Handbook on Automated Elections, Canvassing and General Election Monitoring (U.P. Law Center, PPCRV)

UNIVERSITY OF THE PHILIPPINES LAW CENTER INSTITUTE OF GOVERNMENT AND LAW REFORM (IGLR) Copyright© 2010.All rights reserved. Preface The Philippines is about to face a litmus test at it embarks on the first nationwide automated elections in May 2010, and the whole world is watching. Thus, initiatives geared at enhancing the transparency and credibility of the electoral process become more critical than ever. Safeguarding the integrity of elections is the duty not only of the government but also of every single Filipino citizen. Knowledge is key to a pro‐active, informed, and effective citizen‐driven monitoring effort. With these in mind, the University of the Philippines Institute of Government and Law Reform (IGLR) worked on the project to develop a Handbook on Automated Elections, Canvassing, and General Election Monitoring. The project seeks to cement a solid understanding of election rules and regulations, particularly those covering automated elections. The Handbook is written in question‐and‐answer form, for easy reference and understanding. It is expected to be a useful tool for the voting public as well as teachers, lawyers, and volunteers who will be playing a key role in the 2010 elections either as election inspectors, canvassers, watchers, or independent monitors. The Handbook covers a comprehensive discussion of all phases of elections—pre‐election (Board of Election Inspectors, Watchers, Ballots and other election documents), election proper (Casting and Counting of Votes), and post‐election (Canvassing, Pre‐proclamation Controversies, and Election Contests). It also integrates a discussion of the various acts that constitute election offenses in these three stages, in order to aid election monitors to properly identify and promptly act to report these matters to the appropriate authorities. Through this Handbook, the UP IGLR seeks to contribute to ensure a free, orderly, and honest 2010 elections. Table of Contents Glossary and Abbreviations I. BOARD OF ELECTION INSPECTORS (BEI) A. Appointment, Qualifications, Vacancies B. Functions and Responsibilities II. WATCHERS III. OFFICIAL BALLOTS AND OTHER ELECTION FORMS AND SUPPLIES IV. PRE‐VOTING PROCEDURES V. CASTING OF VOTES VI. COUNTING OF VOTES VII. ELECTION RETURNS VIII. POST‐COUNTING AND POST‐TRANSMISSION PROCEDURES IX. CANVASS A. The Board of Canvassers (BOC) B. Manner of Canvassing C. Persons Present During Canvassing D. The COCs – Effect and their distribution E. Remedies X. PRE‐PROCLAMATION CONTROVERSIES XI. ELECTION PROTEST and QUO WARRANTO IX. ELECTION OFFENSES Annex 1: ELECTION OFFENSES i 1 1 3 6 11 14 15 29 33 38 40 40 46 59 60 69 77 86 96 1 Table of Figures Figure 1: BEI Procedures before voting Figure 2: Samples of Shading Figure 3: Location of Feeder in the PCOS Machine Figure 4: Procedure in Assisting Disabled/Illiterate Voters Figure 5: Closing the Voting and Counting the Ballots Figure 6: Printing and Transmitting the ERs Figure 7: Steps after termination of counting of votes and announcement of results Figure 8: Preliminaries to Canvassing Figure 9: CCS Initialization Figure 10: Starting the Canvassing Figure 11: Monitoring Data Transmission Figure 12: Procedure in case of Untransmitted Results 14 20 22 26 33 34 38 46 47 48 48 49 Figure 13: Generation and Printing of Consolidated Canvass Report Figure 14: Generation and printing of COC Figure 15: Transmission of Results Figure 16: Printing of Remaining COC Reports Figure 17: Generation and Printing of SOVs Figure 18: Generating COCP Figure 19: Printing of Audit Log Figure 20: Post Printing Activities Figure 21: Backing up CCS results Figure 22: Shutting down CCS Figure 23: Preproclamation Cases Filed Directly with BOC Figure 24: Preproclamation Cases Filed Directly with COMELEC Figure 25: Procedure if illegality of BOC proceedings is discovered after proclamation 50 51 52 52 53 54 55 55 56 57 81 82 82 List of Cited Laws/Issuances* 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Batas Pambansa Blg. 881 Republic Act No 7166 Republic Act No. 8436 Republic Act No. 9369 COMELEC Resolution No. 8436 COMELEC Resolution No. 8739 COMELEC Resolution No. 8786 COMELEC Resolution No. 8803 COMELEC Resolution No. 8804 COMELEC Resolution No. 8809 COMELEC Resolution No. 8811 * These links take you outside the UP Law Center website. Glossary and Abbreviations ab initio ‐ from the very start Audit Log ‐ refers to the document that contains the list of all activities performed by the PCOS machines from the 1 time that it was powered‐on, until the time when closed. a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election results, and 2 other electoral processes. Board of Canvassers Board of Election Inspectors the Omnibus Election Code Automated Election System or AES ‐ BOC BEI BP Blg. 881 ‐ ‐ ‐ CCS Canvass Proceedings ‐ ‐ Consolidation and Canvassing System refers to the proceedings that involve the consolidation of precinct election results at the municipal, city of district level; district election results at the municipal or city level; municipal or city election results at the provincial level; and provincial election results at the national level, be it the COMELEC or Congress. It also include the formal proclamation of the election winners 3 at the various canvass levels. a document in electronic and printed form containing the total votes in figures obtained by each candidate in a city/municipality/district/ province as the case may be. . These may be in electronic and printed form. The electronic COC shall be the official canvass results in the 4 aforementioned corresponding jurisdictions. the Commission on Elections refers to the machine used at the canvass proceedings to consolidate precinct results, municipal and city results, provincial results, as the case may be, for purposes of getting the total votes of all candidates at a particular 5 canvass level. a public place within the city/municipality or in such other places as may be designated by the COMELEC where the official ballots cast in various precincts of the city/ City/municipal/district/provincial certificate of canvass or COC ‐ COMELEC Consolidation Machine ‐ ‐ Counting Center ‐ 1 COMELEC Resolution No. 8804 (22 March 2009), Part I, Rule 2, Section 1. Republic Act No. 9369 (2007), Section 2. COMELEC Resolution No. 8804 (22 March 2009), Part I, Rule 2, Section 1. 4 Republic Act No. 9369 (2007), Section 2. 5 COMELEC Resolution No. 8804 (22 March 2009), Part I, Rule 2, Section 1. 2 3 i municipality shall be counted. Polling places or voting centers may also be designated as counting centers. 