of the Board of Canvassers (BOC); b. Illegal proceedings of the BOC; c. When the election returns or certificate of canvass, in appropriate cases, which are electronically transmitted for canvass: c.1. Are incomplete; c.2. Contain votes or data that are different from those reflected in the other copies thereof, whether printed or electronic ; c.3. Have come from non-existent precincts; or c.4. Not from the appropriate PCOS machines. c.5. Not from the appropriate CCU d. When the votes in the same election return or certificate of canvass is tabulated more than once; e. When there are discrepancies in the figures reflected in the statement of votes and those in the certificate of canvass; f. When falsified election returns or certificate of canvass have been canvassed; and g. When the Central Canvassing Unit used for Canvassing is not the one officially appropriated by COMELEC for canvassing.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 141 COMELEC Resolution No. 8804, Rule 3, Sec. 1. 142 Kristine Alave, “Automated polls spawn automatic protests,” Inquirer.net, 26 May 2010.
The COMELEC, however, rejected these suggestions principally on the premise that the possible discrepancies or errors contemplated will never occur.
On hindsight, correction of manifest errors or discrepancies in the election returns should have clearly remained a ground for a pre- proclamation petition. The need for said retention is demonstrated in the case of the erroneous transmission to the BOC of the Final Testing and Sealing (FTS) results, instead of the actual election results, which error occurred in at least fifty seven provinces per report.143
Section 12 of Rep. Act No. 9369144 requires that before voting starts, there must be an examination and testing of the equipment and device to be used for voting and counting using test ballots and test forms. In view of this, the COMELEC thru Resolution No. 8785,145 provided the rules of procedure for the final testing and sealing of the PCOS machines. It required that the FTS must be made at least three days before 10 May 2010, using ten test ballots which will be fed and counted by the PCOS machine.
In the course of the transmission of precinct election results to the BOC after the voting closed during the 2010 election, COMELEC was advised of several instances where the FTS results were transmitted instead of the actual election result. In light of the fact that this “error” is not an issue involving illegal composition or illegal proceeding of the BOC, it is not covered by the rules of pre- proclamation controversies; hence, many were at a loss on the proper course of action to take to remedy the situation. As remedial measures, COMELEC issued Resolution No. 8914146 and Resolution No. 8919147 outlining procedures for correcting the FTS files erroneously uploaded to the consolidation and canvassing services. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 143 “Erroneous COCs in 57 provinces blamed on Smartmatic’s counting.”
However, not all BOCs were able to apply these Resolutions and these BOCs proclaimed the winning candidates based on such erroneous results. In this regard, two pre-proclamation cases were filed because of the erroneous transmission of the FTS results in the Municipality of Pinukpuk, Kalinga.148 The Municipal BOC informed the COMELEC in a letter dated 15 May 2010 that it had proclaimed winning candidates based on electronically transmitted results containing the erroneous FTS results, and transmitted such erroneous results to the PBOC and National Board of Canvassers. On 10 June 2010, the COMELEC issued Resolution No. 8989149 instructing all BOCs concerned to initiate annulment of proclamation proceedings and proclaim the rightful winners in the affected positions. The said resolution was made to apply to all candidates in similar situation, viz.:
“NOW, THEREFORE, the Commission RESOLVED, as it hereby RESOLVES:
1. To initiate annulment of proclamation proceedings in so far as the aforesaid proclaimed candidates;
2. That after due notice and hearing, annul all proclamation and direct the MBOC, CBOC or PBOC concerned to proclaim the rightful winners, in the affected positions; and,
3. To make this Resolution applicable to all candidates similarly situated.” (Emphasis supplied).
Libertás was unable to secure access to the dockets of the pre- proclamation cases filed before the COMELEC arising from the 10 May 2010 automated election, and therefore, cannot determine how many other pre-proclamation cases involved correction of erroneous FTS transmission and which were resolved by virtue of COMELEC Resolution No. 8989.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 148 SPC 10-034 and SPC 10-046. 149 “In the Matter of Annulling the Proclamation of Winning Candidates Where Field Testing and Sealing Results Instead of Election Day Results Have Been Transmitted to the Municipal/City or Provincial Board of Canvassers.” ! --- 50 ---! !
2. Illegal composition of the Board of Canvassers
In an automated election,150 the BOC shall now be assisted by an information technology (IT)-capable person authorized to operate the Consolidating and Canvassing System, or a ‘CCS Operator.’ In section 1, Rule 4 of COMELEC Resolution No. 8804, the IT-capable person or CCS operator, who is required to assist the BOC, shall be included as among those whose lack of qualification may be questioned for purposes of pre-proclamation i.e. illegal composition or proceeding of the BOC. This appears to be a welcome move from the COMELEC considering the important role that the IT- capable persons or CCS operators did in fact play in the 10 May 2010 automated election.
Again for lack of access to COMELEC records on pre-proclamation controversies, Libertás is unaware of any pre-proclamation controversy that questioned the qualifications of the CCS Operator.
There was however, one more IT-capable person who came into the picture during election - the Smartmatic-trained and hired technical support staff or PCOS technician whom the BEI may call for assistance to address technical problems with the PCOS machine.151 Issues were raised not only with regard to the competence of these technicians but their free “access” to the PCOS machines, raising suspicions on their possible role in election fraud.
3. No Suspension of Proclamation
Pursuant to COMELEC Resolution No. 8804, the proclamation of the winning candidates will not be suspended despite the filing of pre- proclamation petitions.152 The filing of a Notice of Appeal to the COMELEC of an adverse decision by the BOC on such pre- proclamation petitions will also not suspend the formal proclamation of the official results of the election.153
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 150 REP. ACT NO. 9369, SEC. 5, amending REP. ACT NO. 8436, SEC. 4. 151 COMELEC Resolution No. 8786 Sec. 28(d) and COMELEC Resolution No. 8839 Sec. 1(10). 152 COMELEC Resolution No. 8804, Rule 4, Sec. 5(a)(a.4). 153 COMELEC Resolution No. 8804, Rule 4, Sec. 5(a)(a.5). ! --- 51 ---! !
This is contrary to section 244 of the Omnibus Election Code which provides as follows:
“Section 244. Contested composition or proceedings of the board. - When the composition or proceedings of the board of canvassers are contested, the board of canvassers shall, within twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely affected, may appeal the matter to the Commission x x x. During the pendency of the case, the board of canvassers shall suspend the canvass until the Commission orders the continuation or resumption thereof and citing their reasons or grounds therefor.”(Emphasis supplied).
While the COMELEC retained the remedy of annulment of proclamation, the same was again limited solely to illegal proceedings of the BOC discovered after proclamation and filed before the COMELEC within ten days from the proclamation.154
4. Pre-Proclamation Controversies Filed
There was a marked reduction in pre-proclamation controversies in the 10 May 2010 automated election. Observers attributed this phenomenon to the limitations on the grounds for a pre- proclamation petition.
Table 1. Pre-proclamation Controversies Arising From 1998 to 2010 Year of Elections Pre-Proclamation Controversies Filed 1998 346 2001 291 2004 311 2007 321 2010 99
By operation of law, all pre-proclamation controversies are deemed terminated by 30 June 2010 unless the COMELEC orders the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 154 COMELEC Resolution No. 8804, Rule 4, Sec. 6. ! --- 52 ---! ! proceedings to continue.155 Unlike in 2007,156 the COMELEC did not issue a Resolution listing those pre-proclamation cases arising from the 10 May 2010 automated elections that the Commission will continue to hear after 30 June 2011. Instead of treating pre- proclamation cases as terminated by 30 June 2010, all such cases ‘survived’ and continued to be heard by the Commission after 30 June 2011. For lack of access to records, Libertás cannot determine how many of these pre-proclamation cases remain pending as of end of October 2011, although we were informed that many had been withdrawn, while several remain pending for resolution.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 155 REP. ACT NO. 7166, SEC. 16. 156 COMELEC Resolution No. 8212. ! --- 53 ---! !
! --- 54 ---! !
CHAPTER IV PROCEDURES IN ELECTION CONTESTS UNDER THE PCOS AES
This Chapter discusses the nature of election contests in the Philippines, and outlines the procedures adopted by the adjudicative bodies in responding to the challenges posed by the 10 May 2010 automated election. More particularly, it focuses on the procedures for election protests where more substantial changes have been introduced. This chapter also examines which of the processes of the different adjudicative bodies converge and diverge. Such examination will serve as the backdrop for the analysis of the challenges encountered by the litigants and even the adjudicators themselves, as discussed in the next Chapter.
A. NATURE OF ELECTION CONTESTS
An election contest is a post-election remedy available to a defeated candidate to challenge either the certification of the candidate as the “winner” or his eligibility to hold the position for which he/she was elected. There are two types of election contests: (1) election protests; and (2) petitions for quo warranto.
An election protest, as defined earlier, is “a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns.” This remedy raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office.”157 On the other hand, a petition for quo warranto refers to an election contest concerning the eligibility of elective officials to hold the office to which they were elected, and involves issue on whether they possess all the qualifications and none of the disqualifications prescribed by law.158
Election contests are distinct from ordinary civil cases. Considered “special” and “expeditious” cases,159 the proceedings in election contests are summary in nature.160 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 157 Dumayas v. COMELEC, G.R. No. 141952-53, 20 April 2001. 158 Id. 159 Estrada v. Sto. Domingo, 28 SCRA 890 (1969). ! --- 55 ---! !
B. ELECTION PROTEST AND THE CHALLENGE OF AUTOMATION
It should be emphasized that none of the various election laws actually stipulate the grounds for which an election protest may be filed. The rule therefore that an election protest must be predicated on the allegations of fraud and irregularities in the casting and counting of the ballots or in the preparation of the returns, was established only by case precedents. In the 1931 case of Aquino v. Calabia and Sahagun, the Supreme Court said -
“Our laws do not specify the grounds upon which protests of this kind are to be based; but an illustrious member of this court, Justice Ignacio Villamor, in his work entitled Tratado de Elecciones (A Treatise on Elections), in sec. 733, page 453, aptly and ably sums them up as follows:
‘Every protest must be based upon those grounds which, according to law, would quash an election, invalidate it, or change its result. The first class refers to ineligibility of the winning candidate; the second, to the non-compliance of the mandatory provisions of the law, that is, the violation of the proceedings essential to election; and the last, to frauds committed at the polls or anomalies in the count of votes, which affect the election results.’161
Since the purpose of an election protest is to ascertain whether the candidate proclaimed is really the lawful choice of the electorate, it is imperative that the fraud and irregularities during the election must have resulted in defeating the true will of the electorate. If this condition does not exist, then the proper remedy would be to prosecute the winning candidate for commission of a criminal election offense with prayer for his disqualification to hold public office.
In manual elections, allegations of fraud related to the casting of ballots or votes generally involve the following: (1) that one person had accomplished more than one ballot; (2) that two or more persons have accomplished one ballot; (3) that there were markings !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 160 Enojas, Jr. v. COMELEC, 283 SCRA 229 (1997). 161 G.R. No. L-35857, 26 August 1931. ! --- 56 ---! ! in the ballot; (4) that fake ballots were used; (5) that a registered voter voted more than once; and (6) that a person other than the real voter accomplished the ballot. Meanwhile, allegation of fraud or irregularities in the counting of the votes normally involves misreading or misappreciation of the ballots. Allegation of fraud or irregularities in the accomplishment of the election returns is essentially triggered by the comparison of the figures in the election returns as against those contained in the statements of votes or certificates of canvass.
In sum, the allegations of fraud or irregularities which may give rise to an election protest are based on observable processes directly relating to the casting or the counting of votes and the preparation of the election returns and certificates of canvass. Although the fraud and irregularities alleged may have been observed, they are in most cases only formally established in a protest wherein a re-examination of the ballots is undertaken during revision proceedings.
The system implemented for the 10 May 2010 automated election posed new challenges to the parties and the adjudicators alike in terms of proving fraud, and in determining the intent of the voter. These challenges are rooted from the inherent unobservable processes of vote counting, canvassing and consolidation of results done by the PCOS and CCS machines. Furthermore, unlike in a manual election where ballots are accepted as presumptively genuine documents, the PCOS system adopted in the 2010 automated election may reject ballots, even though genuine and accomplished by legitimate voters for reasons such as the existence of moisture, improper handling of the ballot, accidental ink stains and perforation or tear in the ballot, among others.
Simply stated, the procedural and substantive issues that may be raised in the context of an automated election may radically depart from the issues that may be raised in a manual election. The evidence needed to support allegations of fraud or even of an innocent miscounting would necessarily vary. Moreover, a new set of voter intent rules would have to govern as questions on voter intent which are resolved through the analysis of handwritings on the ballot under a manual election (the so-called “appreciation of the ballots”) may no longer apply. The automation of the election also makes it
! --- 57 ---! ! essential for the litigants and the adjudicators to be familiar with the rules on electronic evidence.
It bears emphasis that while the different adjudicative bodies are governed by their own rules of procedure, the basic guidelines for resolving issues pertaining to the appreciation of the ballots under a manual election are provided in section 211 of the Omnibus Election Code, and supplemented by judicial precedents. Hence, while there might be some divergence in certain processes, consistent rules are applied by these adjudicative bodies with respect to determining voter intent, which is at the core of most electoral protests. In addition, for more than a century that the country has been conducting manual elections, there has evolved a uniform set of evidentiary rules required to prove a claim of error or fraud. Many of the cases decided by the adjudicative bodies have eventually reached the Supreme Court thereby establishing a wealth of jurisprudence which serves as guidelines in the resolution of other cases lodged before them.
In contrast, Rep. Act No. 9369 provides no guidelines on electoral protests in the context of an automated election. Compounded by the unfamiliarity with the inner workings of the technology used in an AES, the lack of legislative guidelines, particularly on recount and revision processes, has forced the adjudicative bodies to adopt their own procedures on this specific matter.
It is worth noting that while Rep. Act No. 9369 allowed the COMELEC to adopt an automated election in all succeeding electoral exercises beginning year 2007, none of the adjudicative bodies attempted to amend or enact rules of procedure applicable to an AES until a few weeks before May 2010.162
It was barely two months prior to the 2010 autonated election that COMELEC promulgated Resolution No. 8804 to govern pre- proclamation controversies and election protests under the PCOS AES system. The Supreme Court followed suit with the promulgation of A.M. No. 10-4-1-SC163 which applies to election contests before !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 162 In fact, the Senate Electoral Tribunal (SET) has not yet promulgated new rules to govern election contests arising from an AES. Proceedings in the Tribunal is still governed by its 2003 Revised Rules. 163 2010 Rules of Procedure for Municipal Election Contests, 27 April 2010. ! --- 58 ---! ! the Regional Trial Courts involving municipal elective positions under the PCOS AES.164 Barely a week before the election, the Supreme Court promulgated A.M. No. 10-4-29-SC165 which governs election contests before the Presidential Electoral Tribunal.
On 30 November 2010, or almost six months after the 10 May 2010 automated election, COMELEC issued Resolution No. 9104 which amended the rules of revision under COMELEC Resolution No. 8804.
On 13 February 2011, the HRET came out with its own rules of procedure, which is applicable to election protests under the AES.166 Having been promulgated months after the deadline for filing election protests, its 2011 Rules were nevertheless made to apply to pending election cases “except when substantive rights are affected as may be determined by the Tribunal.”167
On 17 March 2011, COMELEC came out with COMELEC Resolution No. 9164, again amending the rules of revision under COMELEC Resolution No. 8804.
C. PROCEDURES IN ELECTION PROTESTS
1. Filing of the Election Protest
a. Who may file Protest
An election protest is triggered by the filing of a petition by a defeated candidate against the proclaimed winner. The Omnibus Election Code provides that “any candidate who has duly filed a certificate of candidacy and has been voted for the same office” may file an election protest.168 At present, however, only the SET and the HRET adheres to this provision.169 The rules applicable to the PET, the COMELEC, and second level courts restrict the persons who may file an election protest, to wit: (1) in case of a single-slot position, only the candidate who was voted for the same office and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 164 Rule 1, Sec. 1. 165 2010 Rules of the Presidential Electoral Tribunal (PET), 4 May 2010 166 2011 Rules of the HRET, 10 February 2011. Annexed to the said Rules is the Guidelines on the Revision of Ballots dated 19 January 2011. 167 2011 Rules of the HRET, Rule 79. 168 BATAS PAMBANSA BLG. 881, SECS. 250-252. 169 2003 Revised Rules of the SET, Rule 14; 2011 Rules of the HRET, Rule 16. ! --- 59 ---! ! who received the 2nd or 3rd highest number of votes may file an election protest170; and (2) for multi-slot position, the COMELEC and second level courts provide that only a candidate who was voted for the same office and who was among the next four candidates following the last ranked winner duly proclaimed may file election protest.171 This limitation first earlier appeared in the 2005 Rules of the PET and in A.M. No. 07-4-15-SC.172
b. Period of Filing
There is no uniform period for filing election contests. It is observed though, that in enacting new rules for the 10 May 2010 automated election, only the HRET lengthened the period of filing election contests from ten to fifteen days from the date of proclamation.173 Election protests may be filed within thirty days from proclamation in the case of the PET;174 fifteen days with the SET;175 and ten days for both the COMELEC176 and the RTCs.177
Table 2. Period to Filed Election Contest Period to File Action Elective Office Adjudicative Body Election Quo Protest warranto Municipal 10 days from 10 days from Regional Trial Court Officials proclamation proclamation Regional, 10 days from 10 days from Provincial, and COMELEC proclamation proclamation City Officials Members of House of Representatives 15 days from 15 days from House of Electoral Tribunal proclamation proclamation Representatives Members of 15 days from 10 days from Senate Electoral Tribunal Senate proclamation proclamation President and Presidential Electoral 30 days from 10 days from Vice President Tribunal proclamation proclamation !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 170 2010 Rules of the PET, Rule 15; COMELEC Resolution No. 8804, Rule 6, Sec. 2; A.M. No. 10-4-1-SC, Rule 2, Sec. 4. 171 COMELEC Resolution No. 8804, Rule 6, Sec. 2; A.M. No. 10-4-1-SC, Rule 2, Sec. 4. 172 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials. 173 2011 Rules of the HRET, Rule 16. 174 2010 Rules of the PET, Rule 15. 175 2003 Revised Rules of the SET, Rule 14. 176 COMELEC Resolution No. 8804, Rule 6, Sec. 3. 177 A.M. No. 10-4-1-SC, Rule 2, Sec. 7. ! --- 60 ---! !
2. Contents of the Petition
All the adjudicative bodies require that the election protest or petition be verified.178 The 2003 Revised Rules of the SET does not have a provision specifying the contents of a protest, but the other rules now provide that a protest must contain at least the following facts: (a) the position involved; (b) the date of the proclamation; (c) the number of votes credited to the parties per proclamation; (d) the precincts contested; and (e) a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.179 The requirements on the contents of a protest or petition first appeared in A.M. No. 07-4-15- SC.180
3. Payment of Filing Fee and Cash Deposits
All the adjudicative bodies require the payment of filing fees and when warranted, of a cash deposit to cover the administrative costs of bringing in the election paraphernalia and for revision/recount proceedings. The filing and other fees collected from the parties for election contests arising from the 10 May 2010 automated election are summarized in Table 3.181
The rules of both the COMELEC and the RTCs provide that failure to make the cash deposit within the prescribed time limit shall result in the automatic dismissal of the protest or counter-protest.182
The PET and the HRET on the other hand, provides that they “may” dismiss the protest or counter-protest “or take such action as it may deem equitable under the circumstances.”183
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 178 2010 Rules of the PET, Rule 15; 2003 Revised Rules of the SET, Rule 14; 2011 Rules of the HRET, Rule 15; COMELEC Resolution No. 8804, Rule 6, Sec.5; A.M. No. 10-4-1- SC, Rule 2, Sec. 6. 179 2010 Rules of the PET, Rule 17; 2011 Rules of the HRET, Rule 16; COMELEC Resolution No. 8804, Rule 6, Sec.7; A.M. No. 10-4-1-SC, Rule 2, Sec. 10. 180 Rule 2, Sec. 11. 181 Protests before the MTC are for Barangay positions only which had a separate election held last October 25, 2010. Filing fee is P3,000.00, additional fee is based on Rule 141 of the Rules of Court, and cash deposit is P1,000.00 for each precinct but not less than P25,000.00 182 COMELEC Resolution 8804, Rule 11, Sec. 2(b); A.M. No. 10-4-1-SC, Rule 7, Sec. 2(b). 183 A.M. No.10-4-29-SC, Rule 34; 2003 Revised Rules of the SET, Rule 31; 2011 Rules of the HRET, Rule 33. ! --- 61 ---! !
Table 3. Costs of Election Protests Filing Additional: claim Cash deposit Fees for Damages & attorney’s fees PET P100,000 Schedular: From If there is no need for P240.00 to ballot boxes and other A.M. No. 10- P1,200.00 plus P100 election documents, 4-29-SC, for each P1,000.00 P20,000.00; Rules 32-35 in excess of Otherwise, P500.00 for P150,000.00 each precinct. SET P10,000 Schedular: From If there is no need for 2003 Revised P120.00 to P600.00 ballot boxes and other Rules of the plus P50.00 for each election documents, SET, Rule 29 P1,000.00 in excess P5,000.00; of P150,000.00 Otherwise, P500.00 per precinct Schedular: From If there is no need for HRET P500.00 to ballot boxes and other P1,500.00 plus election documents, 2011 HRET P10,000 P50.00 for each P10,000.00; Rules, Rules P1,000.00 in excess Otherwise, 3,000.00 per 31-33 of P150,000.00 clustered precinct Rule 141, Rules of P1,500.00 for each Court precinct but not less than Schedular: From P25,000.00. P750.00 to PP5,000.00 plus However, in Minute COMELEC P7.00 for every Resolution 10-0780 dated P1,000.00 until 17 August 2010, the P10,000 P7,500,000.00, then Comelec revised its rules Resolution plus P10.00 for on payment of cash No. 8804, every P1,000 deposit, to wit: Rule 11 beyond P7,500,000.00 (a) For single precinct – P1,500,00 (b) Per clustered precinct – P3,000,00 P1,000.00 for each RTC precinct but not less than Rule 141, Rules of P25,000.00 A.M. No. 10- P3,000 Court Plus 4-1-SC, Rule P25,000.00 for the cost of 7 bringing to court of the PCOS and storing and maintaining the PCOS, etc.
! --- 62 ---! !
4. Summary Dismissal
The rules of procedure of all the adjudicative bodies provides common grounds for the summary dismissal of an election protest, counter-protest or a petition for quo warranto, to wit: (a) the petition is filed beyond the period prescribed; (b) the filing fee is not paid within the period for filing the election protest or petition for quo warranto; and (c) in case of protest where a cash deposit is required, the cash deposit is not paid within the prescribed period.184
Insufficiency as to form and substance185 is another ground for summary dismissal in the PET, SET and HRET. The rules of the COMELEC and the RTCs provide for summary dismissal in case the petition is insufficient in form and content.186
The PET, SET and HRET, additionally provides as a ground for summary dismissal the non-legibility of the protest or petition or copies thereof and their annexes filed with the Tribunal.187
The COMELEC and the RTCs provide as an additional ground for summary dismissal lack of jurisdiction over the subject matter.188
5. Service of Summons
Following the receipt of the election protest, and if the same is not summarily dismissed, summons is served on the respondent/protestee. The rules of the PET and the SET do not indicate how summons shall be served, unlike those of the HRET, the COMELEC and the RTCs where personal or substituted service is specifically specified.189 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 184 2010 Rules of the PET, Rule 21(b), (e) & (d); 2003 Revised Rules of the SET, Rule 19(2), (3) & (4); 2011 Rules of the HRET, Rule 21(2), (3) & (4); COMELEC Resolution No. 8804, Rule 6 sec. 9(c), (d), & (e); A.M. No. 10-4-1-SC, Rule 2, Sec. 12(c), (d), & (e). 185 2010 Rules of the PET, Rule 21(a); 2003 Revised Rules of the SET, Rule 19(1); 2011 Rules of the HRET, Rule 21(1). 186 COMELEC Resolution No. 8804, Rule 6, Sec. 9 (b); A.M. No. 10-4-1-SC, Rule 2, Sec. 12 (b). 187 2010 Rules of the PET, Rule 21 (e); 2003 Revised Rules of the SET, Rule 19(5); 2011 Rules of the HRET, Rule 21(5). 188 COMELEC Resolution No. 8804, Rule 6, Sec. 9(a); A.M. No. 10-4-1-SC, Rule 2, Sec. 12(a). 189 2010 Rules of the PET, Rule 22; 2003 Revised Rules of the SET, Rule 20; 2011 Rules of the HRET, Rule 22; COMELEC Resolution No. 8804, Rule 7 Sec. 2; A.M. No. 10-4-1- SC, Rule 3, Sec. 2. ! --- 63 ---! !