6 Counting machine ‐ a machine that uses an optical scanning/mark‐sense reading device or any similar advanced technology to 7 count ballots. a device used to electronically store counting and 8 canvassing results, such as a memory pack or diskette. Department of Education a person with impaired capacity to use the AES. 9 the Election Day Computerized Voters List refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print‐out or output, readable by sight or other means, which accurately reflects the 10 electronic document. refers to the copy of the election return in electronic form generated by the PCOS machine that is electronically transmitted to the Municipal or City Board of Canvassers for the official canvass, to the COMELEC Back‐Up Server, and to the Server for the dominant majority and dominant minority parties, the citizens' arm authorized by the COMELEC to conduct a parallel count, and the 11 Kapisanan ng mga Brodkasters sa Pilipinas or KBP ; a document in electronic and printed form directly produced by the counting or voting machine, showing the date of the election, the province, municipality and the precinct in which it is held and the votes in figures for each candidate in a precinct in areas where AES is 12 utilized. conveying data in electronic form from one location to 13 another. Election Records and Statistics Department as a whole; with all its members Data storage device ‐ DepEd Disabled voter EDCVL Electronic document ‐ ‐ ‐ ‐ Electronic election returns ‐ Election Returns or ER ‐ Electronic transmission ‐ ERSD En Banc ‐ ‐ 6 7 Republic Act No. 9369 (2007), Section 2. Republic Act No. 8436 (1997), Section 2. 8 Republic Act No. 8436 (1997), Section 2. 9 Republic Act No. 9369 (2007), Section 2. 10 COMELEC Resolution No. 8804 (22 March 2009), Part I, Rule 2, Section 1. 11 COMELEC Resolution 8804 (22 March 2010), Part I, Rule 2, Section 1. 12 Republic Act No. 9369 (2007), Section 2; See also COMELEC Resolution 8804 (22 March 2010), Part I, Rule 2, Section 1. 13 Republic Act No. 9369 (2007), Section 2. ii KBP Local Ballot ‐ ‐ the Kapisanan ng mga Broadkaster ng Pilipinas refers to the ballot on which the voter will manually write the names of the candidates of his/her choice for member of the House of Representatives, governor, vice‐ governor, members of the provincial board, mayor, vice‐ 14 mayor, and members of the city/municipal council. by itself; upon its own initiative motu proprio ‐ Official ballot ‐ where AES is utilized, refers to the paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter 15 recorded or to be recorded in electronic form. PCOS ‐ Precinct Count Optical Scan. It means a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to 16 be counted, is located in every precinct . Posted Computerized Voters List place where voters cast their votes during election refers to any question pertaining to or affecting the proceedings of the BOC which may be raised by any candidate or by any registered political party or coalition of political parties before the BOC or directly with the COMELEC, or any matter in relation to the preparation, transmission, receipt, custody and appreciation of the ERs. refers to the copy of the election returns printed by the PCOS machine on a paper, and authenticated by the manual signatures and thumbmarks of the members of 17 the Board of Election Inspectors (BEI) . is a prerogative writ requiring the person to whom it is directed to show what authority he has for exercising some right or power or franchise he claims to hold entitled “An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor and for Other Purposes” entitled “An Act Authorizing the Commission on Elections to Use an Automated Elections in the 11 May 1998 National or Local Elections and in Subsequent PCVL Polling place Pre‐proclamation Controversy ‐ ‐ ‐ Printed Election Returns ‐ Quo Warranto ‐ Republic Act No 7166 ‐ Republic Act No. 8436 ‐ 14 15 Republic Act No. 8436 (1997), Section 2. Republic Act No. 9369 (2007), Section 2. 16 COMELEC Resolution No. 8804 (22 March 2010), Part I, Rule 2, Section 1. 17 COMELEC Resolution No. 8804 (22 March 2010), Part I, Rule 2, Section 1. iii National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes”. Republic Act No. (R.A.) 9369 ‐ the law which amended Republic Act No. 8436, entitled "An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or 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. 7166 and other 18 Related Election Laws”. a document containing the votes obtained by candidates 19 in each precinct in a city/municipality refers to a polling place, counting center, municipal or 20 provincial canvassing center. Voters Registration Record Statement of Votes or SOV ‐ Station ‐ VRR ‐ 18 Republic Act No. 9369 (2007), Section 1. Flauta v. COMELEC, G.R. No. 184586, 22 July 2009. 20 Republic Act No. 9369 (2007), Section 2. 19 iv I. BOARD OF ELECTION INSPECTORS (BEI) A. Appointment, Qualifications, Vacancies 1. Who appoints the BEI? The COMELEC, directly or through its Election Officer, 21 appoints a BEI for each precinct. 22 2. What is the composition of a BEI? The BEI is selected from the list of all public school teachers submitted by the Department of Education's (DepEd) highest official within the city/municipality/school district. 23 Public school teachers with permanent appointments and those who served in the immediately preceding national and Local Elections shall be preferred. 24 It is composed of a Chairman and two (2) members, where one of the members shall be designated as the poll clerk. 3. Can persons other than public school teachers be appointed as BEI members? Yes. When there are not enough public school teachers, the following may be appointed as BEI members: a. teachers in private schools; b. employees in the civil service; or c. citizens of known probity and competence who are registered voters of the city or municipality. In all cases, however, the BEI Chairman must be a public school teacher. 25 4. What qualifications must be met in order for a person to be appointed as BEI member? No person shall be appointed as BEI Chairman or member, whether regular, substitute or temporary, unless he/she: a. is of good moral character and irreproachable reputation; b. is a registered voter of the city or municipality; 21 COMELEC Resolution No. 8786 (4 March 2010), Section 1 (1). Batas Pambansa Blg. 881 (1985), Section 164. 23 COMELEC Resolution No. 8786 (4 March 2010), Section 1 (1). 24 COMELEC Resolution No. 8786 (4 March, 2010), Section 1 (2). 25 COMELEC Resolution No. 8786 (4 March 2010), Section 1 (4). 22 AES 2010 HANDBOOK Page 1 c. has never been convicted of any election offense or of any other crime punishable by more than six (6) months of imprisonment; d. has no pending case against him filed in COMELEC/court for any election offense; and e. is able to speak and write English or the local dialect. 26 5. Can a duly constituted BEI composed of public school teachers be replaced with military personnel by agreement of political parties and candidates? No. In Cawasa v. COMELEC, 27 the Supreme Court held that “the bare assertion…that ‘the political parties and municipal candidates agreed on the said arrangement’” provides no legal basis for replacing a duly constituted BEI composed of public school teachers with military personnel. 6. Could a member of the BEI be relieved of his/her duties and replaced by another? Public school teachers who are BEI members shall not be relieved or disqualified from acting as such members, except for cause and after due hearing. 28 7. Who are disqualified from being BEI members? The following are disqualified from being BEI members: a. A person who is related within the fourth civil degree of consanguinity or affinity to any member of the same BEI or to any candidate to be voted for or to the candidate's spouse; and b. A person who is married to someone who is related within the fourth civil degree of consanguinity or affinity to any member of the same BEI or to any candidate to be voted for or to the candidate's spouse. 29 8. What should the disqualified BEI Chairman or member do? He/she shall immediately notify the Election Officer of his or her disqualification in writing. The Election Officer shall, in turn, appoint a substitute. 30 9. What must be done before the BEI Chairman and members assume office? The Election Officer must accomplish the form for the Appointment of the Chairman and Members of the BEI (Election Form No. A5) in three (3) copies and require the Chairman 26 27 Batas Pambansa Blg. 881 (1985), Section 166; COMELEC Resolution No. 8786 (4 March 2010), Section 2. Cawasa v. COMELEC, G.R. No. 150469, 3 July 2002. 28 Batas Pambansa Blg. 881 (1985), Section 170; Cawasa v. Comelec, G.R. No. 150469, 3 July 2002. 29 Batas Pambansa Blg. 881 (1985), Section 167; COMELEC Resolution No. 8786 (4 March 2010), Section 3. 30 COMELEC Resolution No. 8786 (4 March 2010), Section 4. AES 2010 HANDBOOK Page 2 and BEI members to affix their signatures and imprints of their right thumbs on the Oath of Office (Election Form No. A5‐A) before him before assumption of office. 31 10. How are temporary vacancies in the BEI filled? In case a BEI member is absent or a vacancy exists, the members present shall call upon a substitute from the list of public school teachers submitted by the DepEd to perform the duties of the absent member. If none is available, the members present shall appoint any qualified non‐partisan registered voter of the precinct to temporarily fill the vacancy until the absent member appears. In case there are two members present, they shall act jointly. 32 11. Under what circumstances may a BEI member order the arrest of absent members? BEI members may order the arrest of any member who, in their judgment, has absented himself with the intention of obstructing the performance of the duties of the BEI. 33 B. Functions and Responsibilities 12. What are the powers and functions of the BEI? The BEI shall have the following powers and functions: a. Conduct the voting in the polling place and administer the electronic counting of votes; b. Print the election returns and transmit electronically the election results, through the use of the PCOS machines, to the City/Municipal Board of Canvassers (BOC), the dominant majority party, dominant minority party, accredited citizens' arm and KBP, and to the central server. c. Act as deputies of the COMELEC in the conduct of the elections; d. Maintain order within the polling place and its premises; keep access thereto open and unobstructed; and enforce obedience to its lawful orders. It shall prohibit the use of cellular phones and cameras by the voters. If any person refuses to obey the lawful orders of the BEI or conducts himself in a disorderly manner in its presence or within its hearing and thereby interrupts or disturbs its proceedings, the BEI may issue an order in writing directing any peace officer to take said person into custody until the adjournment of the meeting, but such 31 Batas Pambansa Blg. 881 (1985), Section 165; COMELEC Resolution No. 8786 (4 March 2010), Section 7. COMELEC Resolution No. 8786 (4 March 2010), Section 5. 33 Batas Pambansa Blg. 881 (1985), Section 177; COMELEC Resolution No. 8786 (4 March 2010), Section 6. 32 AES 2010 HANDBOOK Page 3 order shall not be executed as to prevent said person from voting. A copy of the written order shall be attached to the Minutes. e. Perform such other functions as may be prescribed by law or by the rules and regulations promulgated by the COMELEC. 34 13. What are the BEI’s responsibilities with respect to the keeping of the Minutes of Voting and Counting of Votes (Minutes)? The BEI shall enter in the Minutes (Election Form No. A11), the act or data required as they occur or become available during voting, counting, and transmission of votes. Copies shall be sealed in separate envelopes and distributed to 35: 1st copy delivered to Election Officer who shall transmit it to the Election Records and Statistics Department (ERSD) 2nd copy deposited inside the compartment of the ballot box. 14. How are the proceedings of the BEI to be conducted? The meeting of the BEI shall be public and shall be held in the polling place designated by the COMELEC. 36 The BEI shall act through its Chairman and shall decide by majority vote, without delay, all questions which may arise in the performance of its duties. 37 15. Are BEI members allowed to vote? Yes. There are two (2) options available to BEI members (including their substitutes) who are registered voters in a precinct other than where they are assigned: a. avail of the Local Absentee Voting, or b. on the day of the elections, vote in the precincts where they are registered, provided that they do so when the voting in their respective places of assignment is light, and their absence shall not be for more than thirty (30) minutes. 38 They shall schedule their voting so that only one BEI member shall leave at any one time. 39 34 35 Batas Pambansa Blg. 881 (1985), Sections 168 & 172; COMELEC Resolution No. 8786 (4 March 2010), Section 10. COMELEC Resolution No. 8786 (4 March 2010), Section 8. 36 Batas Pambansa Blg. 881 (1985), Section 172; COMELEC Resolution No. 8786 (4 March 2010), Section 11. 37 Batas Pambansa Blg. 881 (1985), Section 174; COMELEC Resolution No. 8786 (4 March 2010), Section 11 (2). 38 COMELEC Resolution No. 8786 (4 March 2010), as revised by COMELEC Resolution No. 8798 (16 March 2010), Section 12. 