The PET, SET and HRET do not indicate when summons is supposed to be served. The COMELEC rules provide a three-day period while the RTC rules require service of summons within twenty-four hours from the filing of the petition.190
6. Responsive Pleadings
a. Answer to the Petition/Filing of Counter-Protest
Upon receipt of the copy of the petition, the protestee is required to file his verified answer within the following periods: for contests filed in the PET, SET and HRET, the protestee is given a period of ten days albeit, he may be given an extension of another ten days for protests before the PET.191 For protests filed with the COMELEC and the RTCs, the protestee is given five days to file his answer.192 All of the rules provide that the protestee may incorporate a counter- protest in his answer, except the rules of the PET and HRET which allow the filing of a counter-protest in a separate pleading. Said counter-protest must be verified and filed within ten days from receipt of summons.193
b. Answer to the Counter-Protest
Upon receipt of an answer with counter-protest or an independently filed counter-protest, the protestant may file his answer to the same. The PET, HRET and SET gives the protestant a non-extendible period of ten days to file the answer while the COMELEC and the RTCs allow five days only likewise non-extendible.194
7. Preliminary Conference
Save for the SET, after the issues have been joined, all the adjudicative bodies now require the holding of a preliminary !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 190 Ibid. 191 2010 Rules of the PET, Rule 23; 2003 Revised Rules of the SET, Rule 22; 2011 Rules of the HRET, Rule 23. 192 COMELEC Resolution No. 8804, Rule 8, Sec. 1; A.M. No.10-4-1-SC, Rule 8, Sec. 1. 193 2010 Rules of the PET, Rules 23 & 24; 2003 Revised Rules of the SET, Rule 22; 2011 Rules of the HRET, Rule 23; COMELEC Resolution No. 8804, Rule 8, Sec. 1; A.M. No. 10- 4-1-SC, Rule 8, Sec. 1. 194 2010 Rules of the PET, Rule 24; 2003 Revised Rules of the SET, Rule 22; 2011 Rules of the HRET, Rules 23 & 24; COMELEC Resolution No. 8804, Rule 8, Sec. 2; A.M. No. 10- 4-1-SC, Rule 4, Sec. 2. ! --- 64 ---! ! conference to aid in the prompt disposition of the case.195 Filing of preliminary conference briefs prior to the conference is mandatory in the HRET, the COMELEC and the RTCs such that failure to file the brief or appear at the preliminary conference may result in the dismissal of the protest or counter-protest.196 The PET is silent in this regard. Under the existing SET rules, preliminary conference occurs when a hearing officer is designated by the Tribunal to receive evidence whereupon, he/she shall call the parties to a preliminary conference.197
8. Production and Custody of Election Documents
The PET, the COMELEC and the RTCs may issue a precautionary protection order198 simultaneous with the issuance of summons whereby the municipal treasurer and election officer are directed to take immediate steps to safeguard the integrity of all the ballot boxes and other election documents and paraphernalia.
Furthermore, all adjudicative bodies may order the immediate delivery of the ballot boxes and other election document and paraphernalia to its custody, if the allegations in the protest or counter-protest warrant the same.199 Such order shall issue within forty-eight hours from receipt of the answer to the counter-protest in case of the PET, the COMELEC and the RTCs.200 If the ballot boxes are also involved in other protests pending in other adjudicative bodies, the 2010 Rules of the PET provides that it shall have preferential custody201 while the rules of the SET and the HRET provide that efforts shall be exerted to synchronize examination and revision of the ballots with the other tribunals, COMELEC, and the courts.202 The rules of the COMELEC and the RTCs provide that !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 195 2010 Rules of the PET, Rule 29; 2011 Rules of the HRET, Rule 47; COMELEC Resolution No. 8804, Rule 13; A.M. No. 10-4-1-SC, Rule 13. 196 2011 Rules of the HRET, Rule 47(b) & (d); COMELEC Resolution No. 8804, Rule 13(3), (4), (5) & (6); A.M. No.10-4-1-SC, Rule 13(3), (4), (5) & (6). 197 2003 Revised Rules of the SET, Rule 50. 198 2010 Rules of the PET, Rule 36; COMELEC Resolution No. 8804, Rule 12, Sec. 1; A.M. No.10-4-1-SC, Rule 8, Sec. 1. 199 2010 Rules of the PET, Rule 37; 2003 Revised Rules of the SET, Rule 33; 2011 Rules of the HRET, Rule 35; COMELEC Resolution No. 8804, Rule 12, Sec. 2; A.M. No.10-4-1- SC, Rule 8, Sec. 2. 200 2010 Rules of the PET, Rule 37; COMELEC Resolution No. 8804, Rule 12, Sec. 2; A.M. No.10-4-1-SC, Rule 8, Sec. 2. 201 2010 Rules of the PET, Rule 37(d). 202 2003 Revised Rules of the SET, Rule 33; 2011 Rules of the HRET, Rule 35. ! --- 65 ---! ! such adjudicative bodies shall coordinate with and make appropriate request to the tribunals for temporary prior custody of the ballot boxes or for synchronization of revisions.203
9. Recount and Revision
Revision of ballots refers to that stage in an election protest when the actual recount and re-examination of contested ballots is made to determine the true intent of the voter as written therein.
In a manual election, re-appreciation of votes will reveal whether the BEI was correct in reading the ballots during the counting stage of the election. In an AES, a recount would necessarily show if the machine count was correct. Under the rules, then and now, revision is conducted prior to, or simultaneously with the reception of other evidence of fraud or irregularities. In other words, it is not mandatory to first establish a prima facie case of fraud and irregularity before a revision may proceed.
Rule 15 of COMELEC Resolution No. 8804 outlines the procedures for the conduct of recount of ballots for election contests in connection with the 10 May 2010 automated election, which the Supreme Court adopted for election protests in the PET and the RTCs:204
1. The Revision Committee (RC) shall determine whether the integrity of the ballots has been preserved. If so preserved, the RC shall open the ballot box and count the “valid” ballots followed by the counting of the torn, unused and stray ballots, as classified in the polling place.
2. The ballots shall be authenticated using the same PCOS machine actually used during the elections in the subject precinct or by another device certified by the Commission to be capable of performing the desired authentication requirement through the use of bar codes and UV ray code detection mechanism.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 203 COMELEC Resolution No. 8804, Rule 12, Sec. 2; A.M. No.10-4-1-SC, Rule 8, Sec. 2. 204 COMELEC Resolution No. 8804, Rule 15, Sec. 6; 2010 Rules of the PET, Rules 38 to 44; A.M. No. 10-4-1-SC, Rule 10. ! --- 66 ---! !
3. Revision shall be done “manually and visually” where the RC shall look at the ballot and count the votes for the contested position as registered therein.
In looking at the shades or marks used to register votes, the RC shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been made by the voter and shall be considered as such unless reasons exist that will justify their rejection. However, marks or shades which are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination. The rules on appreciation of ballots under section 211 of the Omnibus Election Code shall apply suppletorily when appropriate.
4. In the event that the RC determines that the integrity of the ballots and the ballot box were not preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct which is stored in the data storage device for the same precinct. The Commission shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the recount.
As aforesaid, the COMELEC subsequently promulgated Resolution No. 9104 amending the recount procedures in Rule 15 of COMELEC Resolution No. 8804. This Resolution mandates that use of the PCOS machine in the recount proceedings, thus:
1. A physical count of the ballots found inside the ballot box will be made and compared with the total number of ballots recorded on the election returns.
! --- 67 ---! !
If the number do not match with the election return, the total number of physical ballots shall be compared against the total number of picture image files of ballots found in the ballot image CF card;
If the physical count does not match the number of picture image files of the ballots in the ballot image CF card, the latter shall prevail.
Physical ballots that have no corresponding picture images shall not be included in the recount proceedings. On the other hand, if there are picture images with no corresponding physical ballots, the picture image files shall still be included in the recount proceedings.
2. If the physical number of ballots matches the total number of ballots recorded in the election returns, the authenticity of the ballots shall be validated with the use of the PCOS machine, by feeding the physical ballots in the PCOS machine which will contain the recount CF card. After all the ballots have been scanned, a new set of election returns shall be generated by the PCOS machine.
2.1. If the results of the recently generated election return matches the election returns generated during the 10 May 2010 automated election, the election protest or counter-protest shall be dismissed; and
2.2. If the results do not match, the ballots that were fed to the PCOS machine shall be compared with its corresponding picture image in the ballot image CF card to determine the reason for the discrepancy.
The results contained at the bottom-right of the picture image should match the shaded ovals on the physical ballot. If the results do not match, a presumption arises that the ballot box or ballots were tampered with or has been compromised. In such case, the physical ballots shall be compared oval by
! --- 68 ---! !
oval against the picture image to see where the discrepancy lies. In case of such a discrepancy, the picture image of the ballot and the results shown at the bottom-right of the picture image shall prevail.
In case a ballot accepted by the PCOS machine on 10 May 2010 is rejected by the PCOS machine during the recount, the same shall be re-fed into the PCOS machine in four (4) different orientations. If it is still rejected, the ballot should be fed into the contingency PCOS machine.
3. In the event that the integrity of the ballot box and the ballots were not preserved, as when there is proof of tampering or substitution, the RC shall refer to the Division of the Commission, which will finally decide as to whether the integrity of the ballot box and the ballots had indeed been compromised. If the Division finds that the integrity of the ballot box and the ballots was compromised, it shall order the RC to utilize the picture image files corresponding to the physical ballots contained in the tampered ballot box for recount purposes.
Not satisfied with the Rules of Revision in COMELEC Resolution No. 8804 as amended by COMELEC Resolution No. 9104, the HRET came up with its own 2011 HRET Rules as well as the HRET Guidelines on the Revision of Ballots adopting a manual recount as follows:
1. Each and every ballot shall be authenticated through the use of the PCOS machine actually used during the elections in the subject precinct or by another device certified by the COMELEC as one that can perform the desired authentication requirement through the use of bar codes and UV ray code detection mechanism.
2. The Head Revisor shall look at the shades or marks in the ballots, classify the VALID ballots into: Ballots for Protestant, Ballots for Protestee, Ballots for other Candidates and Stray Ballots.
! --- 69 ---! !
2.1. Valid ballots with two or more shades or marks used to register a vote for congressman, or without any shade or mark, shall be tentatively classified as Stray. Valid ballots with mark or shade less than 50% of the oval shall be tentatively classified as Stray. Issues on whether the shade or mark is within the 50% threshold shall be determined by feeding the ballot into the PCOS machine; if there is no PCOS machine, the ballot shall be tentatively classified as Stray. Any other questions pertaining to the application of the rules on appreciation of ballots shall be referred to the Tribunal’s designated over-all chairperson/legal consultant.
2.2. The Head Revisor shall give the ballots for Protestant to the Protestant’s revisor, and the ballots for the Protestee, to the Protestee’s revisor. Thereafter, the Head Revisor will give the ballots for Protestant to the Protestee’s revisor, while the ballots for the Protestee will be given to the Protestant’s revisor.
Challenged ballots shall be marked as exhibits by the Head Revisor.
Head Revisor will then give the ballots for other candidates to the Party revisors who may register a claim thereon. Claimed ballots shall be marked as exhibit by the Head Revisor.
Head Revisor will then give the Stray ballots to the Party revisors who may claim the same if there are legal grounds to do so. Claimed ballots shall be marked in evidence.
3. Unless picture images are used in applicable cases, Head Revisor shall retrieve from the ballot box the envelope containing the rejected ballots. The rejected ballots will be given to the Party revisors who may claim the same, if there are legal grounds to do so. The Head Revisor shall mark the claimed ballots in evidence. The ballots shall then be placed
! --- 70 ---! !
in properly labeled envelopes i.e. objected ballots, claimed stray ballots, claimed ballots for other candidates, rejected ballots, unobjected ballots and unclaimed ballots, which will be sealed.
4. If during the preliminary hearing set by the parties or the Commission, it was shown that the integrity of the ballots and ballot box were not preserved, i.e. there is proof of tampering or substitution, the Tribunal shall direct the printing of the picture images of the ballots of the subject precinct in the data storage device for the same precinct. A non-partisan technical expert provided by the Tribunal shall authenticate on the genuineness of the data or image.
As earlier mentioned, COMELEC thereafter promulgated Resolution No. 9164 reinstating Resolution No. 8804 but amending certain portions, viz.:
1. Before the opening of the ballot box, the RC shall note and record its condition, as well as make a determination as to whether the integrity of the ballot box has been preserved. In the event that there are signs of tampering or if the ballot box appears to have been compromised, the RC shall still proceed to open the ballot box and make a physical inventory of the contents thereof.
However, it is only when the RC, through its chairman, determines that the integrity of the ballots has been preserved or that no signs of tampering of the ballots are present, will the recount proceed.
2. Prior to the actual conduct of the recount of the votes, the RC must authenticate each and every ballot to make sure that they are genuine. The authentication shall be through the use of PCOS machine or through any other device capable of performing the desired authentication requirement through the use of the bar codes and the UV ray code detection mechanism, at the option of the Commission.
3. The RC shall segregate, classify and count the ballots as:
! --- 71 ---! !
BALLOTS FOR THE PROTESTANT Including ballots with Identifying Marks BALLOTS FOR THE PROTESTEE Including ballots with Identifying Marks BALLOTS FOR OTHER CANDIDATE/S STRAY BALLOTS BALLOTS WITH VOTING MARKS205
Thereafter, the REJECTED BALLOTS shall be physically counted.
4. After segregating and counting the ballots, those classified as STRAY, MARKED or REJECTED will be given to the parties’ revisors for viewing, objections and claims. All other ballots are not subject to objections or claims by the parties.
Handwritten comments, objections and claims shall be submitted immediately after the recount of every clustered precinct and included in the recount report as well as those other documents in the ballot box that may be marked as exhibits for any of the party.
5. In the event the RC determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the COMELEC Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the 10 May 2010 election, in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the ERSD that
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 205 Rule 15, Sec. 6(h). “STRAY BALLOTS refer to ballots with two or more shades or without any shade in the contested position. MARKED BALLOTS refer to those ballots containing marks outside the ovals, which marks could either be ‘identifying marks’ or ‘voting marks.’ ‘Voting marks’ are markings placed beside the ovals that may appear to show the intent of the voter to vote for a party, while ‘identifying marks’ are those intentionally placed to identify the ballot or the voter. Ballots containing ‘voting marks’ may be subject to claims, while those with ‘identifying marks’ to objections. ! --- 72 ---! !
the data or the images to be printed are genuine and not substitutes.
6. Appreciating the validity of the votes credited for any party shall be done by the Commission making use of but not limited to the ballot images stored in the original CF Cards used in the 10 May 2010 automated election. The rules on appreciation of ballots under section 211 of the Omnibus Election Code shall apply suppletorily, when appropriate.
10. Preliminary Determination
All the adjudicative bodies provide for a preliminary determination of the merits of an election protest or a counter-protest.
In the PET, the preliminary determination of the merit involves the revision of the ballots and the reception of evidence in not more than three provinces identified by the protestant or counter-protestant as best exemplifying the frauds or irregularities alleged in his petition. If the PET is convinced after taking all circumstances into account that the protestant or counter-protestant will most probably fail to make out his case, the protest may be dismissed without further consideration of the other provinces mentioned in the protest.206
In the SET, such preliminary determination involves the revision of the ballots and the reception of evidence in the provinces with their municipalities or cities which correspond to at most twenty-five percent (25%) of the total number involved in the protests, counter- protests and cross-protests, as the case may be, which were identified as best exemplifying or demonstrating the electoral frauds pleaded by each of them. On the basis of this initial revision and reception of evidence, the SET may dismiss the protest, 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.207
In the HRET, the preliminary determination is resorted to only if the protest involves more than fifty (50%) of the total number of precincts in the district. In which case, the protestant is required to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 206 2010 Rules of the PET, Rule 65. 207 2003 Revised Rules of the SET, Rule 79. ! --- 73 ---! ! designate at most twenty-five (25%) percent of the total number of precincts involved in the protest which best exemplify or demonstrate the electoral irregularities or fraud pleaded by him. The HRET may dismiss the protest without further proceedings if no reasonable recovery of votes was established from the pilot protested precincts.208
As revised by COMELEC Resolution No. 9164, section 6 of Rule 15 of COMELEC Resolution No. 8804 now provides for the preliminary determination of the merits of the protest based on pilot precincts designated by the protestant that will best exemplify the merits or legitimacy of his protest. The pilot precincts must constitute at most twenty percent (20%) of the total number of his protested clustered precincts, but in no case exceeding two hundred (200) clustered precincts or be less than twenty (20) clustered precincts. Based on the results of such post-recount determination, the protest may be dismissed without further proceedings.209
In the RTCs, it is only after the revision or examination of all contested ballots, or the verification or re-tabulation of election returns in all protested precincts that the protestant is required to point to a number of precincts, corresponding to twenty percent (20%) of the total of the revised protested precincts, that will best attest to the votes recovered, or that will best exemplify the fraud or irregularities pleaded in the protest. Based on the results of this post-revision preliminary determination, the court may dismiss the protest without further proceedings if the validity of the grounds for the protest is not established by the evidence from the chosen twenty percent (20%) of the protested precincts.210
11. Technical Examination
Except for the COMELEC, the rules of all the other adjudicative bodies expressly provide for procedures on Technical Examination of election documents. The RTCs allow the technical examination of machines/equipment as well.211 A motion for Technical Examination
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 208 2011 Rules of the HRET, Rule 37. 209 COMELEC Resolution 8804 as amended by COMELE Resolution 9164, Rule 15, Sec. 6(b). 210 A.M. No. 10-4-1-SC, Rule 10, Sec. 10. 211 A.M. No. 10-4-1-SC, Rule 11, Sec. 1(b). ! --- 74 ---! ! must be filed within five days from completion of the revision, in case of the PET, the HRET and RTCs,212 or within twenty four hours after revision of all or substantially all of the ballots in the case of the SET.213 If granted, the technical examination should be completed within the time allotted except that in the case of the HRET, the period shall not exceed twenty working days unless an extension is granted.214
12. Presentation of Evidence
Just like in the trial of ordinary cases, election protests require a separate process for presentation of evidence. It is at this stage when the ballots, along with other documentary and testimonial proofs are offered in evidence for the parties.
The rules of procedures of the adjudicative bodies require for continuous reception of evidence. Except for the COMELEC, the rules of the other adjudicative bodies set time limits for the presentation of evidence.
In the PET, each party is given thirty (30) working days to complete the presentation of his/her evidence, including the formal offer of said evidence. The hearing for any particular day or days may be postponed or canceled upon the request of either party but the delay caused by such postponement shall be charged to the period for presenting evidence of the movant.215
In the SET, the protestant, counter-protestant or cross-contestant is given a maximum period of five hearing days to present evidence on a particular contested province and a maximum period of two hearing days for a particular contested municipality or city. On the other hand, the protestee, counter-protestee or cross-protestee is given a maximum period of three hearing days to present evidence for the contested province and a maximum of one hearing day for the contested municipality or city. But if the municipalities contested are less than five, protestant is required to present his evidence in
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 212 2010 Rules of the PET, Rule 46; 2011 Rules of the HRET, Rule 38; A.M. No. 10-4-1- SC, Rule 11, Sec. 1. 213 2003 Revised Rules of the SET, Rule 40. 214 2011 Rules of the HRET, Rule 39. 215 2010 Rules of the PET, Rule 59. ! --- 75 ---! ! chief within a maximum period of three hearing days. The adverse party is given only one hearing day to present his evidence-in-chief. The hearing for any particular day or days are not allowed to be postponed or canceled except upon the request of the party presenting the evidence for meritorious and compelling reasons. The delay caused by such postponement or cancellation is deducted from the party’s period for presenting evidence.216
In the HRET, each party is given a period of twenty (20) working days within which to complete the presentation of his/her evidence, including its formal offer. A ten-day extension may be granted on meritorious grounds. The hearing for any particular day or days may be postponed or canceled upon the request of the party presenting the evidence. Just like in the PET and the SET, the delay caused by such postponement shall be charged to the party’s period for presenting evidence.217
In the COMELEC, motion for postponement is not allowed once reception of evidence begins, except for clearly meritorious reasons and in no case to exceed three times. In addition, the parties may be penalized for filing dilatory pleadings or motions. 218
In the RTCs, the entire period for reception of evidence must not exceed ten successive days for each party, unless otherwise allowed by the Supreme Court. No motions for postponement are allowed except for clearly meritorious reasons and in no case to exceed three times and the interval between resetting must not exceed three days. The filing of dilatory pleadings or motions constitutes direct contempt of court and is punished accordingly.219
After the presentation of their respective evidences, the rules allow the parties to present rebuttal evidence subject to the approval of the respective adjudicating body; only the PET however, allows presentation of sur-rebuttal evidence.220
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 216 2003 Revised Rules of the SET, Rule 54. 217 2011 Rules of the HRET, Rule 52. 218 COMELEC Resolution No. 8804, Rule 18, Secs. 3 & 4. 219 A.M. No.10-4-1-SC, Rule 13, Secs. 3 & 4. 220 2011 Rules of the PET, Rule 61; 2003 Revised Rules of the SET, Rule 51; 2011 Rules of the HRET, Rule 50; COMELEC Resolution No. 8804, Rule 18, Sec. 1; A.M. No.10-4-1- SC, Rule 13, Sec. 1. ! --- 76 ---! !
To further expedite the proceedings, all of the rules of the adjudicative bodies require submission of affidavits in lieu of direct testimony of the witnesses to be presented.221 The SET and the HRET also provides for evidence by oral deposition.222 The HRET, the COMELEC and the RTCs define certain presumptions on election procedure, election paraphernalia and appreciation of the ballots223 whereas the SET provides them on electronic and digital signatures only.224
The 2003 Revised Rules of the SET provides that the degree of proof shall be a preponderance of evidence,225 which is evidence more convincing or worthier of belief than that which is offered in opposition thereto.226
On the other hand, although both COMELEC Resolution No. 8804 and A.M. No. 10-4-1-SC provides that the “[B]urden of proof is the duty of a party to present evidence of the facts in issue to establish his or her claim or defense,”227 the degree of proof is not indicated in the rules. For the COMELEC however, Supreme Court jurisprudence has declared that being a quasi-judicial body, the standard of proof for cases before the COMELEC is that of “substantial evidence” or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.228
13. Filing of Memorandum
All adjudicative bodies require the submission of memoranda.