39 COMELEC Resolution No. 8786 (4 March 2010), Section 12. AES 2010 HANDBOOK Page 4 16. Are BEI members allowed to engage in partisan political activity? No. No BEI member or support staff shall engage in any partisan political activity or take part in the election except to discharge his duties as such and to vote. 40 17. Are BEI members allowed to make announcements tending to show the state of the polls while voting is ongoing? No. During the voting, any BEI member shall NOT make any announcement as to: a. whether a certain registered voter has already voted or not; b. how many have already voted or how many so far have failed to vote or any other fact tending to show or showing the state of the polls; and c. how many persons voted, except as witness before a court or body. 41 18. What are the BEI’s duties with respect to election forms, documents, and supplies? The BEI shall: a. carefully check the different election forms, documents and supplies and the quantity actually received; and b. sign a Certificate of Receipt in three (3) copies, the original of which shall be delivered to the City/Municipal Treasurer, who shall transmit the same to the ERSD, COMELEC, Manila, immediately after election day. 42 19. What are the obligations of BEI on election day? Please see: � � � item IV on “Pre‐Voting Procedures on Election Day” for procedures to be followed BEFORE voting begins item V on “Casting of Votes” for procedures to be followed DURING the voting process, and item VII on “Election Returns” on the procedures to be followed AFTER the voting. 40 41 Batas Pambansa Blg. 881 (1985), Section 173; COMELEC Resolution No. 8786 (4 March 2010), Section 13. COMELEC Resolution No. 8786 (4 March 2010), Section 33. 42 COMELEC Resolution No. 8786 (4 March 2010), Section 18. AES 2010 HANDBOOK Page 5 II. WATCHERS 20. Who are entitled to appoint poll watchers? The following are entitled to appoint two watchers, to serve alternately, in every polling place: a. each candidate and registered political party or coalition of political parties duly registered with the COMELEC and fielding candidates in the election; and b. duly accredited citizens' arms. Candidates for Senator, candidates for Member, Sangguniang Panlalawigan or Sangguniang Panlungsod, or Sangguniang Bayan, belonging to the same ticket or slate, shall collectively be entitled to one watcher. Duly accredited citizens arms of the COMELEC shall be entitled to appoint a watcher in every polling place. Other civil, professional, business, service, youth, and any other similar organizations, with prior authority of the COMELEC, shall be entitled collectively to appoint one watcher in every polling place. 43 21. Will all these watchers be allowed in the polling place? Yes. However, if all watchers cannot be accommodated because of limited space, preference shall be given to watchers of: a. citizens' arm; b. dominant majority party, as determined by the COMELEC; and c. dominant minority party, as determined by the COMELEC. In case there are two or more citizen's arm preference shall be given to the one authorized by the COMELEC to conduct an unofficial count. 44 22. Who may be appointed as a watcher? No person shall be appointed watcher unless he: a. is a registered voter of the city or municipality comprising the precinct where he is assigned; b. is of good reputation; c. has not been convicted by final judgment of any election offense or of any other crime; 43 44 COMELEC Resolution No. 8786 (4 March 2010), Section 15. COMELEC Resolution No. 8786 (4 March 2010), Section 15. AES 2010 HANDBOOK Page 6 d. knows how to read and write Pilipino, English or any of the prevailing local dialects; and e. is not related within the fourth civil degree of consanguinity or affinity to the Chairman or to any other member of the BEI in the polling place where he seeks appointment as watcher. 45 23. What are formalities that must be observed by watchers before they can perform their duties? WHAT TO DO Provide the Election Officers with the names and of their signatures representatives authorized to appoint watchers in the city or municipality 46 Note: The appointments of the watchers shall bear the signature of the candidate or duly authorized representative of the party, organization or coalition that appointed them. Deliver to the BEI Chairman their appointments as watchers Record Pollwatchers’ names in the Minutes with a notation under their signatures that they are not disqualified to serve as such WHO DOES IT Independent candidates, registered parties/ organizations, or coalitions authorized by the COMELEC to appoint watchers WHEN IT NEEDS TO BE DONE At least fifteen (15) days before election day Poll Watchers Upon entering the polling place Upon delivery of the watchers of their appointments BEI Chairman 45 46 COMELEC Resolution No. 8786 (4 March 2010), Section 16. Batas Pambansa Blg. 881 (1985), Section 179; COMELEC Resolution No. 8786 (4 March 2010), Section 17. AES 2010 HANDBOOK Page 7 24. What are the rights and duties of watchers? Key Points For Watchers: Watchers shall have the following rights 47: � � Witness and inform themselves of the proceedings of the BEI; Take note of what they may see or hear; Take photographs of the proceedings and incidents, if any, during the voting, counting of votes, as well as of the generated ER and ballot boxes; File a protest against any irregularity or violation of law which they believe may have been committed by the BEI or by any of its members or by any person; Obtain from the BEI a certificate as to the filing of such protest and the resolution thereof; and Affix their signatures and thumb marks in the ER if they are representing the dominant majority and dominant minority parties fielding candidates. � � � Watchers shall have the right to guard the room where ballot boxes shall be kept after canvassing. 48 25. How should watchers conduct themselves in the performance of their duties? Watchers shall not speak to any member of the BEI, or to any voter or among themselves, in such a manner as would disturb the proceedings of the BEI. 49 No watcher shall enter the place reserved for the voters and the BEI, nor mingle and talk with the voters. 50 Watchers must stay only in the space reserved for them. 51 47 Batas Pambansa Blg. 881 (1985), Section 179; COMELEC Resolution No. 8786 (4 March 2010), Section 17. COMELEC Resolution No. 8809 (30 March 2010), Section 31. 49 Batas Pambansa Blg. 881 (1985), Section 179; COMELEC Resolution No. 8786 (4 March 2010), Section 17. 50 COMELEC Resolution No. 8786 (4 March 2010), Section 27 (b). 51 COMELEC Resolution No. 8786 (4 March 2010), Section 28 (b). 