In the PET, the parties are required to simultaneously submit their memoranda within twenty (20) days from receipt of the PET’s ruling on the last offer of evidence of the protestee. In the SET, the parties !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 221 2010 Rules of the PET, Rule 57; 2003 Revised Rules of the SET, Rule 54; 2011 Rules of the HRET, Rule 50; A.M. No. 10-4-1-SC, Rule 13, Sec.1; COMELEC Resolution No. 8804, Rule 18, Sec. 1. 222 2003 Revised Rules of the SET, Rule 55; 2011 Rules of the HRET, Rule 56. 223 2011 Rules of the HRET, Rule 55; COMELEC Resolution No. 8804, Rule 18, sec. 6; A.M. No.10-4-1-SC, Rule 13, Sec. 6. 224 2003 Revised Rules of the SET, Rules 64 & 65. 225 Rule 55. 226 Eulogio v. Spouses Apeles, G.R. No. 167884, 20 January 2009. 227 COMELEC Resolution No. 8804, Rule 18, Sec. 5; A.M. No. 10-4-1-SC, Rule 13, Sec. 5. 228 Idulza & Cabana v. COMELEC, et al., G.R. No. 160130, 14 April 2004; Varias v. COMELEC & Penano, GR. No. 189078, 11 February 2010; Japzon v. COMELEC, G.R. No. 180088, 19 January 2009. ! --- 77 ---! ! are given five days from receipt of its Order while the HRET and the COMELEC give the parties a non-extendible period of ten days to submit the memoranda. In the RTCs, the parties are given ten days to submit the memoranda from the verbal or written ruling of the court.229
In the PET, a party may file a supplemental or rebuttal memorandum only when required or allowed by the PET.230 No supplemental, reply or rebuttal memorandum is allowed by the other adjudicating bodies.231
14. Decision
The 2011 Rules of the PET do not provide a definite period for deciding election protests. The HRET is required to render its decision “as far as practicable” within ninety (90) days from the date the last memorandum of the parties was filed where no appreciation of ballots are involved, or from the date such appreciation is completed.232 For election protests filed with the COMELEC, the decision must be rendered within thirty (30) days from the time the case is submitted for resolution.233 For appealed election protests (first decided by the lower courts), the COMELEC is required to render the decision within sixty (60) days after it is submitted for decision but not later than six months after the filing of the appeal. In the RTCs, the court shall decide the election contest within thirty (30) days from the date the case is deemed submitted for resolution which shall not go beyond six months from the date of filing unless the Supreme Court authorizes an extension in writing.234
The decision of the PET, SET and HRET shall become final and executory as against a party within ten days from receipt of the copy of the decision unless a motion for reconsideration is filed.235 In the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 229 2010 Rules of the PET, Rule 63; 2003 Revised Rules of the SET, Rules 77; 2011 Rules of the HRET, Rule 62; COMELEC Resolution No. 8804, Rule 18, Sec. 7; A.M. No.10-4-1- SC, Rule 13, Sec. 7. 230 2010 Rules of the PET, Rule 64. 231 2003 Revised Rules of the SET, Rules 78; 2011 Rules of the HRET, Rules 63; COMELEC Resolution No. 8804, Rule 18, Sec. 7; A.M. No. 10-4-1-SC, Rule 13, Sec. 7. 232 2011 Rules of the HRET, Rule 67. 233 COMELEC Resolution No. 8804, Rule 19, Sec. 1. 234 A.M. No. 10-4-1-SC, Rule 14, Sec. 1. 235 2010 Rules of the PET, Rule 69; 2003 Revised Rules of the SET, Rule 84; 2011 Rules of the HRET, Rule 69. ! --- 78 ---! !
COMELEC, the decision on the protest by a Division becomes final and executory after the lapse of five days following promulgation unless a motion for reconsideration is filed.236 The decision of the RTCs shall be final and executory within five days from receipt of the parties unless an appeal is taken.237
15. Motion for Reconsideration and Appeal
The party aggrieved by the decision of the PET or the SET may file one motion for reconsideration, copy furnished the opposing party, within ten days from receipt of a copy of the decision. The opposing party may file an answer to the motion within five days after his/her receipt thereof. If the motion is denied, the decision shall be come final and executory. If the motion is granted, the party adversely affected may move for reconsideration within ten days from receipt of the resolution granting the motion.238
The same ten-day period for filing a motion for reconsideration is observed in contests before the HRET except that the adverse party need not file an opposition or comment unless required by the HRET.239
From the decisions of the COMELEC in Division, a motion for reconsideration to the COMELEC En Banc may be filed within five days from promulgation of the Division’s decision. The ECAD Director of the Commission shall notify the Presiding Commissioner of the Division of the filing of the motion for reconsideration within twenty-four hours and the latter shall certify the motion to the En Banc within two days from notice. The ECAD Director shall calendar the motion for consideration within ten days from such certification. The motion for reconsideration shall be heard and the En Banc’s decision on said motion shall be issued within fifteen days from the date the case or matter is submitted for its decision.240
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 236 COMELEC Resolution No. 8804, Rule 19, Sec. 10. 237 A.M. No.10-4-1-SC, Rule 14, Sec. 5. 238 2010 Rules of the PET, Rule 69; 2003 Revised Rules of the SET, Rule 84. 239 2011 Rules of the HRET, Rule 69. 240 COMELEC Resolution No. 8804, Rule 20. ! --- 79 ---! !
Appellate relief for election contests is expressly available only for decisions of the RTCs (and for first level courts241 in case of elective barangay offices). Motion for reconsideration is for the decision of the RTC is not allowed. Instead, the aggrieved party may appeal the decision to the COMELEC within five days after promulgation of the assailed decision by filing a notice of appeal with the court that rendered the decision, copy served on the other party.242 The prevailing party may move for an execution pending appeal subject to showing good reasons which must: (a) constitute superior circumstances demanding urgency that would outweigh the injury or damage, should the losing party secure a reversal of the judgment on appeal; and (b) manifest in the court decision sought to be executed that the defeat of the protestee or the victory of the protestant has been clearly established.243 If granted, the writ of execution shall issue only after twenty working days from issuance of the Order of Execution if no restraining order or status quo order is secured by the aggrieved party from the Supreme Court or the COMELEC within such period.244
COMELEC Resolution No. 8804 is silent on the length of time that the COMELEC may decide the appeal but according to Rep. Act No. 7166, the COMELEC has to decide cases appealed from the RTC within sixty days from submission for resolution, but in no case more than six months from the filing of the appeal.245
16. Execution of Final Decision
The 2010 Rules of the PET provides that as soon as judgment is entered, notices shall be sent to the Senate, the House of Representatives, the Commission on Audit (COA) and the COMELEC.246
Under the rules of the SET and the HRET, upon finality of their decisions, notices shall be sent to the Senate in case of the SET or
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 241 Municipal Trial Courts (MTCs), Metropolitan Trial Courts (MeTC), and Municipal Circuit Trial Courts (MCTCs) 242 A.M. No.10-4-1-SC, Rule 14, Sec. 8; A.M. No. 07-4-15-SC, Rule 14, Sec. 8. 243 A.M. No. 10-4-1-SC, Rule 14, Sec. 11 244 Ibid. 245 Sec. 22 246 2010 Rules of the PET, Rule 71. ! --- 80 ---! ! the House of Representatives in case of the HRET, the President of the Philippines, and COA.247
COMELEC Resolution No. 8804, as amended, provides that upon finality of its decisions, notices shall be sent to the President of the Philippines, the Secretary of the Department of Interior and Local Government (DILG), the Chairman of COA, and the Secretary of the Sangguniang Pampook in case of regional offices, Secretary of the Sangguniang Panlalawigan in case of provincial offices, and Secretary of the Sangguniang Panglungsod in the case of city offices.248
Under A.M. No. 1-4-10-SC, as soon as the decision becomes final, notices shall be sent by the RTCs to the COMELEC, the DILG, and the COA.249
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 247 2003 Revised Rules of the SET, Rule 86; 2011 Rules of the HRET, Rule 70. 248 Rule 18, Sec. 9 249 Rule 14, Sec. 7 ! --- 81 ---! !
! --- 82 ---! !
CHAPTER V RESOLUTION OF ELECTION CONTESTS UNDER THE PCOS AES
Prior to the 10 May 2010 automated election, three scenarios were predicted in relation to election contests in the Philippines: First, that there would be substantial reduction in the number of election protests; Second, that there would be a shift in the type of election contests lodged in different adjudicative bodies - election protests were expected to decrease radically while petitions for quo warranto were expected to rise; and Third, that there would be swift resolution of election protests.
The first scenario was predicated on the COMELEC’s assurances on the reliability of the automated election system. The second is based on the opinion that since the candidates and their lawyers were not versed on the technicalities of the automated election system, they will simply find ways to challenge the proclamation of the winners via petitions for quo warranto. The third was based on the anticipated changes in the dynamics of the recount and/or revision procedures.
It was generally believed that the automation of election would minimize the opportunity for cheating and speed up the counting process thereby “lessening the number of election cases.”250 Since an election protest essentially involves the “appreciation” of the ballots, it was forwarded that “election protests may be a thing of the past” considering that “there is nothing to appreciate in fully automated elections.”251 Libertás initially held the same view:
“Indeed, once election automation is realized, handwriting legibility would no longer be an issue. As per the pronouncements of the COMELEC, voting will be done by shading a hole. In practical terms, this would mean that the ‘re-appreciation of votes’ aspect of ballot revision may be unnecessary and the dispute regarding the ballots would most probably be limited to ballot authenticity.”252
Data gathered however, did not conform to these expectations. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 250 ELECTION COURTS STUDY, p. 44. 251 Ibid. 252 Ibid. ! --- 83 ---! !
This Chapter analyzes the disposition of election contests filed with the different adjudicative bodies. It also forwards the issues and concerns encountered by both the litigants and the adjudicators in the resolution of these disputes.
A. ELECTION CONTESTS FILED IN RELATION TO THE 2010 AUTOMATED ELECTION
Election contests in relation to the 2010 automated election were filed in all adjudicative bodies, except the Senate Electoral Tribunal (SET).253
The Presidential Electoral Tribunal (PET) is currently hearing the 4th election contest filed with the tribunal since its constitution in 1987. This concerns the election protest filed by Vice-Presidential candidate Manuel “Mar” Roxas III against proclaimed Vice-President Jejomar “Jojo” Binay.254
Both the HRET and the COMELEC recorded a sharp increase in the number of election contests filed in connection to the 10 May 2010 automated election as compared to the number of election contests filed in relation with the 2007 election. In HRET, the 65 election contests even surpassed the previous record high of 50 election contests filed in 1987 (See Table 4). Meanwhile, the COMELEC received 98 election contests involving city and provincial officials,255 which is the highest since the 1998 Presidential election.256 (See Table 5)
In contrast, there is a comparatively high reduction in the number of election contests filed with the RTCs involving elective municipal positions. From 265 contests in 2007, only 192 contests were filed in 2010. (See Table 6)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 253 No election contest was filed with the Senate Electoral Tribunal (SET) in relation to the May 2010 automated elections. This is a marked departure from the trend where at least one electoral protest is filed with the SET every elections since 1987.See BASELINE STUDY, pp. 60-70. 254 Binay edged Roxas in the official tally by a narrow margin of around 727,084 votes. 255 Excluding EPC 2010-17 which was re-docketed as a Petition for Failure of Elections (SPA 10-215), and EPC 2010-95 which was withdrawn before it was raffled (protestee was Smartmatic-Tim). 256 There were 101 election contests filed in the COMELEC relative to the 1998 Presidential Election. ! --- 84 ---! !
Interestingly, contrary to the predicted shift in the nature of election contests, there was no marked increase in the number of petitions for quo warranto filed in the different adjudicative bodies.
Table 4. Comparative Breakdown of Election Contests Filed with HRET Year of Election Quo Total Election Protest warranto 1987 40 10 50 1992 22 6 28 1995 27 8 35 1998 27 8 35 2001 33 10 43 2004 16 3 19 2007 28 9 37 2010 47 18 65
Table 5. Comparative Breakdown of Election Contests Filed with the COMELEC Year of Election Quo Total Election Protest Warranto 2004 62 6 68 2007 70 3 73 2010 95 3 98
Table 6. Comparative Breakdown of Election Contests Filed with the RTCs Year of Election Quo Total Election Protest Warranto 2007 251 14 265 2010 189 3 192
! --- 85 ---! !
B. GEOGRAPHICAL DISTRIBUTION OF ELECTION CONTESTS
1. District Representatives
Election contests filed with the HRET concerning district representatives generally increased. The highest increase was recorded from the National Capital Region - from 4 cases in 2007 to 14 cases in 2010. Election contests for party-list representatives also increased by 5.
Table 7. Comparative Breakdown of Election Contests Involving Elective District and Party-list Representatives (By Administrative Region) Administrative Increase or Regions 2007 2010 Decrease (%) ARMM 3 6 3 (100) CAR 1 2 1 (50) NCR 4 14 10 (250) Party-List 2 7 5 (250) I 3 4 1(33) II 1 3 2(200) III 0 5 5 (500) IV-A 0 3 3 (300) IV-B 2 2 No change (0) V 3 6 3 (100) VI 1 1 No change (0) VII 1 0 -1 (-100) VIII 5 4 -1 (20) IX 4 0 -4 (-100) X 2 3 1 (50%) XI 1 3 2 (200) XII 2 1 -1 (-50) XIII 2 1 -1 (-50) TOTAL 37 65 28 (76)
! --- 86 ---! !
2. Provincial and City and Officials
The number of election contests involving city and provincial officials filed with the COMELEC increased by thirty-three percent (33%) on the average. The NCR registered the highest increase and the most number of election contests in 2010, constituting twenty-nine percent (29%) of total election contests filed in the COMELEC. On the other hand, from 0 contests in 2007, there were 13 election contests filed from Regions X to XIII.257 The ARMM, Region IV-A and Region V258 had the biggest decline in the number of election contests.
Table 8. Comparative Breakdown of Election Contests Involving Elective City and Provincial Officials (By Administrative Region) Administrative 2007 2010 Increase of Regions Decrease (%) ARMM 11 7 -4 (-36) CAR 2 0 -2 (-100) NCR 11 29 18 (198) I 2 4 2 (200) II 3 1 -2 (-67) III 9 10 1 (11) IV-A 11 7 -4 (-36) IV-B 1 5 4 (400) V 7 1 -6 (-86) VI 6 10 4 (67) VII 1 5 4 (400) VIII 7 4 -3 (-43) IX 2 2 No change (0) X 0 2 2 (200) XI 0 5 5 (500) XII 0 2 2 (200) XIII 0 4 4 (400) TOTAL 73 98 25 (34)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 257 Region X is Northern Mindanao; Region XI is Davao Region; Region XII is SOCCSKSARGEN Region; XIII is Caraga Region. 258 Region IV-A is Calabarzon Region; Region V is Bicol Region. ! --- 87 ---! !
3. Municipal Officials
The number of election contests filed in the RTCs involving elective municipal officials generally declined in all administrative regions. The largest reduction is in Region IX at ninety-seven percent (97%), next is Region V at eighty-eight percent (88%) and then Region II at seventy-one percent (71%). However, the highest increase in election contests was as high as four hundred percent (400%) which was in Region XIII.259 No election contest was filed in the National Capital Judicial Region as all municipalities, except Pateros were already converted into cities.
Table 9. Comparative Breakdown of Election Contests Involving Elective Municipal Officials (By Administrative Region) Administrative 2007 2010 Increase or Regions Decrease (%) ARMM 21 18 -3 (-14) CAR 11 4 -7 (-63) NCR 2 0 -2 (-100) I 28 13 -15 (-54) II 7 2 -5 (-71) III 28 14 -14 (-50) IV-A 28 26 -2 (-7) IV-B 7 6 -1 (-14) V 24 3 -21 (-88) VI 9 5 -4 (-44) VII 7 16 9 (128) VIII 10 25 15 (150) IX 39 1 -38 (-97) X 24 15 -14 (-38) XI 4 5 1 (25) XII 11 14 3 (27) XIII 5 25 20 (400) TOTAL 265 192 -73 (-28)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 259 Region IX is the Zamboanga Peninsula; Region V is the Bicol Region; Region II is Cagayan Valley; Region XIII is Central Luzon. ! --- 88 ---! !
C. GROUNDS RAISED IN THE PROTESTS
The grounds cited in the election protests arising from the 10 May 2010 automated election may be classified into following categories: (a) system-related, or allegations of fraud/errors involving the technology used in the automated election; and (b) non-system related or those mainly involving the conduct of the candidates and their supporters, the BEIs, the BOCs and other officials.
1. System-Related Grounds
Some of the most common system-related grounds cited in the election protests were as follows: (a) Erroneous counting of votes or misreading of ballots by the PCOS machines:
- the unusually high or substantial number of nullified votes - the variance in machine results compared to physical count as shown by the Random Manual Audit (RMA) - number of votes in election returns exceeded the number of registered voters; number of ballots scanned exceeded number of voters who actually voted - voters for one candidate per results of the electronic counting do not tally with the actual number of voters who voted for said candidate as “notably observed during the voting” or as evidenced by voters’ affidavits attached to the protests - statistically improbable results because the protestant is very popular
(b) Errors in the initialization or installation of PCOS machines:
- proper observation of the protocols could have verified if data storage devices were pre-loaded or pre-programmed
(c) Errors in transmission and consolidation of election results:
! --- 89 ---! !
- discrepancies in the election returns i.e. results therein different from those in the printed COCs, or from the electronically transmitted COCs, or from figures in the SOVs, or those posted in the COMELEC website - material discrepancy in the SOVs and/or Certificate of Canvass of Votes and Proclamation (COCVP) with the manual summary of election returns - transmission of final testing and sealing (FTS) results instead of actual election results
(d) Erroneous rejection of ballots:
- replacement PCOS rejected previously accepted ballots (i.e. 1st PCOS broke down) - patterned/pre-determined rejection of ballot - ballots properly accomplished or with no markings, unreasonably rejected by PCOS (rejected ballots do not show any cause for rejection) - ballots rejected with screen showing ‘previously scanned or registered.
(e) Election returns bore dates other than 10 May 2010 and/or time of voting not accurately reflected; some audit logs in Spanish hence, raising the presumption of pre- loaded, manipulated or fabricated election results
(f) Election returns printed on unauthorized white thermal paper or ordinary tape receipts, without COMELEC seal or watermark therefore deemed not “authentic”
(g) Non-implementation of security measures prescribed by COMELEC such as the use of UV Lamps to verify ballots, bar code identification, screen verification/voter-verifiable paper trail, and digital signatures which raised questions on the authenticity of ballots and the integrity of count and canvass of votes:
- lack of digital signatures invoked to argue that electronically transmitted election returns without digital signatures are null and void hence, resort to the ballots is necessary
! --- 90 ---! !
- lack of screen verification/voter-verifiable paper trail prevents determination if ballots cast were actually and correctly counted
(h) Manipulation of PCOS and/or CF cards
- electronic or systematic “Garci-type” vote padding and vote shading - illogical or statistically improbably increase in voter turn-out - CF cards were preloaded or pre-programmed - data storage device and memory card switching - audit logs show improbable ballot feeding every 10-15 seconds
(i) Repeated malfunction and several breakdowns of PCOS and CCS machines
- the sudden re-zeroing and re-initialization of PCOS machines after votes were already cast - failure to transmit election results - CCS machines failed to print statement of votes - election results not transmitted to COMELEC Central Server
(j) Issues on the data storage device
- back-up memory card were used for counting and transmission instead of actual CF cards - no sufficient time to test replacement CF cards, contrary to rules
(k) Defects in the ballots which required trimming and cutting thus, causing rejection by the PCOS or inaccuracies in appreciation of the votes
! --- 91 ---! !
2. Non-system related Grounds
Among the grounds cited in the protests which are not directly related to the automated system are as follows:
(a) Massive vote buying and negative vote buying (b) Flying voters (c) Fake ballots (d) Pre-election or post election-shading of the ovals on the ballots (e) Ballots pre-marked to cause their rejection (f) Irregularities committed by BEIs or which occurred during voting/canvassing - voters not allowed to feed ballots themselves - voters not allowed to correct shading or re-insert ballots after rejection; - voters not informed of right to protest rejection - rejected votes not counted/tallied separately, and considered spoiled - ballot secrecy folder not used - BEI assisted voters in shading ballots - watchers prevented from performing duties or allowed favored watchers inside the precinct - preferential voting i.e. voters connected with favored candidates were given priority numbers so they can vote ahead of others; “secure a stub” method was faulty - plain bond paper fed to PCOS - BEI/BOC did not follow or altered protocols in General Instructions indicating tampering of results - BEI/BOC ignorant of protocols and rules and relied on technicians who was thus given unhampered opportunity to tamper with results - BEIs failed to issue election returns and statement of votes - allowing favored candidates to give meals during counting and canvassing; campaigning in polling places - ballots cast in precincts with malfunctioned PCOS not fed into contingency PCOS
! --- 92 ---! !
- ballots already had ink stains which caused rejection of ballots - some voters were not allowed to vote because records reveal they already voted - BEIs did not affix their signatures and thumbmarks on the printed ERs - untransmitted CF cards transported and uploaded manually without adequate security measures undertaken - premature closing of voting hours - previously scanned ballots re-fed into replacement PCOS - failure to use indelible ink thereby allowing double voting
(d) Omission of names in the voter’s list (e) late voting because of loss of power (f) election expenses beyond that allowed by law (g) fraud, terrorism, intimidation (h) methods of delaying voting was employed (i) Persons tried to disrupt PCOS operation by employing devices to disrupt electricity (j) Lack of notice on testing and sealing of PCOS after CF card replacement (k) Existence of “election operators” (l) Candidates not notified about the RMA
It is safe to venture that the increase in the number of election protests arising from the 10 May 2010 automated election is due to the lack of confidence in the reliability and integrity of the chosen AES. This can be gleaned from the system-related grounds raised in the protests.
On the other hand, many non-systems related grounds in the protests filed stem from the lack of knowledge on how the AES works, or failure to implement the protocols and procedures in the General Instructions to the BEI and the contingency measure provided. These problems were due to the late promulgation and the lack of adequate dissemination of the contingency guidelines, lack of proper training of the BEI members and inadequate voter information – responsibilities that lie primarily with the COMELEC.
! --- 93 ---! !
D. STATUS OF ELECTION CONTESTS
A significant number of the election contests arising from the 10 May 2010 automated election remain unresolved as of writing of this study. The sole election protest before PET has yet to go through revision a year and a half since the protest was filed. Pending cases in the COMELEC is about forty-seven percent (47%), or 46 of 98 of the election protests filed;260 around thirty-eight percent (38%), or 25 of 65 election protest in the HRET;261 and forty-percent (40%), or 76 of 192 election protests cases in the RTCs.262
Table 10. Disposition of Election Contests in the Adjudicative Bodies Adjudicative Bodies Terminated Pending Total PET 0 1 1 HRET 40 25 65 COMELEC 52 46 98 RTCs 116 76 192
1. Reasons for Termination
A large percentage of election contests in the adjudicative bodies were summarily dismissed, dismissed due to other technicalities, or withdrawn by the parties. As of the writing of this study, only thirty percent (30%) or 35 of 116 of the terminated cases in the RTCS were decided on the merits; about six percent (6%) or 3 out of 52 terminated cases in the COMELEC; and about fifteen percent (15%) or 6 out of 40 terminated cases in the HRET.
Table 11. Reasons for Termination of Election Contests in the Adjudicative Bodies Reasons HRET COMELEC RTCs Summarily Dismissed 6 12 63 Withdrawn 16 20263 13 Dismissed on Other 13 17 5 Technical Grounds Decided on the Merits 6 3 35 Total 40 52 116
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 260 Data as of 31 October 2011. 261 Data as of 31 October 2011. 262 Data as of 31 July 2011. 263 This figure includes the four cases which had been deemed abandoned for the failure of the parties to prosecute their cases. ! --- 94 ---! !
2. Technical Grounds for Dismissal
Insufficiency in form and content is the most commonly cited reason for the summary dismissal of the election protests filed in the RTCs (See Table 12). This is followed by the failure of the protestant to pay the requisite filing fees and/or cash deposits. A number of cases were also dismissed for being filed out of time, and for failure to comply with the requirement on certification against forum shopping. Curiously, a RTC judge dismissed outright two election protests on the ground that the lawyers of the protestant failed to indicate their 3rd Mandatory Continuing Legal Education (MCLE) compliance, expressing the view that election contests are not human rights cases and no substantive rights are violated with such summary dismissals.264 While non-compliance with MCLE requirement is not a ground for summary dismissal under any of the rules of the election adjudication bodies, a similar fate was imposed on one election protest before the COMELEC. A motion for reconsideration of such dismissal remains pending with the COMELEC En Banc as of October 2011.