48 AES 2010 HANDBOOK Page 8 26. On what grounds may a watcher challenge a prospective voter? A watcher may challenge any person offering to vote on the ground that he: a. b. c. d. is not registered; is using the name of another; is suffering from an existing disqualification; 52 received or expects to receive, paid, offered or promised to pay, contributed, offered, or promised to contribute money or anything of value as consideration for his vote or for the vote of another; e. made or received a promise to influence the giving or withholding of any such vote; or f. made a bet or is interested directly or indirectly in a bet that depends upon the results of the election. 53 27. Aside from discharging their duties during the voting proper, what else should watchers do to help safeguard the sanctity of the elections? Watchers should be present at the following period and must perform the following tasks: WHEN TASK record the serial number of the seal(s) on the PCOS box(es) 54 observe whether the PCOS box is sealed and check if the serial number of the seal is the same as the serial number recorded during the testing and sealing 55 observe the initialization of the PCOS and sign the Initialization Report 56 observe the counting of votes and transmission and printing of ERs affix their signatures on the printed ERs 57 AFTER the voting observe the disposition of the PCOS, ballot boxes, keys, ERs, and other documents even after the termination of the counting of votes and the announcement of the results in the precinct accompany the BEI as it delivers the ballot box to the city or municipal treasurer 58 BEFORE the Voting 52 53 COMELEC Resolution No. 8786 (4 March 2010), Section 24. COMELEC Resolution No. 8786 (4 March 2010), Section 25. 54 COMELEC Resolution No. 8786 (4 March 2010), Section 34 (b). 55 COMELEC Resolution No. 8786 (4 March 2010), Section 34 (f). 56 COMELEC Resolution No. 8786 (4 March 2010), Section 34 (w). 57 COMELEC Resolution No. 8786 (4 March 2010), Section 40 (m). 58 COMELEC Resolution No. 8786 (4 March 2010), Section 43 (e). AES 2010 HANDBOOK Page 9 Key Points For Watchers: The ballot box shall NEVER be reopened to place therein or to take out therefrom any document or article except in proper cases and with prior written authority of the COMELEC to retrieve copies of the election returns which will be needed in any canvass. In such situation, the BEI members and the watchers shall be notified of the time and place of the opening of said ballot box. 59 Watchers should make sure they are present when the ballot box is opened. 59 COMELEC Resolution No. 8786 (4 March 2010), Section 45 (2). AES 2010 HANDBOOK Page 10 III. OFFICIAL BALLOTS AND OTHER ELECTION FORMS AND SUPPLIES 28. What is an official ballot? In the AES, an official ballot refers to the paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form. 60 Official ballots come in Election Form No. A6. 61 29. What shall the ballot contain? The ballot shall contain all the names of the candidates for every vacant position, both at the national and local levels. The names of all candidates for every vacant position shall be arranged alphabetically and printed uniformly. There shall correspond to each of the names of the candidates a blank oval, which the voter shall completely shade to signify his/her vote. 30. What are the types of security measures that could be adopted by the COMELEC to prevent use of fake ballots? Some of these safeguards include, but are not limited to, bar codes, holograms, color shifting ink and microprinting. 62 As mentioned above, an official ballot comes as Election Form No. A6. 63 31. When will the official ballots be distributed to the BEI? The official ballots, along with the forms, documents and supplies to be used for the election, shall be distributed early in the morning of election day. However, COMELEC may authorize earlier distribution of these documents. 64 32. Can the official ballots be reproduced? No. The official ballots cannot be reproduced. 65 60 61 Republic Act No. 8436 (1997), as amended by Republic Act. No 9369 (2007), Section 2 (3). COMELEC Resolution No. 8786 (4 March 2010), Section 18. 62 Republic Act No. 8436 (1997), as amended by Republic Act No. 9369 (2007), Section 13. 63 COMELEC Resolution No. 8786 (4 March 2010), Section 18. 64 COMELEC Resolution No. 8786 (4 March 2010), Section 18. AES 2010 HANDBOOK Page 11 33. Aside from the official ballots, what are the other election forms and supplies? Early in the morning of election day, the BEI shall get the following forms, documents and supplies from the following: 66 a. From the City/Municipal Treasurer CEF NO. DESCRIPTION RATE OF DISTRIBUTION ELECTION FORMS A3 Poster Indicating the Clustered Precincts’ Numbers A6 Official Ballots A12 Paper Seal A14 Certificate of Receipt of Official Ballots, Other Forms and Supplies by BEI A27 Official Receipt of Election Returns ENVELOPES FOR VOTING AND COUNTING A15 For Rejected ballots, Half of Torn Unused Official Ballots and Other Half of Torn Unused Official Ballots A17 For Election Returns OTHER ENVELOPES A18‐A For Main Memory Card, i‐button Security Key, PINs, Initialization Report, Audit Log, and Precinct Statistical Report OTHER FORMS A30/A31 Temporary Appointment of Chairman/Poll Clerk/Third Member/Support Staff A35 Certificate of Challenge of Protest and Decision of the BEI A39 Oath of Voter Challenge for Illegal Acts A40 Oath of Identification of Challenged Voter SUPPLIES Bond Paper (long) Ballot Secrecy Folder Thumbprint Taker Seal with Steel Wire for Ballot Box Indelible Stain Ink Instruction to Voters Marking Pens Ballpen 1 1 75 3 30 3 Piece Piece per voter Pieces Pieces Pieces Pieces 30 6 Pieces Pieces 10 10 10 10 30 22 1 1 2 1 1 or 2 6 Pieces Pieces Pieces Pieces Pieces Pieces Piece per precinct in a cluster Piece Bottles per precinct in a cluster Piece per clustered precinct Box/es Pieces 65 Official ballots are not among the election forms that may be reproduced as enumerated in COMELEC Resolution No. 8786 (4 March 2010), Section 19. 66 COMELEC Resolution No. 8786 (4 March 2010), Section 18. AES 2010 HANDBOOK Page 12 b. From the Election Officer CEF NO. DESCRIPTION Book of Voters, which must be (i) duly sealed, and (ii) in the custody of the poll clerk, third member and the support staff, if any Precinct Computerized Voters List (PCVL) and supplemental PCVL, if any, for posting outside the precinct and which must be duly certified by the Election Registration board) Election Day Computerized voters List (EDCVL/List of Voters with Voting Record) and supplemental EDCVL, if any, which must be (i) duly certified by the Election Registration board; and (ii) one (1) of EDCVL must be in the custody of the poll clerk, third member and the support staff, if any. Copies of Appointment and Oath of Office of the BEI and Support Staff RATE OF DISTRIBUTION 1 Copy 2 Copies A5 & A5‐A 34. What shall the BEI do after receiving Official Ballots and other election forms and supplies? The BEI shall carefully check the different election forms (which include the official ballots), documents and supplies and the quantity actually received. The BEI shall then sign a Certificate of Receipt (Election Form No. A14) in three (3) copies, the original of which shall be delivered to the City/Municipal Treasurer, who shall transmit the same to the ERSD, Comelec, Manila, immediately after election day. 67 35. How many official ballots shall be provided to each BEI? Only one piece of ballot per voter shall be provided to the BEI. 68 36. Are there election documents that may be reproduced? Yes. Only the following forms may be reproduced when needed: a. Temporary Appointment of Chairman/Poll Clerk/Member; b. Certificate of Challenge of Protest and Decision of the BEI; c. Oath of Voter Challenged for Illegal Acts; and d. Oath to Identify a Challenged Voter. 69 67 COMELEC Resolution No. 8786 (4 March 2010), Section 18. COMELEC Resolution No. 8786 (4 March 2010), Section 18. 69 COMELEC Resolution No. 8786 (4 March 2010), Section 19. 68 AES 2010 HANDBOOK Page 13 IV. PRE‐VOTING PROCEDURES 37. What procedures must the BEI observe before voting begins on Election Day? The BEI shall follow the detailed procedure below early in the morning of election day. 70 Meet at the polling place at 6 am of Election Day. Ensure that the PCOS and ballot boxes are inside the polling place. Post one copy of the PCVL of each precinct in the cluster, near or at the door of the polling place. Show the PCOS box, Ballot box, official ballots and Book of Voters to the public and watchers present. Remove the sticker seal of the PCOS box. Open the PCOS box. Check the contents of the PCOS box. Retrieve the minutes from the PCOS box and inspect its serial number. Enter into the minutes the number of ballots and the fact that the PCOS box, Ballot box, official ballots and Book of Voters were shown to the public. Retrieve the PIN of the BEI and distribute the same among themselves. The re-zero PIN shall not be used on election day. Retrieve the PCOS from its box. Show to the public that the printer cover and slots of the PCOS are stored and sealed. Unlock the sliding cover of the ballot box slit and break its plastic security seal. Place the PCOS properly on top of the ballot box. Break the plastic fixed length seal of the printer cover of the PCOS. Open the printer cover and the Chairman shall take out the iButton security key. Verify that the roll of paper is already properly installed. Close the printer. Connect the power adaptor to the PCOS AC power port (20VAC). Plug the other end to the electrical outlet. Connect the battery to the PCOS DC power port (12 VDC). If there is no power, using a pen, press the RESET button located at the top of the PCOS AC power port. Wait until the PCOS displays the message “PLEASE INSERT SECURITY KEY FOR AUTHENTICATION”. The Chairman shall place the iButton security key on top of the iButton security key receptacle and apply slight pressure thereon until the message “SECURITY KEY VERIFIED” appears on the PCOS screen. Wait until the “MAIN MENU” is displayed. The iButton shall be in custody of the Chairman until the closing of voting. The certified IT-capable member of the BEI shall perform the following procedures: 1. Select “OPEN VOTING” from the Main Menu 2. The PCOS shall then request for the PIN of the poll clerk who will then enter his PIN and press “ENTER” 3. Validate the PIN and display a message “PIN ACCEPTED” 4. Request for the second PIN from the the third member who will then enter his PIN and press “ENTER” 5. Validate the PIN and display a message “PIN ACCEPTED” 6. Display two (2) options: “INITIALIZE VOTE COUNTERS” and “PREVIOUS SCREEN” Press the “INITIALIZE VOTE COUNTERS” option of the PCOS. The PCOS shall: 1. Display the message “INITIALIZING VOTE COUNTERS” 2. Automatically print the Initialization Report showing zero (“0”) vote for each candidate including the geographic information (province, city/municipality, barangay, voting center and individual precinct in the cluster) 3. After printing the Initialization Report, the PCOS will display the message, “WOULD YOU LIKE TO PRINT MORE COPIES OF THIS REPORT?” with “YES” and “NO” options. Press “NO”. The PCOS will display the message “PLEASE INSERT BALLOT”. Now, the PCOS is ready to accept ballots. Detach the Initialization Report, affix their signatures thereon including the representatives of the political parties, candidates or citizens arms present The Chairman shall then place the Report inside the envelope (A18-A) for submission to the Election Officer after the voting, for his safekeeping. Figure 1: BEI Procedures before voting 70 COMELEC Resolution No. 8786 (4 March 2010), Section 18; See also COMELEC Resolution No. 8786 (4 March 2010), Section 34. AES 2010 HANDBOOK Page 14 V. CASTING OF VOTES 38. How and when are the elections opened? The elections are opened by the BEI Chairman at 7:00 a.m. of the election day by unlocking the PCOS. To unlock the PCOS, the BEI Chairman shall insert the Security Key into the appropriate port for the mechanism. Once the initialization report is printed, the elections shall be deemed open. 71 39. What is the initialization report or the “zero‐vote” document? The initialization report or the “zero‐vote” document is an ER printed by the PCOS to open the elections. It shows that there are no votes or that there are zero votes recognized by the system at the time of the opening of the elections. The initialization report shall be printed in one (1) copy, which shall be kept by the BEI Chairman for safekeeping. After the votes have been counted and the results of the election in the precinct have been announced, it will be forwarded to the Election Officer. 72 40. How will the BEI know that the PCOS is ready to accept ballots? The PCOS is ready to accept ballots for counting when the touch screen display indicates that the system is “OPEN,” and that the text “Please Insert Ballot” is displayed. 73 41. Up to what time can the voters cast their votes? The voters can cast their votes until 6:00 p.m. of the election day. 74 42. Can the voters cast their votes after 6:00 p.m. of the election day? Voters can cast their votes after 6:00 p.m. of the election day, provided they are within 30 meters in front of their assigned polling place. In such a case, the poll clerk shall prepare a list of voters within 30 meters in front of the polling place and intending to vote. These voters shall be allowed to cast their votes upon being called by the poll clerk, in the order in which they are listed. 