Most of the election contests dismissed by the COMELEC on technical grounds involve the failure to pay cash deposit, the non- filing of the protest within the required period and the failure of the protestants to appear in the Preliminary Conference or to submit the required Preliminary Conference Brief (See Table 13). In the HRET, insufficiency in form and substance is the most common cause of the dismissal of election contests (See Table 14). One election protest before the HRET was dismissed for failure to state certain facts in the petition although the 2004 HRET Rules prevailing at the time of filing of the protest did not indicate what specific facts are needed to be alleged in the election protest. Another election protest was initially dismissed by the HRET for failure to attach the Statement of Votes although again, there is no such requirement to attach the same under the 2004 nor 2011 Rules of the HRET. Such requirement appears only under COMELEC Resolution No. 8804 and A.M. No. 10-4-1-SC.265 This protest case was reinstated after the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 264 Round Table Discussion, 8 December 2010, Trader’s Hotel, Pasay City. 265 COMELEC Resolution No. 8804, Rule 6, Sec. 2; A.M. No. 10-4-1-SC, Rule 2, Sec. 4. ! --- 95 ---! ! protestant proved that the Provincial Board of Canvassers failed to provide him with the statement of votes.266
Table 12. Technical Grounds for the Dismissal of Election Contests in the RTCs Ground for Dismissal Frequency Failure to Pay Filing Fee/Cash Deposit 24 Insufficient in Form and Content 38 Filed Out of Time 6 Court has No jurisdiction 1 Forum-Shopping 2 Failure to Appear at the Preliminary 4 Conference/ Submit Conference Brief Failure to Indicate MCLE Compliance267 2 Failure to Follow Lawful Orders of the Court 2 Not Stated 5
Table 13. Technical Grounds for the Dismissal of Election Contests In the COMELEC Grounds No. of Cases Filed Out of Time 7 Insufficient in Form and Substance 4 Failure to Pay Filing Fee 2 Failure to indicate MCLE 1 Failure to Pay Cash Deposit 10 Failure to Appear in the Preliminary Conference 5 or to File Brief
Table 14. Technical Grounds for the Dismissal of Election Contests In the HRET Grounds No. of Cases Filed Out of Time 3 Insufficient in Form and Substance 6 Failure to Appear at the Preliminary Conference 1 Forum Shopping 1 No Jurisdiction 1 Failure to Pay Filing Fee 2 Failure to Pay Deposit 2 Protest Lacks Verification/Not Notarized 2 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 266 EU-Cenpeg Project 3030, “A Case Study Biliran Province: Probing into Possible Automated Cheating,” p. 25.
3. Status of Pending Cases
The bulk of the election protests still pending in the different adjudicative bodies are now in the recount and revision stage (See Tables 15, 16 & 17). Curiously, there are election contests pending in the RTCs and the COMELEC which are still at the Preliminary Conference stage.
As of 31 October 2011, 80 decisions of the RTCs were appealed to the COMELEC. 50 of these appealed cases have been resolved by the Commission in Division while 20 more cases have been submitted for resolution by the Commission in Division. Of the 50 appealed protest cases decided by the Commission in Division, 28 were elevated to the Commission En Banc on motion for reconsideration, 12 of which have already been resolved by the En Banc.
Table 15. Status of Cases Pending before the RTCs as of 31 July 2011 Stage No. Preliminary Conference 18 Trial/Presentation of Evidence 9 Recount/Revision 43 Post-Revision Determination 1 Submitted for Resolution 4 Motion for Reconsideration 1 Total 76
Table 16. Status of Election Contests Pending Before the COMELEC as of 31 October 2011 Stage No.
Ad Cautelam cases -awaiting resolution on pre- 4 proclamation cases With pending motion to dismiss per Affirmative 1 Defense For Preliminary Conference 2 For Recount 12 Submission of Evidence/Formal Offer or awaiting 12 Order on Formal Offer Submitted for Resolution at the Division level 9 Pending Motion for Reconsideration with En Banc 7 TOTAL 46
! --- 97 ---! !
Table 17. Status of Election Cases before the HRET as of 31 October 2011 Stage For collection of ballot boxes 1 Reception of evidence 3 Presentation of Evidence concluded 20 Decided on the merit but pending motion for 1 reconsideration TOTAL 25
E. ISSUES AND CONCERNS ON THE RECOUNT/REVISION PROCEDURES
Prior to and even after the 10 May 2010 automated election, issues concerning the recount and revision procedures have been the subjects of debates. The discussions revolve around the manner of recount (manual count or machine count), the documents to use in the recount (actual ballots or the scanned ballots), the authentication procedures and the rules of appreciation of the ballots. While the adjudicative bodies have somehow agreed on some basic principles on how to go about the recount and revision processes, it is worthwhile to revisit these debates and see the impact of these initial disagreements on the resolution of election contests.
1. Machine Count or Manual Count
In the event that re-examination and recount of the ballot is allowed, would the recount involve a machine count or a manual count? This is the proposition that sharply divided the participants in the focused group discussions sponsored by Libertás.
Proponents of the machine count are of the opinion that the ballots should be recounted using the same standard as what the PCOS machine applied during election day. Thus, the ballots will just be re- fed to the PCOS machines and whatever the results from such “machine recount” would be considered as the final results. According to former COMELEC Commissioner Gregorio Larrazabal, “anything related to the elections should also be faster” and that “the standards used in the revision should be the same standard used in
! --- 98 ---! ! the May 2010 elections so as not to change the rules of the game”.268 Former COMELEC Chairperson Christian Monsod agrees with this proposition:
“I agree with the latest proposed guidelines of the COMELEC that the recount should be done on the same basis as the elections, which would include re- running the ballots through the PCOS machine and the use of the ballot image as primary evidence. A reversion to the old manual revision of ballot, as proposed by election lawyers, would mean that the criteria for deciding protests would be different from the criteria to determine the other winners in the elections. That would be legally assailable. It is the jurisprudence that should adapt to the new system and not the other way around.”269
Proponents of the manual count, on the other hand, argue that the integrity of the PCOS machines and the softwares used during the elections are also in question such that simply re-feeding the ballots to the same machines using the same softwares to obtain new election results would defeat the purpose of the protest.
There were also concerns raised on whether the PCOS machines would be able to “accept” the ballots given the length of time these were stored in the ballot box under uncontrolled conditions. Furthermore, each election adjudicative body has jurisdiction over particular position/s only. It is entirely possible that ballots were rejected due to “ambiguous marks” made in portions of the ballot that is not within the jurisdiction of the body hearing the case. In other words, it should not be presumed that all votes made in the ballots are “invalid” votes.” Even the COMELEC was not certain whether the PCOS machines could be re-configured to read or scan only the portion of the ballots covering the contested position.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 268 Round Table Discussion, 8 December 2010, Trader’s Hotel, Pasay City. 269 Christian Monsod, “The 2010 Automated Elections – An Assessment,” 9 Nov 2010.
Based on the Report of the AES Technical Working Group for the Random Manual Audit (TWG-RAM),270 the mandatory RMA conducted on 1,046 precincts yielded an average of 99.6% accuracy rate which is below the required 99.995% accuracy requirement per project specification during the bidding for the AES. This lends support for the conduct of a manual recount because although slim, such percentage variance would still impact on multi-slot positions, especially on municipal council positions.
The TWG-RMA also submitted a Special Report as an addendum to their RAM Report asking the COMELEC to look into three cases involving precincts from five municipalities and three cities, which encountered various issues, to wit: a) 2-digit difference in the discrepancy between the number of ballots per AES data and the physical count; b) over 99 rejected ballots in one precinct; c) valid votes of only 99 as against 171 who voted out of a total of 980 registered voters; and d) large variances in the City of Manila for the position of Mayor which was suspected to have been caused by a “foreign object” which “unintentionally”‘ got lodged in the scanner of the PCOS machine which caused a vertical line to be imprinted on the ballot images.
It bears emphasis that almost all election protests prayed for manual recount of the ballots inclusive of the rejected ballots, and raised in issue the integrity and reliability of the PCOS machine count. Thus, it was argued that the protestants’ substantive rights were violated when six months after the period for filing of protests, the COMELEC changes its recount rules into a machine count effectively denying their prayer for a manual recount. There were also fears that the decisions of the RTCs would get “undeserved reversals” when appealed to the COMELEC as two different standards for recounts would expectedly yield contrasting election results. In any case, these concerns did not ripen into actual legal issues since, as earlier mentioned, the COMELEC reverted to a manual recount.
Undeniably, the recount proceedings in the HRET and the COMELEC were delayed because of the issue on manual vis a vis machine recount. HRET’s first recount began on 1 March 2011, a little over two weeks after it came out with the 2011 HRET Rules and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 270 Dated 22 July 2010. The TWG-RAM was created by the COMELEC through Minute Resolution No. 09-0765 dated 10 November 2009. ! --- 100 ---! !
Guidelines, while COMELEC’s first recount was conducted on 29 March 2011 or almost two weeks after COMELEC Resolution No. 9164 was promulgated (reverting to a manual recount).
2. Authentication of Ballots
Whether in a manual or in machine recount, ballot authentication is required.
In the 2010 Rules of the PET, the 2011 HRET Rules and A.M. No.10- 4-1-SC, authentication of the ballots is done through the use of the PCOS machine actually used during the elections in the subject precinct, or by another device certified by the COMELEC to be capable of performing the desired authentication requirement through the use of bar codes and UV ray code detection mechanism.271
However, the PCOS machines were retrieved by SMARTMATIC-TIM immediately after the elections272 supposedly pursuant to its contract with the COMELEC.273 Several requests by the RTCs to the COMELEC to make available PCOS machines for authentication purposes were unanswered. In Minute Resolution No. 10-0665 dated 20 July 2010, the COMELEC resolved to hold in abeyance actions on all requests by the courts for PCOS machines because it was still deliberating on the arrangements to be made with SMARTMATIC-TIM who already had lawful custody of the PCOS machines at that time (since the PCOS machines were merely leased by COMELEC only for use in the election). The charges and obligations to be imposed on the requesting courts or parties for the machines to be released were also deliberated on. The COMELEC also failed to certify another authentication device which maybe used in lieu of the PCOS machines.
COMELEC initially refused to disclose the security markings in the ballots and other security measures used despite an obligation to do
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 271 2010 Rules of the PET, Rule 42(f); 2011 Rules of the HRET, Sec. 10(c); A.M. No. 10-4- 1-SC, Rule 10, Sec. 6(e) 272 General Instructions to the BEI, Comelec Resolution No. 8786, Sec. 43(d). 273 Secs. 5.10 and 5.11, Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local Elections (10 July 2009) ! --- 101 ---! ! so once recount or revision starts as provided in COMELEC Resolution No. 8804, the 2010 PET Rules and A.M. No. 10-4-1- SC.274 In Minute Resolution No. 10-0664 dated 13 July 2010, the COMELEC explained that it cannot disclose information on the security markings of the official ballots pending the conduct of special elections in several locations (which were also conducted using the PCOS machines).
Despite knowing fully well that the RTCs have begun hearing election contests, it was only on 6 January 2011, that COMELEC issued Minute Resolution 11-0011275 making available to said courts PCOS machines for revision proceedings, subject to payment of rental fee. A separate resolution that would have served as guideline for manner of the provision and delivery of the PCOS machines was not issued.
In the meantime, several RTCs decided to proceed with the recount by authenticating the ballots with UV ray detection mechanisms although such devise remained uncertified by the COMELEC until April 2011. It was only on 28 April 2011 that COMELEC issued Resolution 9210276 certifying or allowing the use of commercially available UV lamps or any other UV ray code detection mechanism for the authentication requirement. The COMELEC itself, in its recount process, began using the UV ray detection mechanism to authenticate contested ballots.277
In one case, an RTC judge ordered the protestant to lease a PCOS machine from Smartmatic and upon his failure to do so, dismissed the case on 8 December 2010 “for failure of the protestant to comply with the lawful orders of the court, and for apparent delay in the revision proceeding.” On appeal, the COMELEC reversed the lower !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 274 2010 Rules of the PET, Rule 45; A.M. No. 10-1-4-SC, Rule 10, Sec. 9; COMELEC Resolution No.8804, Rule 15, Sec. 8. 275 The Resolution states that the [“f]ees for the use of PCOS machines shall beat the rate of Five Thousand (P5,000.00) per PCOS, exclusive of the honorarium of PCOS Technicians and costs of accessories and consumables of the PCOS Machines.” 276 In the Matter of Authorizing and Certifying the Use of Commercially Available Ultraviolet Lamps or any other Ultraviolet Ray Code Detection Mechanism as a Means to Authenticate the Contested Ballots in Election Protests Pending Before Regional Trial Courts. 277 COMELEC Resolution 8804 as amended by Resolution 9164, Rule 15, Sec. 6(f) which states that authentication of the ballots shall be done “through the use of PCOS machine [not necessarily the one used in the protested precinct] or through any other device capable of performing the desired authentication requirement through the use of the bar codes and the ultra-violet ray code detection mechanism, at the option of the Commission.” ! --- 102 ---! ! court and ordered it to proceed with the revision using UV lamps citing COMELEC Resolution No. 9210 which was issued more than four months after the court rendered its Decision.278
The inaction of the COMELEC was certainly a major cause for the delay in the resolution of the election protests before the RTCs. It must be recalled that UV lamps were distributed to the BEIs all over the Philippines for the 10 May 2010 automated election but most of these lamps were not even used. These could have been distributed to the courts with pending election protests for its use in authenticating the ballots for revision purposes with no further cost to the litigants. Moreover, in lieu of such authentication ‘devices,’ the signature of the BEI Chairperson as with the manual elections, can be a means of authenticating the ballots, as expressly mandated under Rep. Act No. 9369.279 For said authentication, all that is needed are samples signatures of the BEI Chairperson. However, the rules of the adjudicating bodies limited the means of authentication to mechanical means i.e. the PCOS machine and any other device “capable of performing the desired authentication requirement through the use of bar codes and ultra-violate ray code detection mechanism.”
3. Actual Ballot or the Scanned Ballot?
Another issue that generated a lot of discussion concerns the appropriateness of the using the actual ballot or the picture-image of the ballot taken/scanned during election day in the recount proceedings.
Many were of the opinion that the actual ballots should be the basis for the recount because these are the best evidence of how the voters actually voted. Also, the ballots that have been erroneously rejected by the PCOS machines on election day would not have a corresponding picture image, such that to rely on the picture-image as the ultimate evidence would disenfranchise voters whose ballots were erroneously rejected.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 278 EAC (AE) A-56-2010 promulgated 8 June 2011. 279 REP. ACT NO. 9369, SEC. 13, amending REP. ACT NO. 8436, SEC. 11 and renumbering the same to SEC. 15. ! --- 103 ---! !
On the other hand, proponents of giving primary evidentiary status to the picture-image of the ballots argue that said picture-images contained the last action of the voter before they were inserted into the PCOS machines. It is therefore the primary proof of how voters actually accomplished their ballots. They claim that it is a means to guard against so-called post-election operations wherein actual ballots are altered or replaced to conform to earlier manufactured election results.
The 2010 PET Rules, A.M. No. 10-4-1-SC, and the HRET Guidelines on revision allows resort to the picture-image of the ballot only if the integrity of the ballots or ballot box has been compromised, but always after the CF cards is authenticated.280 Under COMELEC Resolution No. 8804 as amended by Resolution No. 9164, resort to ballot images occurs when the RC determines that the integrity of the ballots has been violated or has not been preserved, and when wet, or otherwise in such a condition that it cannot be recounted.281 Still, there are those who suggest that resort to the ballot images should be allowed even if there is no visible tampering of the ballot boxes in cases where there is a significant variance between the physical count of the ballots (excluding rejected ballots) and the number of votes cast as reflected in the printed election returns.
4. Rules on Appreciation
Another question that arose prior to the election is whether there would be an occasion to “re-appreciate” the ballots such that markings not recognized by the PCOS machine as a count during election day can now be considered a valid vote pursuant to the intent rule.
The rules promulgated by the adjudicative bodies allowed such “limited” appreciation.
For instance, the 2010 PET Rules and A.M. No. 10-4-1-SC, provides:
“In looking at the shades or marks used to register votes, the [revision committee] shall bear in mind that the will of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 280 2010 Rules of the PET, Rule 43(q); HRET Guidelines on Revision of Ballots, Sec. 10(o); A.M. No. 10-4-1-SC, Rule 10, Sec. 6(m) . 281 Rule 15, Sec. 6(l). ! --- 104 ---! !
voters reflected as votes in the ballots shall as much as possible be given effect, setting aside any technicalities. Furthermore, the votes thereon are presumed to have been made by the voter and shall be considered as such unless reasons exist that will justify their rejection. However, marks or shades which are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination.”282 (Emphasis supplied).
Although the above provision appeared in the original Rule 15 of COMELEC Resolution No. 8804, the amendatory provisions in COMELEC Resolution No. 9164 makes no mention of shading thresholds and now simply states as follows:
“(m) Appreciating the validity of the votes credited for any party shall be done by the Commission making use of but not limited to the ballot images stored in the original Compact Flash Cards used in the May 10, 2010 Automated National and Local Elections, and not by the Recount Committee. ”283
On the other hand, the HRET Guidelines on the Revision of Ballots provide:
“In classifying the valid ballots, the Head Revisor shall look at the shade or mark used to register vote for representative/congressman.
“Valid ballots with two or more shades or marks used to register vote for representative/congressman or without any shade or mark, shall be tentatively classified as STRAY BALLOTS. Valid ballots with mark or shade which are less than 50% of the oval shall be tentatively classified as STRAY BALLOTS. Any issue as to whether the shade or mark is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination. In case there is PCOS machine, the ballot shall be tentatively classified as stray.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 282 2010 Rules of the PET, Rule 43(l); A.M. No. 10-4-1-SC, Rule 10, Sec. 6(h). 283 Rule 15, Sec. 6(m). ! --- 105 ---! !
“Any other questions pertaining to the application of the rules on the appreciation of ballots shall be referred to the Legal Consultant.”284 (Emphasis supplied).
In any case, the 2010 PET Rules, A.M. No. 10-4-1-SC and COMELEC Resolution No. 8804, as amended, provide -
“The rules on appreciation of ballots under Section 211 of the Omnibus Election Code shall apply suppletorily when appropriate.”285
However, a perusal of section 211 of the Omnibus Elections Code286 show that most of the rules therein do not apply to the kind of ballots used in the 2010 automated elections. In fact, in the case of Loong v. COMELEC287, the Supreme Court held that the Omnibus Election Code’s rules on appreciation of ballots cannot apply in the manual recount of the ballots used in the automated 1998 ARMM election for these only apply to elections where the names of candidates are handwritten in the ballots. It must be recalled that in the 1998 ARMM elections (as with the 2010 automated elections), the ballots had the candidates’ names pre-printed on the ballots with an oval beside the same for shading to indicate the choice of the voter.
According to the Guidelines for the RMA288 issued by the COMELEC, the rules on appreciation of ballots in the manual system of counting shall not apply for RMA, and recount will done as follows:
“Section. 10 GUIDELINES ON READING THE BALLOTS
The Chairman, prior to reading the votes cast, shall:
a) Check for over-voting in each position subject to RMA. An over-vote is a situation where a voter selects more than the allowed number of candidate/s for a particular position.
b) In case there is an over-vote, such fact shall be recorded in the minutes by the Chairman but the vote shall not be counted
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 284 Sec. 10(g). 285 2010 Rules of the PET, Rule 43 (m); A.M. No.10-4-1-SC, Rule 10, Sec. 6 (i); Comelec Resolution 8804, as amended, Rule 15, Sec. 6(m). 286 BATAS PAMBANSA BLG. 881, SEC. 211. 287 GR No, 133676, 14 April 1999. 288 COMELEC Resolution No. 8837 (30April 2010) as amended by COMELEC Resolution No. 8898 (11 May 2010). ! --- 106 ---! !
for any candidate for that particular position. However, the fact of over-voting in any particular position will not invalidate the entire ballot. It shall remain valid and votes for other positions (that are not over-voted) shall be counted.
c) In case an oval is not shaded properly or contains other marks (such as checks or crosses), the vote corresponding to the said candidate shall be counted but such fact shall be recorded in the minutes. The subject ballot shall then be placed in an RMA envelope for Ballots with Ambiguous Marks.
d) The rules on appreciation of ballots in manual system of counting shall not apply for purposes of the RMA.”
It is also important to note the obligation imposed on the RTCs by A.M. No. 10-4-1-SC with regard to its appreciation of the ballots in the 2010 automated elections –
“The court, in its appreciation of the ballots and in ruling on the parties’ claims and objections, shall observe the following rules:
(a) On marked ballots – The court must specify and point to the marking clearly indicating the voter’s intent to identify the ballot. (b) On fake or spurious ballots, election document, machine, device or paraphernalia – The court must specify the COMELEC security markings or features that are not found in the ballot, election documents, machine, device or paraphernalia considered fake or spurious, or the operation or aspects of the machine, device or paraphernalia that resulted in fake or spurious results; (c) On stray ballots – The court must specify and state in detail why the ballots are considered stray; (d) On claimed ballots – The court must specify the exact basis for admitting claimed votes or crediting these to either party.”
5. Counting Rejected Ballots and Re-appreciation of Null Votes
Whether or not rejected ballots should be counted and null votes re- appreciated are two questions that persist.
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As stated in the General Instructions to the BEI,289 a rejection of the ballot occurs for three (3) reasons: (a) ambiguous mark i.e. ovals shaded less than fifty percent (50%); (b) misread ballots; (c) invalid ballots i.e. ballot belongs to another precinct.
In the case of ambiguous marks, or under shading by less than fifty percent (50%) but more than four percent (4%) (because shading of 4% or less results in a null vote), the voter is given an opportunity to re-shade his/her ballot. However, there were numerous reports that BEIs failed to instruct the voters about this opportunity to re-shade. Also as already mentioned, “ambiguous” marks made in certain elective positions may cause rejection of the ballot but this does not mean that the votes for the other positions in the ballots were likewise “erroneously shaded” or invalid.
As to the second reason for rejection i.e. misread ballots, questions still abound as to what exactly causes the machine to “misread” a ballot. If despite having re-fed the ballots in 4 different orientations as instructed in the General Instruction to the BEI, the same is still rejected, should the voter be penalized for such “misreading” by the machine?
As to the third instance of rejection, i.e. “invalid” ballots, spurious ballots should certainly not be counted.
It bears emphasis however that there were reports that ballots were rejected due to “expansion” or moisture caused by humidity or perhaps sweat, accidental marks on the ballots and smudging of the bar code, among others. If the UV detection feature went awry because of misalignment by a few millimeters, it is entirely possible that there are minute misalignments on the ballots that may have caused such rejection. The TWG-RMA report in fact recommended a review of certain precincts selected for the RMA because of the high number of rejected ballots.290
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 289 COMELEC Resolution No. 8786, Sec. 38(e). 290 Tina Santos, “Audit shows May 10 polls 99.6 accurate,” Inquirer.net, 30 July 2010.
The 2010 Rules of the PET and A.M. No. 10-4-1-SC is silent on rejected ballots as it speaks only of “valid”, “torn”, “unused” and “stray” ballots (although there are no stray ballots under the PCOS AES). On the other hand, both the HRET Guidelines on Revision of Ballots and COMELEC Resolution No. 8804 as amended, which were issued months after the elections allow the parties to claim rejected ballots.291
The General Instructions to the BEIs provide that the ballot rejection may be objected to by the voter and the same shall be recorded in the Minutes of Voting.292 Unfortunately, it was reported that many BEIs not only failed to inform the voter of the opportunity to re-shade and re-feed the ballots, but they were also remiss in informing the voters that they may register an objection to rejected ballots. In this regard, questions as to whether a party can object to the inclusion of rejected ballots (i.e. claim thereon) where no written objection on the rejection was reflected in the Minutes may surface. There may also be queries on what more can a voter do if he himself wishes to pursue his objection on the rejection.