75 71 COMELEC Resolution No. 8786 (4 March 2010), Section 34. COMELEC Resolution No. 8786 (4 March 2010), Section 43. 73 COMELEC Resolution No. 8786 (4 March 2010), Section 34. 74 COMELEC Resolution No. 8786 (4 March 2010), Section 21. 75 COMELEC Resolution No. 8786 (4 March 2010), Section 21. 72 AES 2010 HANDBOOK Page 15 43. Can a voter vote if he/she was included by the poll clerk in the list of voters who will be allowed to vote past 6:00 p.m., but fails to respond to the poll clerk’s call to vote? Each name shall be called by the poll clerk three times. Any voter who is not present when called shall NOT be allowed to vote at a later time. 76 44. Will the PCOS accept ballots fed to the system prior to the printing of the zero‐vote document? No. The PCOS shall not accept any ballot fed until the zero‐vote document is printed. 45. Who may vote? The following are entitled to vote: a. All registered voters whose names appear in the Posted Computerized Voters List (PCVL) or Election Day Computerized Voters List (EDVCL), or whose registration records have not been cancelled or deactivated, may vote in the election 77; and b. Detainees, whose registration records are not deactivated / cancelled, including those 78: � � � confined in jail, formally charged for any crime/s and awaiting/undergoing trial; serving a sentence of imprisonment for less than one (1) year; or whose conviction of a crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the firearms laws or any crime against national security or for any other crime is on appeal. The rules and regulations on detainee voting in connection with the May 10, 2010 national and local elections are contained in Comelec Resolution No. 8811 promulgated on 30 March 2010. 76 77 COMELEC Resolution No. 8786 (4 March 2010), Section 21. COMELEC Resolution No. 8786 (4 March 2010), Section 23. 78 COMELEC Resolution No. 8811 (30 March 2010), Section 1. AES 2010 HANDBOOK Page 16 46. How does a voter obtain a ballot? The voter must look for his name in the PCVL posted at the door of the precinct. The voter must take note of his/her precinct number and sequence number. Source: Elections 101: Nutshelling the Automated Elections of 2010, presented by COMELEC during the PHILJA’s Experts’ Meeting on the Election Law Training Curriculum for RTC Judges (14 April 2010, Hyatt Manila) The voter will then approach the BEI or support staff‐in charge of his/her assigned precinct, and give his/her complete name, sequence number, address, proof of identification, and relevant information. The BEI shall then establish the identity of the voter by: a. b. c. d. e. Verifying whether the voter’s name is in the EDCVL; Checking the voter’s resemblance to the photograph in the EDCVL Verifying his photograph or specimen signatures in the Voter’s Registration Record Verifying if the voter is identified under oath by any member of the BEI Verifying the voter’s identity through any authentic document that may establish his identity, EXCEPT barangay certificates or community tax certificates. Upon successfully verifying the voter’s identity, the BEI shall direct the voter to the BEI Chairman for the issuance of the ballot. 79 79 COMELEC Resolution No. 8786 (4 March 2010), Section 35. AES 2010 HANDBOOK Page 17 Key Points for the BEI Chairman: � Before issuing a ballot, the BEI Chairman will check if the voter’s fingers have not yet been stained by indelible ink. � If stained, the voter will be presumed to have voted and shall be asked to leave the polling place. X If unstained, the BEI chairman will sign the EDCVL and front of the ballot in the designated space. � The ballot must be placed inside the Ballot Secrecy Folder in such manner as would cover the face of the ballot, revealing only the portion where the BEI Chairman’s signature. 80 47. What happens if the BEI Chairman fails to authenticate the ballot by affixing his/her signature in the space dedicated for the purpose? Failure of the BEI Chairman to authenticate the ballot shall not be a cause for invalidation of the Ballot. However, he/she shall be charged with an election offense. 81 48. Can any other BEI member issue a ballot to a registered voter? No. Only the BEI Chairman can issue ballots. 82 49. Can a voter or watcher challenge a voter? On what grounds? Any voter or any watcher may challenge any person offering to vote for: a. Not being registered; b. Using the name of another; or c. Suffering from an existing disqualification. Any voter or any watcher may also challenge any voter offering to vote on the ground that he/she: a. Received or expects to receive, paid, offered or promised to pay, contributed offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; or 80 81 COMELEC Resolution No. 8786 (4 March 2010), Section 35. COMELEC Resolution No. 8786 (4 March 2010), Section 35, also Batas Pambansa Blg. 881 (1985), Section 261 (bb) (2). 82 COMELEC Resolution No. 8786 (4 March 2010), Section 35. AES 2010 HANDBOOK Page 18 b. Made of received a promise to influence the giving or withholding of any such vote; or c. Made a bet or is interested directly or indirectly in a bet that depends upon the results of the election. Election Offense ELECTION OFFENSE The following may be charged with an election offense: 1. A person who votes in an election BUT: ‐ is not a registered voter, or ‐ who being registered, votes more than once in the same election 83 2. Any BEI member who: ‐ makes it possible for the number of votes cast to exceed the number of registered voters shall likewise be liable for an election offense 84 ‐ issues an official ballot to a person not qualified to be issued an official ballot may be charged with an election offense 85 ‐ fails to authenticate the ballot 50. What shall the BEI do when a challenge is raised? When a challenge is raised, the BEI shall: a. require proof of registration, identity or qualification; and b. identify the challenged voter through his photograph, fingerprint, or specimen signatures in the VRR or EDCVL. In the absence of any of the proof of identity mentioned, any BEI member may identify under oath a voter, and such act shall be reflected in the Minutes. 86 83 Batas Pambansa Blg. 881 (1985), Section 261 (z) (2). Batas Pambansa Blg. 881 (1985), Section 261 (z) (10). Batas Pambansa Blg. 881 (1985), Section 261 (z) (20). 86 COMELEC Resolution No. 8786 (4 March 2010), Section 24. 84 85 AES 2010 HANDBOOK Page 19 51. What shall the challenged voter do in these instances? In order to be allowed to vote, the challenged voter shall take an oath before the BEI that he has not committed any of the acts alleged in the challenge. Otherwise, the challenge shall be sustained and the voter shall not be allowed to vote. 87 All challenges, oaths taken in connection therewith, and the BEI’s decision in all such challenges shall be recorded in the Minutes. 