Indisputably, in the case of rejected ballots, the voter had chosen to exercise his/her constitutional right to vote (and may have waited hours to be able to do so). Thus, rejection of the voter’s ballot effectively resulted to his/her disenfranchisement on election day. In this view of this, it may be argued that not considering these rejected ballots and “null votes” in the protest recount is effectively disenfranchising the voter a second time around.
An illustrative case on “null votes” is that of Vice-presidential candidate Manuel “Mar” Roxas III who anchors his election protest on the allegedly more than 3 Million null votes recorded for the position of Vice-President.293 “Null votes” allegedly resulted from either of the following: (i) over-shading; (ii) under-shading (i.e. shading 4% and below of the oval); (iii) no vote for a position; (iv) over-voting (i.e. 13 senators voted instead of 12 in which case all 12 votes for senators will be considered null votes); and (v) under voting !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 291 HRET Guidelines on Revision of Ballots Sec. 10(n); COMELEC Resolution No. 8804, as amended, Rule 15, Sec. 6(i). 292 COMELEC Resolution No. 8786, Sec. 38(e). 293 By Philip Tobeza and Kristine Alave, “Roxas insists on null votes” PDI, 3 June 2010. Accessed at http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100603- 273530/Roxas-insists-on-null-votes. ! --- 109 ---! !
(i.e. 3 senators voted, in which case 9 will be null votes) for multi- positions.294 Instances of over-shading that would register a “null” vote are still not clear until now. In the same manner, instances of under-shading that would result to “null” vote are also still being debated. Under the 2010 PET Rules and A.M. No. 10-4-1-SC, ovals with less than fifty percent (50%) shading (not 4%) are not considered valid votes but questions on threshold shading may be resolved through the use of the PCOS machine.295 On the other hand, under the HRET Guidelines on the Revision of Ballots, votes with less than fifty percent (50%) shading shall be “tentatively” considered stray subject to resolution on the threshold by use of the PCOS machine.296 No fifty percent (50%) shading threshold is mentioned in COMELEC Resolution No. 8804 as amended by Resolution No. 9164. Interestingly, the PCOS machine on election day supposedly considered an under-shaded vote as “null” or “no vote” only if the oval shading is four percent (4%) or less.
F. ISSUES AND CONCERNS IN THE ADJUDICATION OF ELECTION CONTESTS
1. Cost of Pursuing a Protest
Some election practitioners complain that the costs of pursuing an election protest is quite prohibitive. Several protests were actually dismissed or withdrawn for failure or inability to pay the filing fee or cash deposit.
The 2010 Rules of the PET increased by one hundred percent (100%) the basic filing fee for pursuing a protest,297 the additional filing fee for claims for damages and attorney’s fees,298 and the cash deposit for protests that do not require the bringing in of election
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 294 Former COMELEC Commissioner Gregorio Larrazabal, Round Table Discussion, 8 December 2010, Trader’s Hotel, Pasay City. 295 Rule 15, Sec. 6(l). 296 Sec. 10(d). 297 From Php50,000 to Php100,000. 298 From a range of Php120 to Php600 plus Php50 for each Php1000 in excess of Php150,000 to Php240 to Php1200 plus Php100 for each Php1000 in excess of Php150,000. ! --- 110 ---! ! paraphernalia.299 The cash deposit for protests that require revision remained at Php500/precinct.300
While the HRET did not increase the amount of filing and other fees, it increased the cash deposit requirement for protests that require election paraphernalia.301
In the COMELEC, the filing fee increased by over two hundred percent (200%).302 Moreover, the COMELEC now imposes an additional filing fee for claims for damages and attorney’s fees at the same rate provided under Rule 141 of the Rules of Court.303 Whereas before, the cash deposits were computed based on actual or estimated expenses, for protests arising from the 10 May 2010 automated election, the COMELEC now requires payment of cash deposit upon filing of a protest that entails a recount or bringing in of election paraphernalia.304 As there was confusion on whether the rate of the cash deposit is either for each precinct or clustered precinct, Minute Resolution No. 10-0780 dated 17 August 2011 revised the rates for cash deposits, as follows: a) for single precinct, Php1,500; and (b) for clustered precinct, Php3,000. COMELEC then ordered protestants, often through the Preliminary Conference Order, to pay the initial deposit based on this new directive.
There were no increases in the filing fee proper or in the additional filing fee for claims for damages and attorney’s fees in the RTCs. Like before, no cash deposit is required for election contests which do not require election paraphernalia or recount. Neither was there an increase in cash deposits for a protest requiring a recount or delivery of election paraphernalia which was at the rate of Php1,000/precinct.305
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 299 From Php10,000 to Php20,000. 300 2005 Rules of the PET, Rules 31 & 32; 2010 Rules of the PET, Rules 32 & 33. 301 Previously set at Php1,000/precinct, the cash deposit for such protests arising from the 10 May 2010 automated election is now Php3,000/clustered precinct 2004 Rules of the HRET, Rules 31 & 32; 2011 Rules of the HRET, Rules 31 & 32. 302 From Php3,000 to Php10,000. See COMELEC Minute Resolution No. 02-0130 dated 18 Sept 2001 and COMELEC Resolution 8804, Rule 11. 303 From Php750 to Php5,000 plus Php7 for every Php1,000 until Php7,500,000, thereafter Php10 for every Php1,000 beyond Php7,500,000. 304 initially set at Php1,500/precinct but not less than Php25,000.COMELEC Resolution 8804, Rule 2, Sec. 1. 305 A.M. No. 07-4-15-SC, Rule 7, Secs. 1 & 2; A.M. No. 10-4-1-SC, Rule 7, Secs. 1 & 2. ! --- 111 ---! !
The cost that is most problematic and burdensome for protestants is the cash deposit. The rules provides that other than summary dismissal for failure to pay the initial cash deposit, failure to pay any additional cash deposit within the prescribed time limit may result in the dismissal of the protest or counter-protest pending before the PET, SET and HRET;306and automatic dismissal for protests pending before the COMELEC and RTCs.307
Another recurring complaint is the costs imposed for the transport and storage of the election paraphernalia from the locality to the place of adjudication, particularly, with respect to cases filed with the COMELEC and the Tribunals which are all located in Manila. Such costs are taken out of the deposits in addition to the payment for the costs of revision itself. Obviously for the purpose of easing the financial burden on litigants, the HRET and the COMELEC expressly provided that the cash deposit for protests involving recounts will be computed based on clustered precincts (which consist of a maximum of seven individually established precincts) rather than by the number of individually established precincts.
In the case of defeated City of Manila Mayoralty candidate Joselito Atienza, he contested the additional charges against his cash deposit for rental of the PCOS machines, iButton, printer, CF cards and the hiring of the information technology personnel308 precisely because his petition prays for a manual count and not the use of the PCOS machines. The same concern on whether the cash deposit should be reduced or returned if there is manual count was also raised by several RTC judges.
2. Use in Evidence of Electronic Documents and Data
The 10 May 2010 automated election used electronic data and processes in arriving at election results.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 306 2010 Rules of the PET, Rule 34; 2003 Revised Rules of the SET, Rule 31; 2011 Rules of the HRET, Rule 33. 307 A.M. No. 10-1-4-SC, Rule 7 Sec. 2(b); COMELEC Resolution 8804, Rule 11, Sec. 2(b). 308 Sheila Crisostomo, “Comelec suspends Manila ballot count,” Philippine Star, 5 February 2011.
Rep. Act No. 9369 provides that the election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as basis for the canvassing of votes and the proclamation of winning candidates.309 The canvassing boards in turn are supposed to canvass electronically transmitted returns, and the certificates of canvass transmitted electronically and digitally signed shall be considered as official election results which shall be used as basis for the proclamation of a winning candidate.310
Based on the above, it can be gleaned that evidence consisting of electronically generated election returns, certificate of canvass and statement of votes, the printed audit logs and electronic data stored in memory cards (back-up and main), as well as in the COMELEC server may be brought to fore in election contests. Notably, the recount procedure uses the printed electronically generated election returns and the CF card containing electronic data i.e. picture image of the ballots.
In line with this, questions on the execution, authentication or reliability of these electronic evidences will certainly arise. In particular, these questions may revolve around the procedure for authentication of printed copies of electronic data; the utility of CF cards containing the picture-image of the ballots or copies of such CF cards; and whether or not adjudication bodies will accept the data in the COMELEC server as reliable evidence of the votes in case the integrity of the ballots, ballots box and the CF Cards have been compromised or alleged to be compromised. Significantly, in A.M. No. 10-4-1-SC, the court may order the COMELEC to provide a party access to, or to recover and use electronic data from the COMELEC back-up server. It also allows a party, upon motion, to reproduce electronic data within the custody and control of the COMELEC311 under conditions and safeguards required by the Commission.312 However, Rep. Act No. 9369 does not even
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 309 REP. ACT NO. 9369, SEC. 19, amending REP. ACT NO. 8364, SEC. 18 and renumbering the same to SEC. 22. 310 REP. ACT NO. 9369, SEC. 20, amending REP. ACT NO. 8436, SEC. 21 and renumbering the same to Sec. 25. 311 Rule 12, Sec. 3. 312 Rule 8, Sec. 3. ! --- 113 ---! ! mandate transmission of the election results to a COMELEC server.313
Several transmission failures occurred which led to the direct uploading of the precinct results from the CF cards onto the CCS machines as provided for in COMELEC Resolution No. 8809.314 This lead to queries on whether or not the resulting Certificates of Canvass of Votes and Proclamation could be questioned on the ground that the election results tallied have not been “electronically transmitted” as required by law.
Then again, there are still questions as to the evidentiary value of the erroneous time and date stamps on many election returns. Rep. Act No. 9369 specifically states that each printed copy of the election returns shall bear appropriate control marks to determine the time and place of printing.315 According to the Report of the Chairman of the House Committee on Suffrage and Electoral Reforms on the congressional hearings on the alleged fraud and PCOS machine manipulation in the 10 May 2010 automated election -
“The time and date stamp issues are too serious in all its aspects for us to be convinced by explanations that sound like works in progress. An election return that is dated other than the official day of elections must be taken at face value and is legally invalid. Voting logged as taking place hours after the close of voting hours, with ballots logged as having been fed to the voting machine at a fast and unvarying rate consistent only with one person doing it, are not just suspicious but invalid as well. It is no argument to say that when the time is wrong, the time is still right just because it is consistently wrong. Smartmatic tried to argue: 12 hours of voting is still 12 hours of voting whenever and whatever the time logged or, for that matter, the date of the ER.”316
Rep. Act No. 9369 provided that the manner of determining the authenticity and due execution of the certificates on electronically transmitted election result shall conform with the provisions of Rep. Act No. 7166 as supplemented or modified by Rep. Act No. 9369. It !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 313 REP. ACT NO. 9369, SEC. 19, amending REP. ACT NO. 8436, SEC. 18 and renumbering the same to SEC. 22. 314 Sec. 27(d). 315 REP. ACT NO. 9369, SEC. 19, amending REP. ACT NO. 8436, SEC. 18 and renumbering the same to SEC. 22. 316 (undated) Par. 11, 3rd Regular Session, 14th Congress ! --- 114 ---! ! shall also conform to the appropriate authentication and certification procedures for electronic signatures as provided in Rep. Act No. 8792 or the Electronic Commerce Act, as well as the rules on electronic evidence promulgated by the Supreme Court.317
The Philippine Supreme Court promulgated in 2001 A.M. No. 01-7- 01-SC or the Rules on Electronic Evidence pursuant to Rep. Act No. 8792. It provides among others:
a) Electronic documents are a functional equivalent of paper-based documents;
b) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately;
c) When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Copies or duplicates shall not be admissible to the same extent as the original if: (i) a genuine question is raised as to the authenticity of the original; or (ii) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original;
d) Authenticity of digital signatures. - (i) By evidence that a method or process was utilized to establish a digital signature and verify the same; (ii) By any other means provided by law; or (iii) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature;
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 317 REP. ACT NO. 9369, SEC. 25, introducing a new SEC. 30 in REP. ACT NO. 8364. ! --- 115 ---! !
e) Disputable presumptions relating to digital signatures. - (i) The information contained in a certificate is correct; (ii) The digital signature was created during the operational period of a certificate; (iii) No cause exists to render a certificate invalid or revocable; (iv) The message associated with a digital signature has not been altered from the time it was signed; and, (v) A certificate had been issued by the certification authority indicated therein;
f) Factors for assessing evidentiary weight. – In assessing the evidentiary weight of an electronic document, the following factors may be considered: (i) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (ii) The reliability of the manner in which its originator was identified; (iii) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (iv) The familiarity of the witness or the person who made the entry with the communication and information system; (v) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (vi) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message;
g) Affidavit evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open court and may
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be cross-examined as a matter of right by the adverse party; and
h) Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
Significantly, Rule 7, section 2 of the Rules on Electronic Evidence provides:
“RULE 67. Integrity of an Information and Communication System. — In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the Tribunal may consider, among others, the following factors:
(a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;
(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or
(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it.”
The 2010 Rules of PET do not expressly provide that the Supreme Court’s Rules on Electronic Evidence. In contrast, A.M. No. 10-4-1- SC, which specifically provides its own rules of electronic evidence and authentication of electronic documents and data, as well as expressly stating that the Rules on Electronic Evidence shall apply to evidentiary aspects of pleadings, practice and procedure in election
! --- 117 ---! ! contests not otherwise specifically provided for in A.M. No. 10-4-1- SC.318 A.M. No. 10-4-1-SC also provides the following as disputable presumptions, i.e. considered established facts unless contradicted or overcome by other evidence: a) the audit log contains the list of all activities performed by the PCOS machines from the time it was powered on until it was turned off; and b) the PCOS and consolidation machines and the data storage devices are all in order, and the data generated reflect the activities entered in these electronic machines and devices.319
COMELEC Resolution No. 8804 and A.M. No. 10-4-1-SC (given that the latter rules are based on the former) state that the Rules on Electronic Evidence shall apply by analogy, or in a suppletory character, and whenever necessary, practicable, and convenient.320 Rule 22 of COMELEC Resolution No. 8804 even provides that one of the means to prove the authenticity of an electronic document i.e. electronic election returns, is the digital signature of the person who purportedly signed the same. However, as in the General Instructions to the BEI, or before COMELEC Resolution No. 8804 was even promulgated, the COMELEC instructed the BEIs not to put digital signatures on the election returns in contrast to what is legally required under Rep. Act No. 9369.321 COMELEC’s explanation for ignoring this particular requirement of law is that this is one step less in the process thus, in a way leads to the faster generation of results. Futhermore, during the House Committee of Suffrage and Electoral Reforms hearings on the 10 May 2010 automated election, COMELEC and Smartmatic alleged that the PCOS machines had their own digital signatures, which were inserted into the system by the iButton in possession of the BEI.322 According to IT experts this is not the digital signature contemplated by law.323 Section 25 of Rep. Act No. 9369 and sections 5, 8 and 9 of Rep. Act No. 8792
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 318 Rules 16 and 17. 319 Rule 13, Sec. 6(a)(vi) and (b)(iv). 320 Rule 1, Sec. 3, and Rules 21 and 22. 321 COMELEC Resolution No. 8786 ,Sec. 40 (f) to (h). 322 Par. 14, Chairman’s Report. House Committee on Suffrage and Electoral Reforms, 14th Congress 323 Cenpeg Report on the May 10, 2010 Automated Elections - A Synopsis (5 October 2010),p. 8.
The 2011 Rules of the HRET likewise provide that electronic documents or electronic data message may be used, offered and admitted in evidence in accordance with the provisions of the Rules of Court on electronic evidence.324
The 2003 Revised Rules of the SET, other than stating that the Rules of Electronic Evidence shall apply suppletorily in so far as they are not inconsistent with the Revised Rules and the orders, resolutions and decisions of the SET,325 in fact copied almost in toto the Rules on Electronic Evidence.
Unfortunately, many lawyer-practitioners claim that the Rules on Electronic Evidence is deficient and many remain perplexed about the mode of preservation and presentation of electronic data and evidence. Hence, it is a real challenge on the part of the election adjudicators, parties and lawyers alike to discover how to navigate the evidentiary demands of adjudicating disputes brought about by the AES.
How COMELEC intends to preserve electronic data and documents from the 2010 and succeeding automated elections is also a crucial consideration in election adjudication. For manual elections, Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 9369,326 which is the provision on election returns and their distribution, requires the Commission to post its ‘digital files’ in the website and to maintain said files for at least three years from the date of posting. Section 28 of Rep. Act. No. 7166, as amended by Rep. Act No. 9369327, which is the provision on canvassing by the different BOCs, states that the BOC Chairman “shall transmit the digital files of the certificate of canvass and its supporting statement of votes using a secured transmission device with authentication features to the secured tabulation system of the Commission and to the systems of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 324 Rule 61. 325 Rule 88. 326 REP. ACT NO. 9369, SEC. 33. 327 REP. ACT NO. 9369, SEC. 39. ! --- 119 ---! ! the other designated recipients as herein provided.” Finally, Sec. 29 of Rep. Act. No. 7166, as amended by Rep. Act No. 9369328, which provides for the number of copies of the certificates of canvass and their distribution, likewise provides that the Commission shall post its digital files in its website for the public to view or download at any time of the day, and that it shall maintain the files for at least three years from the date of posting.
3. Transparency and Partiality of Adjudicators
A chorus of voices gave failing marks to COMELEC’s transpareny. Indeed, leading up to the elections, three cases were filed in the Supreme Court assailing COMELEC for its refusal to disclose certain aspects related its the preparations for the elections.329
Libertás itself experienced difficulty securing information from the COMELEC in the course of our research for this study. Resolutions or decisions on election cases are not posted on the COMELEC website and neither does the COMELEC Library have a compilation of these cases. Even COMELEC’s other issuances, such as the numbered Resolutions and the Minute Resolutions, are not all posted on the COMELEC’s website nor furnished at the COMELEC Library. Hence, certain resolutions, particularly Minute Resolutions, that have a bearing on the conduct of election and EDR may not have been made fully disseminated to concerned parties such as, for example, Minute Resolution No. 10-0500 on the policy on substitution of candidates for the 10 May 2010 automated election, Minute Resolution No. 10-0780 on the payment of cash deposits for election protests arising from the 10 May 2010 automated election, and Minute Resolutions No. 10-0664 on the security markings on the official ballots used in the 10 May 2010 automated election.
In the course of our research, we discovered that there is no single repository of COMELEC resolutions, decisions and rules and regulations, and none of the offices concerned with adjudication330 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 328 REP. ACT NO. 9369, SEC. 40. 329 Roque et.al. v. COMELEC et.al, G.R. No. 188456, 10 September 2009; Center for People Empowerment in Governance v. COMELEC, G.R. No. 189546, 21 September 2010; Guingona, et al.. v. COMELEC, G.R. 181846, 6 May 2010. 330 ECAD for Election Contests (protest and quo warranto), Law Department for Election Offenses, Clerk of the Commission for others. ! --- 120 ---! ! keeps a chronological compilation of the Resolutions or Decisions of the Commission for its own ready reference. As to who decides which of the COMELEC’s resolutions or issuances may be released to the public, or posted on the COMELEC website, or filed with the library is unclear.
Based on Libertás’ own experience, requests from the public for copies of resolutions or status of election cases requires COMELEC En Banc approval. However, it was only upon the assumption to office of COMELEC Chairman Sixto Brillantes that Libertás’ request was favorably acted upon, to a certain extent. Data on pre- proclamation and disqualification cases remained elusive.
This is in stark contrast to the HRET, which upon written request, readily and promptly provides information on the status of the cases as well as copies of decisions rendered. In fact, it is only the 2011 HRET Rules that mandates the publication of its decisions on election contests before it in the official gazette or in reports officially authorized by the Tribunal.
Meanwhile, the Court Management Office (CMO) readily provided the research team with the needed data for the election contests filed with the RTCs.
Questions on impartiality of election adjudicating bodies were brought to fore.
The perception of bias cannot be avoided especially in the case of the HRET and the SET in light of its composition and membership. Both the SET and the HRET are composed of nine members, three of whom are Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six are members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party- list system represented therein.331 Considering that 2/3 of its members are incumbent politicians, it is highly probable that they would themselves be subject of election protests or be accused of having benefited from the fraud allegedly committed.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 331 1987 PHIL. CONST., ART. VI, SEC. 17. ! --- 121 ---! !
This situation happened in the SET in connection with the election protest filed by Aquilino Pimentel III against Juan Miguel Zubiri relative to the 2007 election. Pimentel sought the inhibition of Senator Juan Ponce Enrile who is a member of the SET on the ground that Enrile himself benefited from the fraud committed in the province of Maguindanao. Enrile however did not inhibit himself in the proceedings.
In the 2010 election, the HRET found itself in a more bizarre situation. Its present members, Laguna Representative Justin Marc Chipeco and Bulacan Representative Joselito Andrew Mendoza, both have faced elections protests themselves.332 Despite the protestation of one of the member justices of the HRET, the House of Representatives stood pat on its decision to retain Representatives Chipeco and Mendoza in the HRET with these protestees promising to inhibit themselves from deliberations and voting on their own cases.333
In the COMELEC, the doubts on its credibility stem from the lack of transparency and established rules for the selection and the appointment of the Commissioners. However unfair, there are reasonable grounds to engender doubts on the impartiality of the newly appointed Chairman of the Commission who have been an election law practitioner for most of his professional career and have had handled controversial personalities as clients.
Some RTCs have experienced the same perception of bias. Based on the data from the CMO, at least eight judges were asked to inhibit themselves from hearing the election protests before them due to their personal relations to the parties. Unlike in the HRET and the SET, however, these judges inhibited themselves from hearing the cases.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 332 HRET Case No. 10-017 Vergara v. Chipeco which was eventually dismissed in May 2011 for insufficiency of substance; HRET Case No. 10-037 Silverio v. Mendoza which dismissed on July 2011 for failure the protestant to pay additional cash deposit and for lack of interest; HRET Case No. 10—038 QW Caliwag v. Mendoza which was dismissed last December 2010 on the ground of forum shopping and litis pendencia. 333 “House backs HRET membership of solons facing protests,” Dateline Philippines, 3 September 2010.
CHAPTER VI ANALYSIS & RECOMMENDATION
“Challenges may arise in any part of the electoral cycle. Challenges should be perceived not as a reflection of the weaknesses of a political system or a symptom of deficient or manipulated electoral procedures, but a test of the strength, vitality and openness of the system and its procedures. While greater access to and understanding of the [Election Justice System] EJS may result in a number of challenges, it may also help ensure that electoral conflict is dealt with and resolved by institutional means, thereby, contributing to stability and peace and thus resolving potential conflicts of any other kind.”334
It is important to engender a certain, if not ideally high, level of trust and confidence in the election results by insuring the reliability of the election system and the smooth conduct of the electoral exercise. These could be achieved only if a comprehensive legal framework is in place that can adequately respond to issues that may arise in the preparation and conduct of the elections, and that institute measures to safeguard the integrity of the election system, be it manual or automated. This truism finds greater significance when the adopted election system provokes much public skepticism as in the case of the first nationwide automated election in the Philippines held in 10 May 2010. Whether this skepticism has foundation on solid facts is yet unknown, as the full implications of the automation experiment have not been fully uncovered even as this study is written.
What cannot be doubted is that the prediction that there will be little or no election protests because of the adoption of automation did not come to pass. This reality should serve both as a reminder and as a guide to the policy makers in planning the next election. Certainly, it is more realistic and practical to take the position that post-election disputes are inevitable. For this reason, it must be insured that sound EDR mechanisms are in place before the next round of election is held less than two years from now.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 334 ELECTORAL JUSTICE: THE IDEA HANDBOOK, p. 3. ! --- 123 ---! !
A. INSUFFICIENCIES IN THE CURRENT LEGAL FRAMEWORK
The 10 May 2010 electoral exercise highlighted the gaps in the legal framework that prevented a smooth transition from purely manual to an automated election. In its desire to shepherd the first nationwide automated election in Asia, the COMELEC tried its best to remedy these gaps thru administrative measures.
While pro-active administrative rule making is certainly encouraged, the COMELEC should take great caution so as not to overstep the boundaries of its authority. Stopgap measures, although at odds with the clear mandate of the law, may justify or may even be desirable to achieve a valid objective. In the long run however, quick fixes would only mask the flaws in the electoral framework and only invite more disputes. Therefore, it is imperative that the conflicting provisions in the different election laws are reconciled and the legal fissures are filled.
The shift from write-in to pre-printed ballots necessitated adjustments in election timelines to allow the COMELEC sufficient time to prepare for certain pre-election activities. With the inherent limitation of the pre-printed ballots, it became even more imperative for the COMELEC to resolve with dispatch disputes involving the qualifications of the candidates. This is so because the finalization of the ballot design and consequently, the printing of the ballots, depend on the COMELEC’s final list of candidates. The fact that elections for local and national positions are synchronized made this a colossal task.
Although section 13 of Rep. Act No. 9369335 gives authority to the COMELEC to make adjustments in the election timelines such as the setting of the deadline for the filing certificate of candidacy, it provided that a person who has filed a certificate of candidacy will only be considered a “candidate” at the start of the campaign period. This had the effect of giving a de facto or presumptive candidate an unbridled authority to advance his candidacy without the appurtenant consequences of premature campaigning provided by law. A re-examination of this provision is certainly in order.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 335 Amending REP. ACT NO. 8436, SEC. 11 and renumbering the same to SEC. 15. ! --- 124 ---! !
Meanwhile, to be able to come up with a voter registration list in time for the clustering of the precincts, the COMELEC tried to shorten the voter registration period - a move later rebuked by the Supreme Court. It also set the deadline for filing petitions for inclusion and exclusion one hundred sixty days (160) before the elections, contrary to the letter of Rep. Act No. 8189 which sets the last day at one hundred five (105) days before elections. While the actions of the COMELEC may have been impelled by necessity, it must be stressed that inclusion and exclusion petitions are proceedings intertwined with the voter registration process and the preparation of a permanent list of voters, and are safeguards the person’s right to vote. These remedies will be rendered inutile if no sufficient time is given for the voters, the candidates and the political parties to adequately inspect the voters’ registry list. These remedies would also be pointless if the COMELEC would defer, as it appears to have done, the implementation of the supposedly immediately executory orders of the first level courts on inclusion petitions.
The prevailing law on substitution of candidates is also clearly not in tune with the necessities of the AES as designed by the COMELEC. The PCOS AES does allow write-in of substitute candidates as provided by law. However, due to the legislature’s failure to make the necessary amendment to the law, the COMELEC was constrained to provide its own interpretation, if only to give imprimatur to the system it chose to adopt.
While it was commendable for the COMELEC to employ more stringent security measures on the number of ballots made available during elections, its fixation on ‘one-ballot per voter’ ran counter to the letter of the Rep. Act No. 9369 requiring three additional ballots per precinct. This one-ballot per voter becomes problematic in cases of “rejected” ballots - a kind of ballot that is not contemplated by either Rep. Act No. 9369 or by any other election laws. With the rejection of his/her ballot by the PCOS machine, the voter is immediately disenfranchised, as he/she is no longer able to use another ballot for voting. Although said voter may file an objection to the rejection of his/her ballot, there is no statutory or regulatory guideline on how to further proceed with such objection.
! --- 125 ---! !
It is also worth mentioning that COMELEC’s decision to limit the grounds for pre-proclamation controversies effectively ruled out the possibility of any remedy concerning erroneous, materially defective, fraudulent and falsified returns prior to the certification of the winning candidates. The COMELEC is therefore urged to re-examine Resolution No. 8804 concerning pre-proclamation controversies.
Finally, the re-appreciation of the votes cast is essential in a revision process pursuant to an election protest. In a manual election, all adjudicative bodies observed common rules of appreciation, long established by the Omnibus Elections Code and amplified by jurisprudence. Pre-printed ballots had the immediate impact of making the present statutory rules of appreciation obsolete. Ironically, the current legal framework does not provide voter-intent rules for pre-printed ballots. For this reason, it became a matter of discretion for the adjudicative bodies to craft their own rules on the matter.
The invaluable insights from the conduct of the 10 May 2010 automated election could serve as guideposts for a comprehensive review of the current Philippine electoral legal framework that addresses the concerns of both manual and automated election systems. A particularly important legislative initiative is to set forth a clear voter intent rule that is applicable to manual and whatever automated election system is chosen. Said rule must be able to consider long established judicial interpretations and be made applicable to all adjudicative bodies. But while it is essential to harmonize all existing elections laws, a piece-meal approach to electoral law reform should be avoided. For this reason, it is recommended that a new Election Code be legislated and passed by the Philippine Congress.
B. ISSUES ON THE INTEGRITY OF THE PCOS-AES
Although the electorate was not fully assured of a favorable conduct and outcome of an automated election prior to 10 May 2010, it remained hopeful considering the safeguards provided by Rep. Act No. 9369 to ensure the reliability and integrity of the chosen election system. Among these safeguards are the requirements for minimum
! --- 126 ---! ! system capabilities,336 secure communication channels for electronic transmission337, technical evaluation committee certification for the chosen AES,338 a continuity plan,339 source code review and pre- testing of the equipment or device by stakeholders,340 security features of the ballots341 and stakeholders education and training.342
The public was initially elated by the fast results of the election and the ready access to the election results. On the average, most winning candidates for local elective positions were proclaimed a few hours after the start of the canvassing. For Senators, the 1st nine senators were proclaimed on 15 May 2010 while the remaining three were proclaimed on 18 May 2010.343 The winning President and Vice President were proclaimed by Congress on 9 June 2010,344 fourteen days after the start of the canvassing and almost a month after election day.
Soon after, information about the flaws that occurred during elections started trickling in. Doubts also began to set in on the accuracy, reliability and integrity of the 2010 automated election.
The mandatory post-election RMA revealed differences in votes between the machine and manual counts. The surfacing of a self- confessed election operator prompted an investigation by the House of Representatives Committee on Suffrage and Electoral Reforms leading to more reports on system-based errors and irregularities. The COMELEC and/or Smartmatic-TIM, however, failed to timely provide convincing explanation for such errors.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 336 REP. ACT NO. 9369, SEC. 7, amending REP. ACT NO. 8436, SEC. 7 and renumbering the same to SEC. 6. 337 REP. ACT NO. 9369, SEC. 8, introducing a new SEC. 7 in REP. ACT NO. 8436. 338 REP. ACT NO. 9369, SEC. 9, introducing a new SEC. 11 in REP. ACT NO. 8436. 339 REP. ACT NO. 9369, SEC. 11, amending REP. ACT NO. 8436, SEC. 9 and renumbering the same to SEC. 13. 340 REP. ACT NO. 9369, SEC. 12, amending REP. ACT NO. 8436, SEC. 10 and renumbering the same to SEC. 14. 341 REP. ACT NO. 9369, SEC. 13, amending REP. ACT NO. 8436, SEC. 11 and renumbering the same to SEC. 15. 342 REP. ACT NO. 9369, SEC. 26, amending REP. ACT NO. 8436, SEC. 25 and renumbering the same to SEC. 31. 343 COMELEC National Board of Canvassers Resolution No. 10-004. 344 Jill Beltran, “Aquino, Binay victorious in poll race,” Sunstar, 9 June 2010.
Needless to state, the COMELEC also contributed to the public’s misgivings on the PCOS AES. It initially refused to allow the mandated source code review by interested parties. The COMELEC did finally allow the source code review 49 days before the election. By then, it was already too late to conduct the review.345 The certification issued by the Technical Evaluation Committee (TEC) to the effect that the hardware and software components are operating properly, securely, and accurately stated that such certification “excludes the public website, KBP server, central server, central back-up server, election system DNS server, the PCOS modem firmware, and the ballot production tool” because they were not submitted by COMELEC for certification testing.346
The COMELEC also ordered the disabling of the UV detection function of the PCOS machines because of printing errors. Despite the emergency purchase of UV lamps, the members of the BEIs were not given clear directive to use them for authentication of the ballots prior to voting. The COMELEC likewise failed to satisfactorily explain its non-compliance to the legal requirement for “digital signatures” on the electronically transmitted election returns and certificates of canvass.
The wholesale replacement of all the CF cards barely a week before the election due to errors that occurred in the reading of the ballots during the mandatory Final Testing and Sealing did not help to boost the confidence of the public to the PCOS AES. Machine breakdowns, unexplained failure to transmit, and the expansion of the ballots further compounded issues on the reliability of the chosen AES system.
Despite these apprehensions, it is significant to note that the physical or manual appreciation of the ballots in the election protests arising from the 2010 automated election thus far confirms the election day PCOS machine results.347
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 345Cenpeg, “The Automated Elections Systems Compliance Issues: TEC Certification”
C. PREPARATIONS FOR DISPUTE RESOLUTION ARISING FROM THE AUTOMATED ELECTION
The function of an EDR mechanism is to maintain the credibility and reliability of the electoral processes by establishing means and methods by which electoral fraud and irregularities may be addressed and corrected. In connection with this, the International Foundation for Electoral Systems (IFES) has identified seven standards that may serve as guidelines for the implementation of an effective system of EDR, as follows:348
1. Transparent right to redress for election irregularities; 2. Appropriate administrative and legislative measures to implement the right to periodic, free and fair elections; 3. Adjudicators that are impartial and informed; 4. Dispute proceedings take place within reasonable time and without undue delay; 5. With established sensible standards and burden of proof; 6. Effective, timely and enforceable remedies to the injured party; and 7. Effective education of stakeholders to enable them to become familiar with election procedures and issues.
Measured against these standards, it is readily apparent that the Philippine EDR mechanism needs substantial improvement.
1. Transparent Right to Redress for Election Irregularities
The public’s belief in the fairness and effectivity of the EDR mechanism is essential to the observance of the rule of law. Building public trust to the EDR mechanisms requires transparency of the process. The public should be allowed to observe the proceedings of an election protest and be assured that the same will not be
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! protests thus far decided by the HRET on a preliminary determination of the pilot precincts, the margins in favor of the protestants even increased leading to the dismissal of the cases. 348 Bill Sweeney “Complaints Adjudication Standards: The Seven Steps to Timely and Effective Dispute Resolution,” 23 February 2010. < http://www.ifes.org/Content/Publications/Articles/2010/Complaint-Adjudications-Standards- The-Seven-Steps-to-Timely-and-Effective-Dispute-Resolution.aspx>.[Accessed 22 April 2011]. ! --- 129 ---! ! conducted and resolved arbitrarily. The mere perception of misconduct should be avoided at all costs.
Transparency also demands the timely publication of the rules of procedures and such other rules of significance to the election processes and the election dispute resolution, including the orders and decisions of the adjudicative bodies.
Based on Libertás’ experience, information regarding status of cases and copies of final decisions of the HRET could be easily obtained once a formal request is submitted to the HRET Secretariat. A similar ease of access to information was experienced with the RTCs and the PET. In contrast, there seems to be an evident policy of confidentiality in the COMELEC, even as to public records such as resolutions and issuances. Difficulties in obtaining the status of the election cases pending before the poll body have also been experienced.
In this regard, it is recommended that the COMELEC review its policy on the confidentiality of records. Certainly, a wholesale classification of all issuances and resolutions as confidential does not auger well for the public’s right to know. After all, election processes and adjudication impacts on public interests more than it affects private rights. The COMELEC can perhaps adopt a new system of classifying issuances for better delineation of what is for public consumption and what is not. But it should definitely disseminate and make available all issuances that have a bearing on the electoral process or election adjudication. The COMELEC should also designate an office as repository of all its issuances and resolutions backed up by clearly established policy, on how, when and what information shall be released to the public.
Presently, only the rules of the HRET and the SET expressly require the publication of their respective decisions.349 The COMELEC on the other hand has not published any of its decisions on election contests, while the PET’s decisions are published in the Supreme Court’s website. Due to logistics problems, decisions of the lower courts are, of course, not published although these are readily accessible from the courts’ records.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 349 2003 Revised Rules of the SET, Rule 86; 2011 Rules of the HRET, Rule 71. ! --- 130 ---! !
In the interest of transparency, it is recommended that all adjudicative bodies maintain separate websites where their resolutions and issuances as well as information on the progress of the election contests, including notices of hearings thereon, may be made readily available to the public. Such openness can enhance public perception of their credibility and can forge good relationship with other election stakeholders. Furthermore, there being no legal prohibition, hearings on election contests should be open to the public and information on the progress thereof should be readily available if not disseminated. For recount proceedings, measures could perhaps be undertaken to allow the public to observe the recount proceedings from a cordoned area.
2. Appropriate Administrative and Legislative Measures
Due process also demands that the rules and standards for determining election outcomes should be “established prior to, and thus, outside of the factors at play in a particular election.”350 International election experts recommend that the rules should be finalized at least six months before an election, although the earlier issuance of the rules is preferred.351
Ideally, the gaps and inconsistencies in the existing legal framework should have been sorted before the 2010 election. In the same manner, administrative regulations pertaining to the electoral processes, including the rules of procedures by different adjudicative bodies should have been promulgated and disseminated way ahead of the election.
Early adoption and publication of the EDR rules is doubly significant considering that there are specific matters that are required to be alleged in the election protest or the petition for quo warranto. A protest or petition that does not comply with requirements may be considered insufficient in form and content/substance and may be summarily dismissed by the adjudicative bodies.
But as pointed out, the COMELEC issued its rules of procedure barely a month before the election, only to change the rules twice !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 350 YOUNG, p. 285. 351 STURTEVANT, p. 20. ! --- 131 ---! ! after the election. The other bodies did not fare better. The Supreme Court promulgated the rules of procedure for the trial courts and for the PET only a few days before the election. The HRET promulgated its rules of procedures nine months after the election. The SET did not even adopt new rules of procedure.
In sum, while the COMELEC was indecisive on its rules on revision and appreciation, the HRET adopted an overly cautious approach to the crafting of its own rules. Both ended up with their “final” rules of revision on February-March 2011 and had their first revision proceedings on March 2011, or ten months after elections. COMELEC’s indecision also stunted the proceedings in the RTCs. The COMELEC provided for the use or lease of the PCOS needed for the authentication of the ballots only in January 2011; it certified the use of an alternative authentication device only in April 2011; and refused to release information on the security features of the official ballots until May 2011.
Finally, despite its mandate to promulgate implementing rules and regulations for the AES under Rep. Act No. 9369, COMELEC did not craft a singular and comprehensive set of rules but opted to go through such rule-making on a piece meal basis. A holistic approach to rule making would have brought to fore various issues and concerns on the implementation of an AES early on, harmonized apparent conflicts of Rep. Act No. 9369 with the Omnibus Elections Code and other election laws, and spurred necessary legislation to fill in voids or remedy contradictions in the these laws. It could also have helped achieved uniform procedures and standards among the adjudicative bodies since these latter bodies would logically look towards COMELEC for guidance and direction in navigating an entirely new election system.
3. Impartial and Informed Adjudicators
It is also a core principle of due process that the adjudicators of election disputes are not only impartial but must also appear to be impartial. Any notion of bias or conflict of interest, whether real or apparent, could erode the public’s confidence to the EDR process.
The fact that majority of members of the SET and the HRET are incumbent senators and representatives chosen along party lines
! --- 132 ---! ! certainly gives the impression of probable impartiality. Two of HRET’s present members have been the subjects of election protests in connection with the 2010 election. A similar situation occurred in SET in relation to the 2007 election where a sitting member was also alleged to be a beneficiary of the massive cheating complained of and is therefore, unlikely to rule that such cheating did occur.
The impartiality of the COMELEC with regard to election disputes arising from the 10 May 2010 automated election has also been questioned and the lack of transparency and established procedures for the nomination and selection of the Commissioners remains a pressing concern. The inherent conflict of interest on the part of the COMELEC due its dual functions as the administrator of the election and the adjudicator of electoral disputes became even more readily apparent. Considering that the COMELEC implemented the automated election and openly declared the same to be a success, its objectivity and openness to accept evidence to prove the contrary is highly questionable. The alleged systems-related fraud and irregularities, if proven, would ultimately lead to its doorstep.
The demands of administering elections are already overwhelming given that national elections are held every three years and the barangay elections happening in between. In this regard, it would be ideal to create separate institutions for electoral adjudication and electoral administration. A Special Election Tribunal for instance could be created which would take cognizance, at the first instance, of all election contests involving the President, Vice President, Senators, District and Party-List Representatives, and Regional Officials. It would also have appellate jurisdiction over decisions of the trial courts on election contests involving local government positions. The proposed Special Election Tribunal would be of the same level as the Court of Appeals and would be part of the Philippine Judiciary. It would take over the functions of the various existing electoral tribunals, including the HRET, the SET and the PET.
The proposal would relieve the COMELEC of its original and appellate jurisdictions over election contests, so that it could function more efficiently as the country’s election management body tasked to run election; regulate political parties, campaigns and
! --- 133 ---! ! election finance; and prosecute election law violators. The proposal would also address issues pertaining to the impartiality of the HRET and the SET. The proposal, however, would involve amendments to the Constitution and would require a more elaborate discussion.
As a requirement of due process, it is also important that those who are tasked to resolve election disputes are familiar with all aspects of the election process. Hence, adequate familiarity with the chosen AES should be insured among judges, election adjudicators, revisors and recount personnel. The COMELEC and its personnel are, of course, presumed to know the technical aspects of the chosen AES. We have no doubt that efforts were exerted by the PET and the HRET to learn the technical aspects of the chosen AES prior to crafting their rules of procedure. There is no question that these adjudicative bodies have the necessary skills and competence to settle election disputes before them.
It is worthy to mention though that it was only the Supreme Court, thru the Philippine Judicial Academy (PHILJA), that conducted formal training to better equip the judges with all aspects of the election process, particularly with respect to the AES.
4. Dispute Proceedings Take Place within Reasonable Time and Without Undue Delay
Rules of Procedure of the adjudication bodies should insure speedy resolution of election disputes by providing reasonable but mandatory timelines and deadlines. Certainly, filing of election contest soon after the proclamation of the winner is desired.
Under the present rules, there are three deadlines within which to file an election protest depending on which adjudicative body has jurisdiction: (a) 30 days for contests filed with the PET; (b) 15 days for contests filed with the SET and the HRET; and (c) 10 days for protests filed before the COMELEC and the RTCs. The disparity in deadlines is justifiable because of the differences in the scope of the area covered by the protest. But an opinion was forwarded that a protestant may not be able to properly submit a protest that will overcome summary dismissal on form and content within a short period of ten days in the COMELEC and the RTCs.
! --- 134 ---! !
Noticeably, the adoption of automation had the twin objectives of speed and accuracy of election results, expediting election adjudication was not a priority during the crafting of new dispute rules, as the time limits set forth therein remained the same, if not lengthened.
Nevertheless, the rules are replete with provisions to expedite the election process such as the provisions on pilot precinct and preliminary determination; the conduct of a preliminary conference; submission of judicial affidavits in lieu of direct testimony. Time limits are also set for filing responsive pleadings, and conducting technical examination and for reception of evidence. Markedly absent, however, are express provisions on discovery except for the SET and the HRET Rules which expressly allows evidence by deposition.352Thus, to further expedite the resolution of election disputes, modes of discovery should be considered.
The two protest cases thus far decided by the COMELEC on preliminary determination of pilot precincts, were resolved a mere three and four months from the end of the revision: the revision in one protest case was conducted on 25 to 27 April 2011 while the resolution thereon was rendered only three months later on 27 July 2011; the recount in the other case was from 29 March to 13 May 2011, and the resolution thereon was rendered only four months later or on 13 September 2011.
For the HRET, of the three election protests that went through preliminary determination based on the pilot precincts, all were dismissed because after revision, the lead of the protestant even widened. In one protest case, the recount of the protested 149 clustered precincts was conducted from 1 to 4 March 2011; the decision thereon was rendered six months later or on September 2011. In another protest, the recount was conducted on 10 to 16 March 2011 for 45 clustered precincts; the decision thereon was rendered five months later or on 11 August 2011. In the third protest, the recount for 43 clustered precincts was conducted from 11 to 12 April 2011; the decision was rendered 9 June 2011 or a mere two months after the recount. It is safe to say, therefore, that where it not for the delay in coming up with the rules of revision for both the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 352 2003 Revised Rules of the SET, Rule 55 ; 2011 Rules of the HRET, Rules 56 to 60. ! --- 135 ---! !
COMELEC and the HRET, then most if not all election protests before it would be resolved by this year’s end.
In the RTCS, data from the Court Management Office (CMO), as validated in the survey and FGDs conducted by Libertás, reveals the many of the judges would have resolved the protest cases within the required period of six month from the filing of the protest had the issue on the authentication of the ballots did not ensue.
5. With Established Sensible Standards and Burden of Proof
Due process considerations also require that the EDR rules clearly establish sensible standards and burden of proof “so that the parties involved will have a reasonable understanding of what will be expected of each side in order to resolve the matter.”353
Needless to state, the different adjudicative bodies have differing standards for the summary dismissal of the election contests and in the resolution of the protest on the merits.
For instance, the COMELEC and the RTCs list as a ground for the summary dismissal of the protest, the insufficiency “in form and content” whereas the tribunals, such insufficiency must be “in form and substance.” Since all the adjudicative bodies (save for the SET) already sets forth in their Rules the required content of an election petition or protest, it would perhaps be better to anchor the summary dismissal on “form and content.”
Furthermore, it has been observed that most protests proceed to revision of the ballots even if the claimed fraud and irregularities raised as grounds for the recount are not first factually established. Perhaps it would be more practical to consider a threshold requirement of proof of fraud before a recount is undertaken to eliminate frivolous cases and to give way for the more efficient resolution of the meritorious ones.
In addition, it is glaring that only the 2003 Rules of the SET indicates the required burden of proof to establish as case, i.e.,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 353 SWEENEY, supra.
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“preponderance of evidence”354 has been defined as “evidence more convincing or worthier of belief than that which is offered in opposition thereto.”355 The Rules of the other adjudicative bodies are silent, albeit jurisprudence established that the standard of proof in the COMELEC should be “substantial evidence” or that “amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.”356 It is not clear though whether the parties and the adjudicators are mindful of the required standards of proofs in the process of resolving the election contests. For this reason, it is recommended that the EDR rules clearly set out the proof required to establish a case. It would also be desirable to agree on a uniform standard of proof for all adjudicative bodies.
It is also recommended that uniform rues on disputable presumptions be established in the EDR rules to further ease the burden of presenting evidence, At present, the 2011 Rules of the HRET, COMELEC Resolution No. 8804 and A.M. No. 10-4-1-SC provide such disputable presumptions on election procedure, election paraphernalia and on appreciation of the ballots,357 but the rules of the PET and the SET do not.
Finally, although the rules of all the adjudicative bodies now provide rules on electronic evidence which provisions are basically lifted from the Supreme Court’s Rules on Electronic Evidence. It may be worthy to consider the examination of the sufficiency of these rules to address conflicts arising from the automation of the election.
6. Effective, Timely and Enforceable Remedies to the Injured Party
For a remedy to be effective, it should be accessible to the parties seeking relief, timely resolved, and promptly enforced. Sadly, the prohibitive costs of pursuing a case hamper the citizen’s access to remedies for violations of electoral rights in the Philippines. The !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 354 Rule 55. 355 Eulogio v. Spouses Apeles, G.R. No. 167884, 20 January 2009. 356 Idulza & Cabana v. COMELEC, et al., G.R. No. 160130, 14 April 2004; Varias v. COMELEC & Penano, GR. No. 189078, 11 February 2010; Japzon v. COMELEC, G.R. No. 180088, 19 January 2009. 357 2011 Rules of the HRET, Rule 55; COMELEC Resolution No. 8804, Rule 18, Sec. 6; A.M. No. 10-4-1-SC, Rule 13, Sec. 6. ! --- 137 ---! ! inordinate delay in the resolution of cases results to ineffectual enforcement of the remedies if at all granted.
As shown in the previous chapters, a number of protests were dismissed or withdrawn due to failure to pay the filing fee or cash deposit. It is therefore recommended that the charges imposed for all election cases, particularly for protests, be revisited to insure that a relatively inexpensive remedy for election disputes is made available. It is also suggested the adjudicative bodies consider the exploring the application of the principles of alternative dispute resolution to election cases.
In protest cases, it is proposed that automatic administrative recount at the expense of the State be considered in close elections. For the investigation of election offenses, it is suggested that the COMELEC consider giving more authority to its field officials to file criminal information to the courts. (See Discussion Papers attached to this Study for a more elaborate discussion on these topics).
It is worthy to mention that under existing rules, only the trial courts have a reasonably definitive 6 months from filing of an election contest within which to resolve and terminate said election contests. The other adjudicative bodies could consider imposing upon themselves a mandatory timeline to resolve the cases before them.
As constitutionally mandated, the decisions of the lowers courts are appealed to the COMELEC and its decisions thereon are supposed to be final, executory, and no longer appealable.358 However, several election contests involving municipal and barangay officials still find their way to the Supreme Court by way of petition for certiorari which is a limited review on the grounds of grave abuse of discretion amounting to lack or excess of jurisdiction. Constitutionally, the SET and HRET are the “sole judge” of election contests, but the Supreme Court had reviewed decisions of these Tribunals by way of petition for certiorari. To be sure, the availability of final recourse to the Supreme Court is important but it also a cause of further delay as the Supreme Court is not known for its haste in deciding cases.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 358 1987 PHIL. CONST., ART. IX (C), SEC. 2. ! --- 138 ---! !
Curiously, except for the HRET, the rules of the other adjudicative bodies do not expressly provide the mechanism to enforce their decisions; these rules merely require the sending of notices to the concerned offices. In contrast, the 2011 Rules of the HRET expressly directs the Speaker of the House of Representatives to execute the decision unless a temporary restraining order is secured from the Supreme Court. It is therefore recommended that the EDR rules provide the manner by which decisions on election contests be implemented considering that this would require coordination with the executive department, particularly the Department of Interior and Local Government. The penalty of contempt or fine for parties in election contests who refuse to heed the adjudication bodies’ orders should perhaps be incorporated in the rules.
7. Effective Education and Participation of Stakeholders
The effective education and participation of the stakeholders in the crafting of the rules are important in building public confidence in the EDR system.
Under the law, COMELEC had to conduct, six months before the actual elections, widespread stakeholders’ education and training program to ensure their understanding and appreciation of the AES.359 The COMELEC is mandated to go on a road show to speak, educate and fully inform the stakeholders about the AES and “inculcate values on honest, peaceful, orderly and informed elections.” However, it has been observed that the road show conducted by COMELEC was limited to informing the public on how to use the PCOS machine, sometime with an actual machine demo unit, often without.
It has also been observed that many of the non-systems related grounds raised in the election protests stem from the failure of the BEIs and the BOCs to implement the protocols and procedures in the General Instructions the contingency plan. This could be due to the inadequate technology assistance and training given to the members of the BEIs and the BOCs. The BEI members underwent a two-day seminar only while the DOST personnel who conducted the seminar have themselves underwent only two-days of training on the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 359 REP. ACT NO. 9369, SEC. 26, amending REP. ACT NO. 8436, SEC. 25 and renumbering the same to SEC. 31. ! --- 139 ---! !
PCOS AES.360 It had been reported that even the PCOS technicians assigned to the polling places and the BOC technical assistants provided by Smartmatic-TIM had only one or two days training. It did not help that the COMELEC issued its Resolution on contingency measures361 only ten days before the election. This Resolution, which gives instructions on what to do in case of technical problems, was certainly not covered by the training programs of the designated IT- capable BEI member, their DOST trainors, and the BOC technical assistants.362
In the future, a complete AES education program should be designed to include basic knowledge about the dispute process. A training program for candidates and their lawyers on the nuances of the rules must also be devised to lessen, if not avoid frivolous complaints, and to avoid delays in the proceedings. It may also be advisable to train members of the media to insure accurate reporting on matters involving EDR issues and processes. The participation of the stakeholders in the crafting of the rules is all the more desirable. Finally, there must be continuing voter education on the election processes, including dispute resolution, prior to and even after the election period.
EPILOGUE
The 2010 election brought to the fore the issues and problems on shifting from manual to automated election with respect to the administration of election and the adjudication of election disputes. With the wealth of experience it gained from this exercise, there is no doubt that the COMELEC has to take the lead (or the burden) in pushing for necessary electoral reforms. With barely a year and half !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 360 For the BEI’s seminar, the 1st day was for training and the second day was for the written and practical certification exams. Kimberly Tan, “407 BEI Certifiers Undergo Training,” GMAnews.TV, 19 February 2010.
Despite the limited data gathered in this study, it has been shown that election disputes, whether post or pre-election day, are an inevitable part of the electoral process. The prevention or the reduction of these disputes should be one of the priorities of any electoral regime. In this wise, a holistic framework should guide the COMELEC that the election process includes dispute adjudication. This holistic and inclusive approach requires the COMELEC to plot the entire election process from preparation, to conduct of the election, to proclamation of winning candidates, and all the way to election adjudication.
Also, the COMELEC should now be able to sufficiently determine the areas in the election cycle where a manual election system and an automated election system converge, the areas where they diverge, and the processes and procedures that remain election system- neutral. In so doing, the COMELEC would be able to determine the legal stumbling blocks and thereafter advance the necessary legislative reforms. It would also be able to determine the appropriate administrative response to recurring and expected issues and to timely move for the amendment or the establishment of the corresponding policy regulations.
This is not to say that the other adjudicative bodies should be spared such introspection. It should also re-examine its EDR rules and aim for consistency, if not uniformity, with the other’s rules and processes.
It is hoped that this study had been able to present a glimpse of how the automation of the election impacts on EDR and thereby assist in crafting a comprehensive model for dispute resolution to guide election adjudication body/ies in handling election disputes, a model that provides an adequate, accessible, inexpensive, speedy remedy for all types of election disputes.
Below is the summary of the recommendations presented in this study:
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A. ADMINISTRATIVE PLANNING AND RULE MAKING
1. Administrative Planning
a. In choosing the appropriate automated election technology for the succeeding elections, the COMELEC should undertake an approach that holistically views dispute resolution as an integral component of the electoral process. In this regard, the COMELEC has to plot the entire election process from preparation, to conduct of the election to proclamation and all the way to election adjudication.
b. In light of the experience in the 2010 election, the COMELEC should already identify the legal stumbling blocks so that appropriate legislative measures could be done or appropriate administrative response could be planned.
c. The COMELEC should carefully plan and execute adequate stakeholder education and dissemination of information on security measures must be undertaken to engender confidence in the integrity of the AES chosen. The continuing stakeholder education on election processes should incorporate dispute resolution.
d. Judges, adjudicators, revisors and recount personnel should have adequate preparation for handling election disputes.
e. All adjudicative bodies should maintain separate websites to provide readily available information on rules and regulations, rulings and decisions.
f. Institution of a policy of transparency to be applied at the offices that are in charged in managing election disputes.
g. Paper and electronic documents must be preserved and properly stored.
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2. Rule-making
a. Rules of Procedure should be adopted or adjusted to the AES selected at least six months before the election.
b. The Rules should ensure speedy resolution of disputes by providing reasonable but mandatory timelines and deadlines.
c. The Rules should provide inexpensive remedy to all disputes possible.
d. The Rules should provide clearly defined standards of proof and rules on disputable presumptions.
e. A clear policy should be established with regard to conflicting documents (electronic or paper) and the manner and basis for deciding the conflict.
f. Provide clear requirement as to what should make a petition sufficient in form and in substance or content.
g. In protests, it must be expressed in clear terms that the bottom line of the appreciation the ballots is to find the true intent of the voter, as reflected in the most appropriate document.
h. Consider both manual and machine recount, at the option of the tribunal, according to the allegations in the petition.
i. Must consider digital forensic procedure as among the technical examination types that may be allowed to prove the accuracy of machine count.
B. CHANGES THAT REQUIRE LEGISLATIVE REFORMS
a. Update and amend the automated election law in light of experiences in the 2010 automated elections with due regard to impact of automation on election dispute adjudication. Harmonize election laws with the demands of automated election including the rule on substitution of
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candidates, premature campaigning, voter registration, and the like.
b. Provide flexibility to the COMELEC in fixing election timelines.
c. Consider providing a threshold requirement of proof of fraud before election protest or at least before recount shall proceed or be undertaken.
d. Legislate election dispute resolution principles or a comprehensive model to guide election adjudication body/ies in handling election disputes.
e. Legislation of a clear Voter Intent Rule that is applicable to any AES that COMELEC is allowed to choose.
f. Legislation of clearly defined general policies on what should govern an adequate, accessible, inexpensive, speedy remedy for all types of election disputes.
g. Consider administrative recounts given certain threshold margin of votes.
h. Consider Alternative Election Dispute Resolution (AEDR) mechanisms.
C. CHANGES THAT REQUIRE CONSTITUTIONAL AMENDMENTS
a. Create separate institutions for adjudication and administration of election. Consider creating an Special Electoral Tribunal, similar to the Sandiganbayan, which may have primary and appellate jurisdiction over election contests and disputes relating to the qualifications of the candidates. COMELEC’s role could be limited to running and managing elections; regulating political parties, campaigns and election finance; and prosecuting election law violators.
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ANNEXES
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Discussion Paper No. 1 TOWARDS A NON-JUDICIAL RECOUNT: EXPLORING THE POSSIBILITY OF ADOPTING AN ADMINISTRATIVE RECOUNT IN THE PHILIPPINES
A. BACKGROUND
The recount procedure in the Philippines has once more taken a “new” shape with the promulgation of COMELEC Resolution No. 9164 which reinstated Resolution No. 8804 with amendments. Under the present rules, the COMELEC reverted back to manual procedures in recounting election results under protest. This completely overturned Resolution No. 9104 issued several months earlier, which prescribed the use of Precinct Count Optical Scan (PCOS) in the conduct of a recount. Despite all the changes undertaken, however, the existing recount procedure remains to be a tedious, expensive and a time-consuming process for all.
Prior to the Automated Election System (AES), a recount may be made in a pre-proclamation controversy or those controversies raised prior to a proclamation dealing with matters affecting the proceedings of the board of canvassers by a candidate or by any registered political party or coalition of political parties before the board or directly with the Commission on Elections.1 Thus, in cases where 1) election returns (ER) canvassed are incomplete or contain material defects, 2) appear to have been tampered with, falsified or prepared under duress and/or contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election, a pre-proclamation recount may be resorted to. The new system however limited pre-proclamation controversies to matters that have to do with the composition and proceedings of the board.2 With the implementation of the Automated Election System (AES), a recount procedure is now only available in an election !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 BATAS PAMBANSA BLG. 881, SEC. 241; see also COMELEC Resolution 8804, Part II, Rule 4, Sec. 6. COMELEC Resolution 8804, Part II, Rule 3, Sec. 1 eliminated the following grounds under BATAS PAMBANSA BLG. 881 when it stated that the basis of the canvass shall be the electronically transmitted results and not the Printed Election Returns: (a) The canvassed ER are incomplete; (b) The canvassed ER contains material defects; and (c) The canvassed ER appears to be tampered with or falsified. 2 COMELEC Resolution 8804, Part II, Rule 3, sec. 1. ! --- 147 ---! ! protest or those which involve a contest between the defeated and winning candidates on the ground of fraud and irregularities in the casting and counting of ballots, or in the preparation of the returns, which is judicial in character.
As matters stand, a recount may be initiated by any losing candidate who has duly filed a certificate of candidacy and has been voted for the same office after filing a sworn petition for election protest.3 The losing candidate must have received the second or third highest number of votes, or in a multi-slot position, was among the next four candidates following the last ranked winner proclaimed, as reflected in the official results of the election contained in the Statement of Votes.4 The protester must pay a filing of fee of Php 10,000.00 plus additional fees if there are claims for damages and attorney’s fees.5 In connection with the recount, the protester must also pay a cash deposit for the 1) recount of the ballots or retabulation of the election returns and 2) delivery to the COMELEC of copies of other election documents, printed or electronic, as well as machines or devices to which electronic election documents are stored or may be processed. He bears all the recount cost, including honoraria for the recount committees. Meanwhile, the protestee, too, as a result must pay for his/her own representatives in the recount committees, as well as for his/her counsels.
The election contest between Mayor Alfredo Lim and losing mayoral candidate Lito Atienza is very instructive at this point. Atienza asked for a recount on the suspicion that the election result was pre- programmed into the machine even prior to the May 10 elections. He also suspected that the machines did not count the votes accurately as the post-election random audit of some machines revealed.
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3 BATAS PAMBANSA BLG. 881, SECS. 250, 251, 252. 4 COMELEC Resolution No. 8804, Part III, Rule 6, sec. 2. 5 COMELEC Resolution No. 8804Part III, Rule 11, sec. 1. ! --- 148 ---! !
Had COMELEC pursued the use of PCOS machines to do the recount, Atienza would have been required to pay Php 700,000 for the rental of the PCOS and Php 300,000 for the purchase of IT equipment and to pay. This is on top of the Php 500 recount expenses per precinct that COMELEC charges and other fees (e.g., for revisor, for lawyers, etc.) which election expert Mr. Telibert Laoc estimates to range from Php 25-35,000 each day of the recount.6
What often impels a losing candidate to challenge election results by means of a recount is the narrow margin of victory between him/her and his/her rival candidate. However, in the recently concluded May 10 elections, losing candidates have resorted to recounts because the automated system failed to disclose the rate of the over votes, no votes, under votes and rejected ballots. Not having any clear idea whether a recount would make any difference, they deem it safer to file a recount anyway. This is aggravated by the fact that the actual accuracy of the PCOS significantly differed from that which the COMELEC committed. The COMELEC’s random manual audit revealed that the machine was accurate to only 99.6 percent as against the 99.995 percent they promised.7 There were also instances where even the individual ballots counted differed.8
B. RECOUNT PROCEDURE IN OTHER JURISDICTIONS
In other jurisdictions, a recount procedure is not limited to election contests and is, in fact, a distinct procedure usually required before a losing candidate can file an election contest. They are generally classified into two: the 1) automatic recount and the 2) initiated recount.
Generally, recount of ballots are allowed in close elections to corroborate or overturn the certified election results. In the case of United States, each State has a specific law for conducting
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6 In Gratitude, Blog of Mr. Telibert Laoc available at
Automatic recount happens if the margin between the winning and losing candidate falls within a certain hard number or percentage of ballots. The State usually pays for the recount costs as many candidates cannot afford to pay for the high cost of a recount. An automatic recount allows a second look to check for the accuracy of the results and assure the electorate that the correct candidate won the election.
An example of this kind of recount can be found in Arizona. Under Arizona law, an automatic recount is commenced when the vote totals :
1. 1/10 of 1 percent of the number of votes cast for both such candidates or upon such measure or proposal; 2. Fifty votes in the case of an office to filled by State electors and for which the total number of votes cast is twenty-five thousand or less; 3. Two hundred votes in the case of an initiated or referred measure or proposal to amend the constitution; and 4. Fifty votes in the case of a member of a legislature. Ten votes in the case of an office to be filled by the electors of a city or town or a county or subdivision of a city, town or county.9
Automatic recounts are also allowed in the State of Colorado. Colorado law provides, thus: “A recount of any election contest shall be held if the difference between the highest number of votes cast in that election contest and the next highest number of votes cast in that election contest is less than or equal to one-half of one percent of the highest vote cast in that election contest.”10
The other type of recount is the initiated recount. This can be further subdivided into two kinds depending on who initiates it. The recount
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9 Ariz. Rev. Stat. Ann. §16-661. 10 Colo. Rev. Stat. § 1-10.5-101(b).
! --- 150 ---! ! can be candidate-initiated or citizen-initiated. Candidate-initiated recount allows candidates to petition for a recount within a specified period after the certification of election results. Depending on the State provision, the petitioner may be required to specify the precincts wherein the alleged canvassing errors occurred, post a bond, pay a fee,11 or attach petitions of support signed by a specified number of registered voters. In the US, thirty-nine States allow candidates to request recounts. Twenty of these allow recount requests regardless of the margin of victory while in the other fourteen states, losing candidates may apply for a recount only if the difference between vote total and the vote total for the candidate or candidates who have more votes is within a certain margin.12 In Vermont, for example, a recount may be requested by “any losing candidate where the difference between the winner and the next candidate is less than 5 percent of the total votes cast for all candidates for that office.”13
Meanwhile, a citizen-initiated recount is where citizens are allowed to petition for a recount although a recount is not guaranteed. Eighteen states in the US allow voters to request recounts. In eleven of these states, voters may request a recount for an election involving candidates or a question, measure or proposition on the ballot.
The exact procedure by which recount is done is defined by law or agency rules and depends largely on the method used to cast the ballot.14 Crucial in this procedure, however, is the determination of voter’s intent. Generally, votes are counted if the voter’s intent “can be determined with reasonable certainty.”15 Usually, paper ballots are reviewed manually while machine cast votes consist only of rereading or reviewing the vote recorder’s count.
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11 IDAHO CODEANN. § 34-2302 (2007) (requiring $100 fee per recounted precinct); N.J. STAT. ANN. §19:28-2 (West 1999) (requiring $25 per recounted district); OR. REV. STAT. ANN. § 258.161 (West 2007) (requiring $15 per recounted precinct to a maximum of $8000). 12 Electioonline.org Briefing Recounts: From Punch Cards to Paper Trails p. 4 13 Electioonline.org Briefing Recounts: From Punch Cards to Paper Trails citing Vermont’s response to electionline. org survey. 14 See Michael A. Carrier, Vote Counting, Technology, and Unintended Consequences, 79 St. John’s L. Rev. 645, 679 (Summer 2005) [hereinafter Vote Counting Technology] (noting Ohio’s requirement of a comparison between a hand count and a sample machine count to determine if the recount must be conducted manually or can be performed by machine). ! --- 151 ---! !
Administrative recounts are different from judicial recounts involved in an election contest. Unlike the latter, the former are intended to uncover specific instances of erroneous vote allocation or mathematical errors that led to the wrong candidate being declared the winner without necessarily dealing with how illegal or fraudulent votes or election administration failures influenced the election’s outcome.
An administrative recount would certainly take less time and money since they do not necessarily involve election protests that require extensive hearing and presentation of evidence. Also, since it merely involves a fact-finding task of recognizing whether a vote is valid, there isn’t much room for argument and the parties can easily avoid time-consuming litigation procedures. Administrative recounts can cut directly into the core of a dispute, thus effectively reducing the number of election disputes. In the final analysis, the availability of administrative recounts which can quickly validate election results bolsters the credibility and integrity of elections.
C. EXPLORING THE POSSIBILITY OF ADMINISTRATIVE RECOUNT IN THE PHILIPPINES
As mentioned earlier, no administrative recount mechanism exists in the Philippines today. Losing candidates can only avail of the recount procedure by filing an election protest with the proper tribunal.
Our election history is littered with classic examples of election protests involving long and tedious recount procedures that have dragged forever. The 1992 election protest of Sen. Miriam Santiago against then President Fidel Ramos which remained unresolved for almost three years eventually made Sen. Santiago decide to abandon her protest by running for the position of senator. Recall that Sen. Santiago lost to President Ramos by only 874,348 votes or 3.8%. Twelve years later, we witnessed the same thing happened to
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15 See, e.g., MASSACHUSETTS SECRETARY OF STATE, ELECTIONS DIVISION, HOW TO REQUEST A RECOUNT.
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Sen. Loren Legarda’s 2004 protest against the victory of then Vice- President Noli De Castro. After three years of litigation, Sen. Legarda finally decided to just run for senator again rather than wait the outcome of her protest.
There are many other examples that would illustrate the expensive, cumbersome and time-consuming recount procedure that we have right now. In most cases, the election protest is concluded a few months before or, worse, even years after the term of office that should have been served by the petitioner. Given this, there is doubtless a need to find a cost-effective alternative.
The discussion above provides a strong case for the adoption of administrative recounts. Given the benefits that administrative recounts entail, it would be prudent to explore the possibility of adopting such a system in the country. But apart from the benefits already discussed, another strong argument for adopting an administrative recount procedure in the Philippines can be found in the inherent flaws of our Automated Election System. Recall that the random manual audit done by the COMELEC showed that the machine was accurate to only 99.6 percent as against the 99.995 percent that they committed. Given this margin of error, there should be an automatic recount when the difference between winning and losing falls outside of COMELEC’s committed accuracy rate. Absent an automatic recount provision, the COMELEC shifts the burden to verify results that fall outside of the accuracy rate of the system that they commissioned to candidates.
D. CONCLUSION
Our recent adoption of the Automated Election System created opportunities to continuously develop new rules and procedures towards a more credible, reliable and cost-effective elections. With the mounting post-election controversies, among those that need urgent and serious attention is our existing recount procedure which, as it is today, remains tedious, expensive and time-consuming. Other jurisdictions offer an insight to the benefits and practicality of making administrative recounts available. It is high time that we explore the possibility of adopting such a system as well.
By: Ricky Sabornay
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TYPES OF RECOUNTS16
AUTOMATIC CANDIDATE INITIATED CITIZEN INITIATED Alabama X X Alaska X X X Arizona X X Arkansas X California X Colorado X X Connecticut X Delaware X X District of Columbia X X X Florida X Georgia X X Hawaii Idaho X X Illinois X X Indiana X X Iowa X Kansas X X Kentucky X Louisiana X Maine X X Maryland X X Massachusetts X X Michigan X X X Minnesota X X Mississippi Missouri X X Montana X X Nebraska X X Nevada X X New Hampshire X X New Jersey X X New Mexico X New York North Carolina X North Dakota X X Ohio X X X Oklahoma X X Oregon X X X Pennsylvania X X Rhode Island X South Carolina X South Dakota X X X Tennessee Texas X X X Utah X X Vermont X X Virginia X X Washington X X X West Virginia X Wisconsin X X Wyoming X X X
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Discussion Paper No. 2 TOWARDS A MORE EFFICIENT INVESTIGATION AND RESOLUTION OF ELECTION OFFENSE CASES
A. BACKGROUND
Effective and efficient investigation and prosecution of election offenses is very important since it ensures not only that the rule of law prevails but also that elections result from a fair, honest and credible process. Making offenders expeditiously accountable will become a deterrent in future violations.
The Omnibus Elections Code defines election offenses as criminal violations of elections laws including, among others, vote-buying and selling,1 conspiracy to bribe voters, 2 coercion of subordinates, 3 threats, intimidation, terrorism, use of fraudulent device or other forms of coercion,4 coercion of election officials and employees,5 use of undue influence6 and appointment or use of special policemen, special agents or the like during the campaign period, on the day before and on the election day.7 Other election offenses are found in special elections laws like the Voter’s Registration Act of 1996,8 the Fair Election Act of 20019 and the Automated Elections System Act.10 Until the Automated Elections System Act, these election offenses are punished uniformly with one (1) to six (6) years imprisonment. Just like any other criminal case, these offenses are tried by the courts where proof beyond reasonable doubt is required for conviction.
Any person who violates elections laws may be prosecuted for election offenses. Candidates and political parties who commit any
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1 BATAS PAMBANSA BLG., 881, SEC. 261(a). 2 BATAS PAMBANSA BLG., 881, SEC. 261(b). 3 BATAS PAMBANSA BLG., 881, SEC. 261(d). 4 BATAS PAMBANSA BLG., 881, SEC. 261(e). 5 BATAS PAMBANSA BLG., 881, SEC. 261 (f). 6 BATAS PAMBANSA BLG., 881, SEC. 261 (j). 7 BATAS PAMBANSA BLG., 881, SEC. 261 (m). 8 REPUBLIC ACT NO. 8189. 9 REPUBLIC ACT NO. 9006 10 REPUBLIC ACT NO. 9369 ! --- 155 ---! ! of the earlier mentioned acts e.g., bribing the voters or exerting undue influence over election officials and employees, voters who carry deadly weapons in the polling place during elections and election administrators and workers who connive with the candidates in committing electoral fraud can all be subject of prosecution.
Under the Omnibus Election Code, COMELEC has the exclusive power to investigate and prosecute election offenses, with the other prosecutorial arms of government as deputies.11 This was however amended by the Republic Act No. 9369, which makes the prosecutorial powers of COMELEC over election offenses concurrent with other prosecuting arms of the government.12With this amendment, DOJ prosecutors are no longer just deputies but may now prosecute election offenses independent of the COMELEC.
B. THE EXISTING COMELEC RULES OF PROCEDURE
Under the existing rules of procedure of COMELEC, investigation and prosecution of election offenses is initiated by a complaint filed motu proprio by the Commission or upon a verified written complaint filed by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the party- list system or any accredited citizens arms of the Commission with the offices of the Election Registrars, Provincial Election Supervisors (PES), and the Regional Election Directors. Filing of complaint before the State Prosecutors, Provincial Fiscals or City Fiscals is still in the existing COMELEC Rules but the same has been rendered unnecessary in the light of the RA 9369 giving COMELEC and the prosecutorial arms of government concurrent jurisdiction to conduct investigation and preliminary investigation.
Complaints initiated motu proprio by the Commission, or filed with the Commission by any aggrieved party are referred to the Law Department for investigation. Upon direction of the Chairman of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
11 BATAS PAMBANSA BLG., 881, SEC. 265. 12 SEC. 43. “Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows "SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same." ! --- 156 ---! !
Commission, the preliminary investigation may be delegated to any lawyer of said Department, or to any of the Regional Election Directors or Provincial Election Supervisors, or any lawyer of the Commission.
If on the basis of the complaint, affidavits and the supporting evidence, the investigating officer finds no ground to continue with the inquiry, he or she shall recommend the dismissal of the complaint and shall within five (5) days from the rendition of his or recommendation, forward the records of the case to: 1) The Director of the Law Department of the Commission in cases investigated by any of the Commission lawyers or field personnel, and 2) The State Prosecutor, Provincial Fiscal or City Fiscal, as the case may be. Otherwise, he or she shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt within which to submit counter-affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant.
Once the investigation is deemed concluded, the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
Under existing rules, the preliminary investigation must be terminated within twenty (20) days after receipt of the counter- affidavits and other evidence of the respondents, and resolution thereof shall be made within five (5) days thereafter. If the investigating officer finds no cause to hold the respondent for trial, he shall recommend dismissal of the complaint, but if he finds cause to hold the respondent for trial, he shall prepare the resolution, and the corresponding information wherein he shall certify under oath that he has examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence.
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Once the records are forwarded to the Law Department or the State Prosecutor, Provincial or City Fiscal, they are to take appropriate action within ten (10) days from receipt.
In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law Department still needs to review and evaluate the recommendation of said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same shall be included in the agenda of the succeeding meeting en banc of the Commission. The information can only be filed if the Commission approves the filing of an information in court against the respondent/s and then only after such approval can the Director of the Law Department prepare and sign the information for immediate filing with the appropriate court.
Under existing rules, the State Prosecutor, Provincial or City Fiscal are required within five (5) days from the rendition of their resolution on recommendation or resolution of investigating officers to make a written report thereof to the Commission. They shall likewise submit a monthly report on the status of cases filed with and/or prosecuted by them or any of their assistants pursuant to the authority granted them.
C. TOWARDS A MORE EFFICIENT INVESTIGATION OF CRIMINAL OFFENSES
1. Regional Election Directors should be authorized to File Information
The existing procedure requiring the forwarding of cases to the Law Department before the Commission en banc approves it and then return it to the Law Department takes too much time resulting in delays in the investigation and prosecution of election offenses. This layer can be eliminated in order to expedite the procedure.
The resolution of Preliminary Investigation can be limited to the Regional Election Directors analogous to the role of the Provincial/City or Chief State Prosecutor in criminal cases. It is therefore proposed that the PES to conduct the Preliminary Investigation. The PES will then submit its recommendation to the RED whose approval may lead to the filing of the information or dismissal of the complaint. If the recommendation is to file an
! --- 158 ---! ! information and the RED approves it, then the RED will file the information. If the recommendation is to dismiss and the RED approves the same, then the complaint will be dismissed.
Any party aggrieved by the decision of the RED may file a Petition for Review with the COMELEC en banc; otherwise, the RED resolution will stand and lead to the filing of the complaint and the prosecution of the election offense.
In anticipation of legal questions that this innovation might give rise to, it is submitted that under existing laws the RED may have the authority to file an Information. This exercise of power finds basis first, in Section 43 of the Automated Elections System Act clearly allows COMELEC’s “duly authorized legal officers” to conduct preliminary investigation13 and in jurisprudence. No other than the Highest Court of the Land has declared that the prosecution of election laws violators involves the exercise of the COMELEC’s administrative powers.14 There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. Juxtaposed this with the clear provision of the law, the RED can certainly have the power to file an information concerning violations of election laws.
2. Allowance for Anonymous Complaints
Another innovation that may be introduced is the allowance of anonymous complaints. It is public knowledge that rampant violence, threats and brutal killings seals most cries of election offenses and often witnesses to these election crimes are lowly teachers, watchers, soldiers, volunteers and ordinary citizens who stand powerless against powerful officials and their supporters. Under the present rules, for investigation and prosecution to prosper, a verified complaint must first be filed. However, given the situation earlier described many complainants and witnesses are afraid to come out for fear for their life. Given these conditions, there should be a way to make offenders accountable without necessarily compromising the identity of complainants and witnesses.
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13 Id. 14 Baytan v. COMELEC, G.R. No. 153945, Feb 4, 2003 ! --- 159 ---! !
This is made possible by allowing anonymous complaints similar to provisions of the Ombudsman Act of 1989.15 It is submitted that anonymous complaints for as long as they are substantial should be entertained by COMELEC in keeping with their power to motu proprio file complaints and prosecute cases.
3. Procedure for Fact Finding Investigations
The allowance for anonymous complaints can be subsumed under the authority of the COMELEC to conduct fact-finding investigations. However, it is noticed that at present, there is no clear procedure for the poll body’s conduct of fact-finding investigations. It is therefore also recommended that the revised rules on preliminary investigation contain provisions on fact-finding investigations as initial step that would cover instances where the COMELEC motu proprio files a complaint and the proposed allowance for anonymous complaints.
4. Automatic Review for Electoral Sabotage
Taking cognizant of the sensitive nature of some election offenses, it is proposed that here should be an automatic review by the COMELEC en banc of cases involving election sabotage as defined in SEC. 42 of 9369 amending section27 (b) of Republic Act No. 6646 and those that involve COMELEC personnel or officials. This safeguard is necessary to ensure that a more thorough evaluation of these cases will be applied.
With these proposals, it is expected that resolution of preliminary investigation on election offenses will be more expeditious and that more election offenses will be discovered with the assurance that identity of complainants and witnesses will not be revealed.
By: Ricky Sabornay
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15 SEC. 13. “Mandate. - The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.”
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Discussion Paper No. 3 TOWARDS A FAIR AND REAL RIGHT OF SUBSTITUTION OF CANDIDATES
A. BACKGROUND
Someone once wrote “the content of the law at any given time always advantages some and disadvantages others.”1 This is specially true in the case of the provision on the substitution of candidates under the Omnibus Election Code, which provides:
“If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of Election Day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.”2
Even a cursory reading of said provision on substitution shows that it gives advantage to political parties and impacts against independent candidates, as the latter cannot be substituted in case of death, disqualification or withdrawal. Furthermore, it may be said that it discriminates those candidates whose certificates of candidacy have been denied due course and cancelled under its Sec. 78.3
It is with this lens that this short paper reviews the current legal framework on the substitution of candidates with the hope of arriving at a more fair and real rules on this matter.
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1 HL. WEIBERG (1969), POLITICAL VIOLENCE – OHE BEHAVIOURAL PROCESS, p. 66. 2 BATAS PAMBANSA BLG. 881, SEC. 77. 3 Miranda v. Abaya, 311 SCRA 617 (1999). ! --- 161 ---! !
B. THE RULE ON SUBSTITUTION OF CANDIDATES
The most recent legislative expression on the substitution of candidates is contained in Sec. 12, Rep. Act No. 9006,4 which states:
“In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter; Provided, however; That if the substitute candidate of the same family, this provision shall not apply.”
This provision amends Sec. 12, Rep. Act No. 8486,5 which states:
“Substitution of candidates. – In case of valid substitutions after the official ballots have been printed, the votes cast for the substitute candidates shall be considered votes for the substitutes.”
Rep. Act No. 8436, enacted on 22 December 1997, gives authority to the COMELEC conduct an automated election. In contrast, Rep. Act 9006, enacted on 12 February 2001, establishes policies concerning fair election practices. With the material disconnect between the two laws, therefore, necessitates the harmonization of the apparently conflicting provisions to achieve the purpose of having a fair election practice on the face of the mandated automated election system.
1. The physical impossibility of implementing Republic Act No. 9006 in an automated system of election
It is to be noted that after the enactment of Rep. Act No. 9006, which amended Sec. 12 of Rep. Act No. 8436, Congress passed Rep. Act No. 9369 amending many portions of Rep. Act No. 8436 without
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4 “An Act to Enhance the Holding of Free Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices.” 5 “An Act Authorizing the Commission on Elections to Use an Automated Election System in the 11 May 1998 National or Local Elections and in Subsequent or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes.” ! --- 162 ---! ! touching the original Section 12 of Rep. Act No. 8436. For this reason, it appears that Sec. 12, Rep. Act 9006 governs the mechanics of voting for and counting of the votes for substitute candidates. But the implementation of this provision posed technological problems since the chosen AES did not and apparently cannot provide for the writing in of substitutes in the ballots used. With this dilemma, the COMELEC made the following administrative interpretation Minute Resolution No. 10500,6 viz.:
“x x x the Commission RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Commissioner Rene V. Sarmiento that notwithstanding the provisions of Section 2 of Republic Act No. 9006, the rule on substitution pursuant to Section 12 of Republic Act No. 8436 hereunder quoted to wit:
Section 12. Substitution of Candidates
"In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered votes for the substitutes."
is reinstated and effective, absent any express provision in Republic Act 9369 to the contrary.
“There is therefore a rule on substitution, Sec. 12 of R.A. 8436, without any need for legislative action.”
COMELEC’s administrative interpretation of the prevailing rule on the substitution of candidates did not sit well with some quarters, as it was based mainly on shaky statutory construction.
However, the COMELEC’s action can find justification to the fact that the provision of Rep. Act Bo. 9006 would be impossible to implement under the automated election system. To quote the Supreme Court:
We test a law by its results. A law shall not be interpreted so as to cause an injustice. There are laws which are generally valid but may seem arbitrary when applied in a particular sense because of its particular circumstances.7
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6 Dated 20 April 2010. 7 Cometa v. Court of Appeals, 351 SCRA 304 (2001). ! --- 163 ---! !
It appears that Sec. 12 of Rep Act No. 9006 would result in a physical impossibility in an automated election system like the PCOS AES implemented in 10 May 2010 as it cannot accommodate/read names that are handwritten on the ballots. Based on the adopted system, the results could result to a skewed reading of the electorate’s will as votes for substitute candidates which are handwritten could not be considered even if the electorate overwhelmingly votes for them.
This paper does not however seek to provide a technological solution for the technologically induced problem of impossibility of reading handwritten votes.
What it seeks is to present a case for amending Sec. 12 of Rep. Act No. 9006 as a way of solving such technologically induced problem, a task so suited to the nature of the legislature.
Although the COMELEC is task to implement election laws, “it is not obliged to perform an impossibility.”8 Aside from this, there are other reasons which may constitute justification for amending Sec. 12 of Rep. Act No. 9006 so that the right of real substitution will not remain an illusion.
2. Sec. 12 of Rep. Act No. 9006 violates certain imperatives:
There is another justification for the amendment/repeal of Sec. 12, Rep. Act 9006 and the reinstatement of Sec. 12 of Rep. Act No. 8436 or something that would reconcile the right of substitution of candidates with an automated election.
Said justification has constitutional underpinnings. The constitution mandates Congress to prohibit political dynasties to “widen opportunities of competent, young and promising poor candidates to occupy important positions in the government.
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8 AkbayanYouth v. Comelec, 355 SCRA 318 (2001) ! --- 164 ---! !
While it is true we have government officials who have ascended to power despite accident of birth, they are exceptions to the general rule. The economic standing of these officials would show that they come from powerful clans with vast economic futures.”9
It might not be amiss to point out that, while Congress has not so far defined a political dynasty, making valid a vote in case of substitution simply because the substituted candidate and the substitute have the same family name will perpetuate political power in said family by accident of birth and name.10
A case could also be made that the classification based on name alone is an invalid one and therefore violates the constitutional protection of equality before the law which guarantees that:
[e]ach individual is dealt with as an equal person in the law, which does not treat the person because of who he is or what he is or what he possesses. xxx.11
It is suggested that the amendment to the provision on substitution of candidates to make them conform to the realities of an automated election while maintaining a free and fair election should be made in such a way that, if approved by the President of the Philippines, the COMELEC will have ample time to issue valid implementing rules therefor before the 2013 election is upon us.
Finally, how the amended provision on substitution will be worded so that it will not clash with constitutional imperatives or with technological changes should depend on Congress. However, it is hoped that what will emerge will be a law that would not give any candidate an undue advantage because of the name he carries and
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9 BERNAS, THE 1987 CONSTITUTION OF THE PHILIPINES: A COMMENTARY, p. 99. 10 Accordingly, the COMELEC has implemented the provision on substitution in Rep. Act No. 9006 in the Barangay and Sangguniang Kabataan elections of 2010 by providing in Sec. 10 of Resolution No. 9029 dated 21 Sept. 2010 that: “There shall be no substitution of candidates for sangguniang kabataan elections, but substitution by the spouse shall be allowed for candidates for barangay elections.” 11 BERNAS, THE 1987 CONSTITUTION OF THE PHILIPINES: A COMMENTARY, p. 136. ! --- 165 ---! ! that with such amendment, a fair and real right of substitution of candidates would be given the electorate.
3. Amendment authorizing the COMELEC to set a deadline for substitution candidates who withdraw:
The standard by which the validity of all substitution of candidates are to be measured is still Section 77 of the Omnibus Election Code which allows substitution of a candidate when an official candidate of a registered or accredited political party: (1) has withdrawn; (2) has died; or (3) was disqualified by final judgment. The substitution of candidates under all these three circumstances can be made until the mid-day of the elections.
For the 10 May 2010 elections, however, COMELEC made an exception for candidates who withdrew and set the filing of candidacy for the substitute only up to 14 December 2009. The substitute for an official candidate who dies or was disqualified by final judgment may still file his/her certificate of candidacy up to mid- day of election day.12
The early deadline was “to enable the inclusion of the substitute candidate’s name in the ballot.”13
Perhaps, the real impetus for the imposition of an earlier deadline for the filing of candidacy of the substitute candidate is that, unlike death and disqualification by final judgment, withdrawal is for all intents and purposes a voluntary act that is dependent on the will of the original candidate. The candidate presumably has the leisure to pick the date of his withdrawal. Setting an earlier deadline, therefore, is a balancing of interest of the right of the political party to substitution and the requirement of automated elections under Rep. Act No. 8436, as amended by Rep. Act No. 9369.
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12 Sec. 13, COMELEC Resolution No. 8678 promulgated on 6 Oct. 8678 entitled “GUIDELINES ON THE FILING OF CERTIFICATES OF CANDIDACY AND NOMINATION OF OFFICIAL CANDIDATES OF REGISTERED POLITICAL PARTIES IN CONNECTION WITH THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS” 13 Kristine L. Alave, “Comelec issues new guidelines for candidate substitution,” Inquirer.net, 9 Oct. 2009.
The important thing to remember about setting an earlier deadline is that substitution thru withdrawal is a potent tool to ensure political participation of political parties when there are pending petitions to deny due course/ cancel certificates of candidacy under Section 74 of the Omnibus Election Code14 or petitions for disqualification under Section 68 are filed against the original candidate. Instead of battling it out before the COMELEC, the original candidate may just opt to withdraw his candidacy and provide a party mate in his stead.
For the 10 May 2010 elections, the COMELEC set the period for filing petitions to deny due course/cancel certificate of candidacy within five days from the last day for filing of certificate of candidacy but not later than 25 days from the filing of the certificate of candidacy.15 Since the filing of certificate of candidacy was set from 20 November 2009 to 30 November 2009,16 the last day for filing the petition to deny due course would be 5 December 2009. The deadline of 14 December 2009 set by the COMELEC for the filing of certificate of candidacy of the substitute was therefore reasonable and practical enough for political parties to effect the withdrawal of the candidate with a pending petition to deny due course.
The same cannot be said, however, for petitions for disqualification filed under Section 68 of the Omnibus Election Code since, the result of the petition is not within the control of the candidate so these can be filed even up to the day before promulgation.17
Needless to state, the foregoing begs the question of whether or not COMELEC can validly shorten the statutory right to withdraw even mid-day of election and still be substituted. Jurisprudence is of course replete with cases declaring that for an administrative rule or regulation to be valid it must not be contrary to the law it !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
14 In cases of petitions to deny due course/cancel certificate of candidacy, substitution can be made as long as the withdrawal of the original candidate is done before the resolution granting the petition since, per the doctrine enunciated in Miranda v. Abaya (311 SCRA 617), a cancelled certificate does not give rise to a valid candidacy; thus, if there is no candidate in the first place, then there is no occasion for substitution since the concept of substitution presupposes the existence of the person to be substituted. 15 Sec. 15, COMELEC Resolution No. 8678 16 Sec. 5, COMELEC Resolution No. 8678 17 COMELEC Rules of Procedure, Rule 25, Sec. 3 – The petition shall be filed any day after the last day for filing of certificates of candidacy but not later that the date of the proclamation. ! --- 167 ---! ! implements. Certainly, a COMELEC rule/guideline that shortens/limits a substantive right given by the OEC is not valid.
Accordingly, since withdrawal of a candidate, unlike death or disqualification, is generally within the control of a candidate, there is reason to set a deadline therefor so that the substitute’s name could be included in the ballot under the automated election. Sec. 77 could therefore be amended to give COMELEC the power to set the deadline for withdrawal by way of an implementing rule. On the other hand, the deadline would be prejudicial to candidates against whom disqualification cases would be filed after the deadline for they would no longer have the option of substitution based on withdrawal.18
4. Amendments to include substitution for candidates whose certificate of candidacy has been denied due course or cancelled
Proceeding now to the third ground allowed under the OEC to effect substitution, i.e., disqualification for any cause by final judgment, the Supreme Court has delimited this provision on disqualification by excluding those candidates whose certificates of candidacy have been denied due course or cancelled before election day.19
A petition to deny due course/cancel certificate of candidacy is based on material misrepresentation of information required under Section 74 of the Omnibus Election Code.20 On the other hand, a petition for disqualification under Section 68 of the Omnibus Election is based on a candidate’s commission of certain prohibited acts.21 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18 Their best hope in such a case is for the COMELEC to resolve the disqualification case before election day. If the decision is adverse to them, then they should just do a Richard Gomez and let the decision attain finality and effect the substitution thereafter based on disqualification by final judgment. 19 See Miranda v. Abaya, supra. 20 SEC. 74. Contents of certificate of candidacy. — The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign ! --- 168 ---! !
In this connection, it would be best to revisit the Supreme Court’s ruling in Miranda v. Abaya,22 as follows:
“While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. Unless a candidate has officially changed his name through a court approved proceeding, a certificate shall use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware of such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires.
COMELEC Rules of Procedure, Rule 23, Sec. 1. Grounds for Denial of Certificate of Candidacy. – A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition or political parties on the exclusive ground that any material representation contained therein as required by law is false.
21 SEC. 68. Disqualifications. – Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received, or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6 shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws.
COMELEC Rules of Procedure, Rule 25, Sec. 1. Grounds for Disqualification. – Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. 22 Supra. ! --- 169 ---! !
of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.”
While the Supreme Court has justified the exclusion by stating that --
“. . . under the express provisions of Section 77 of the Code, not just any person, but only ‘an official candidate of a registered or accredited political party’ may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that ‘a cancelled certificate does not give rise to a valid candidacy’ (p. 13).
A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. …
After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.” this rationale seems to be based on a mere technicality since it has more to do with a candidate’s certificate of candidacy rather than his qualifications to run for office. The dissenting opinion of Justice Romero in Miranda proves instructive, thus: ! --- 170 ---! !
The term "SUBSTITUTION" ordinarily means "replacement", or "turning to an alternative." Applying the evident intention of the law, as literally expressed in Section 77 of the Omnibus Election Code, that which is sought to be replaced is not the certificate of candidacy previously filed, but to replace the candidate who died, withdrew or was disqualified. The provision on substitution outlined under Section 77 of the Omnibus Election Code, enables the registered or accredited political party to field a substitute candidate to replace the candidate who died, withdrew or was disqualified. Private respondent's assertion that "it is the certificate of candidacy which is to be substituted or replaced by the substitute certificate of candidacy of herein petitioner," is grossly inaccurate and logically flawed. Xxx
In both petition to deny due course/cancel certificate of candidacy and petition for disqualification, the petitioner is seeking the disqualification of the original candidate so there is actually no real distinction between the two petitions insofar as the effect of the grant thereof is concerned since, in both cases, the respondent would be disqualified from running for public office. Again, Justice Romero:
“. . . even if the petition filed by private respondent was denominated as a ‘Petition to Deny Due Course to and/or Cancel Certificate of Candidacy,’ the fact remains that Jose ‘Pempe’ C. Miranda, in view of the term limits fixed under Section 8, Article X of the Constitution and Section 43(b) of the Local Government Code, is DISQUALIFIED to seek the mayoralty post a fourth time.
In fine, even if the petition was filed pursuant to Section 78, in relation to Section 74 of the Omnibus Election Code, the COMELEC First Division correctly found Jose ‘Pempe’ C. Miranda to be ‘DISQUALIFIED,’ since the false material representation is essentially based on his disqualification under relevant statutory and constitutional provisions.
Indeed, the assertion of private respondent that there is a world of difference between "disqualified" and "denied due course and/or canceled" for purposes of substitution, is untenable. The hair-splitting distinction which private respondent arduously explained, and to which the majority subscribes, cannot, by any stretch of legal hermeneutics, be construed as sanctioning a conclusion that a petition to deny
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due course to and/or cancel a certificate of candidacy, when granted, excludes a finding that the candidate concerned is disqualified by virtue of his ineligibility as prescribed under statutory and constitutional law.
The choice of the people should not be limited by the hair-splitting distinctions which deprive them of a chance to vote for a qualified candidate in substitution of one whose certificate of candidacy was denied due course or cancelled. However, to obviate any dispute as to whether a substitution can be undertaken in such cases, the list in Sec. 77 should be amended to include the same.
Otherwise stated, since substitution of candidates impacts upon the people’s right to choose the best individuals to man the government, the law on substitution should give them the widest choice possible by not arbitrarily stating who could be substituted and who could not. by: Atty. Isobel T. Solis
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