88 52. What happens if the challenge to a voter is sustained? No ballot shall be issued to the voter, and he/she shall be asked to leave the polling place. 89 53. What happens if the challenge to a voter is dismissed? The voter shall be allowed to vote 90provided none of the voter’s fingers is stained by indelible ink. 54. How does a voter accomplish his/her ballot? A voter shall accomplish his/her ballot by SHADING FULLY the appropriate oval corresponding to the name of the desired candidate in the ballot to be used for the elections using the special marker provided by the COMELEC. After the voter finishes shading all the ovals corresponding to the names of his/her desired candidates for every position, he/she shall affix his/her thumbmark in the space provided for in the voting record. 91 Figure 2: Samples of Shading Source: Elections 101: Nutshelling the Automated Elections of 2010, presented by COMELEC during the PHILJA’s Experts’ Meeting on the Election Law Training Curriculum for RTC Judges (14 April 2010, Hyatt Manila) 87 COMELEC Resolution No. 8786 (4 March 2010), Section 25. COMELEC Resolution No. 8786 (4 March 2010), Section 26. 89 COMELEC Resolution No. 8786 (4 March 2010), Section 25. 90 COMELEC Resolution No. 8786 (4 March 2010), Section 25. 91 COMELEC Resolution No. 8786 (4 March 2010), Section 36. 88 AES 2010 HANDBOOK Page 20 Key Points For Voters: � Be careful in the marking of any ovals, especially those which do not correspond to your choice. � Do not fold or crumple the ballot. � Keep the ballot clean. There should be no stains, smudges or any other marks in the ballot. � Never show the ballot to anyone. 55. What happens if the voter shades and chooses more than the number of required candidates to be voted for a particular position? When the voter shades and votes for candidates in excess of the number of required votes for candidates in a specified position, OVERVOTING occurs. For example, if the voter shades and in effect votes for two candidates both running for President, and in effect votes for two Presidential candidates, OVERVOTING occurs. 56. What happens if the voter shades and chooses less than the number of required candidates to be voted for a particular position? When the voter shades and votes for candidates less than the number of required votes for candidates in a specified position, UNDERVOTING occurs. For example, if the voter shades and votes for only 5 candidates to signify his votes for the Senatorial contest, which is less than the 12 maximum allowed votes for the contest, UNDERVOTING occurs. 57. How does a voter insert a ballot into the PCOS? The voter may insert his/her ballot into the PCOS in any orientation or direction as the dimensions of the PCOS feeder shall permit. There are four orientations in which the ballot may be fed into the PCOS. 92 92 COMELEC Resolution No. 8786 (4 March 2010), Section 38. AES 2010 HANDBOOK Page 21 FEEDER Figure 3: Location of Feeder in the PCOS Machine 58. What happens if there is overvoting? The votes cast for the OVERVOTED position will not be recognized and counted by the PCOS. The votes cast for the other positions, however, shall be recognized and counted by the PCOS, as long as no OVERVOTING occurs in other positions. 59. What happens if there is undervoting? UNDERVOTING is fine. In such a case, the PCOS will only count the votes cast for the candidates as chosen by the voter. 60. Can a voter obtain a new ballot in case he/she makes a mistake in casting his/her votes? No. The ballots shall be provided to each voter at the rate of ONE BALLOT PER VOTER only. 93 61. How does the voter cast his/her accomplished ballot? After accomplishing the ballot, the voter shall approach the PCOS and insert the accomplished ballot in the ballot entry slot. The PCOS electronic display shall display, “CONGRATULATIONS. YOUR VOTE HAS BEEN REGISTERED” to indicate that the PCOS accepted the ballot. The BEI shall monitor the PCOS screen to make sure that the ballot was successfully accepted. 94 93 Republic Act No. 8436, Section 14 which provides that a voter spoiling his/her ballot may be issued another ballot, subject however that the voter shall not change his/her ballot more than once, has been amended by Republic Act No. 9369 (2007), Section 15 which provides that COMELEC shall provide procedure in voting and omitted the specific proviso in Section. 14 on spoiling. See also COMELEC Resolution No. 8786 (4 March 2010), Section 18. 94 COMELEC Resolution No. 8786 (4 March 2010), Section 36. AES 2010 HANDBOOK Page 22 After, the voter must return the ballot secrecy folder and marking pen to the BEI Chairman. An indelible ink will be applied to the voter’s finger, and he/she affix his/her thumb mark in the EDCVL. 95 ELECTION OFFENSE When casting his/her vote, it shall be UNLAWFUL for a voter to 96: X X X X X X X X Bring the ballot, ballot secrecy folder or marking pen outside of the polling place; Speak with anyone other than as herein provided while inside the polling place; Prepare his ballot without using secrecy folder or exhibit its contents; Fill his ballot accompanied by another, except in the case of an illiterate or person with disability /disabled voter; Erase any printing from the ballot, or put any distinguishing mark on the ballot; Use carbon paper, paraffin paper or other means of making a copy of the contents of the ballot, or otherwise make use of any other scheme to identify his vote, including the use of digital cameras, cellular phones with camera or similar gadgets; Intentionally tear or deface the ballot; and Disrupt or attempt to disrupt the normal operation of the PCOS. Please note that election offenses are not limited to the above list. Please refer to the discussion under item IX entitled “Election Offenses”. 62. Are there cases when the PCOS will reject ballots? What are these cases? Yes. There are three reasons a PCOS will give for rejecting ballots. These reasons shall be displayed on the PCOS’ electronic display 97: a. Ambiguous Mark b. Misread Ballot c. Invalid Ballot 63. What shall the voter do in case his/her ballot is rejected by the PCOS machine? The voter should do the following, depending on the reason given for rejecting the ballot: 95 COMELEC Resolution No. 8786 (4 March 2010), Section 36. COMELEC Resolution No. 8786 (4 March 2010), Section 30. 97 COMELEC Resolution No. 8786 (4 March 2010), Section 38. 96 AES 2010 HANDBOOK Page 23 Reason for Rejection To Do Ambiguous Mark Check if the ovals corresponding to desired candidate were fully shaded If not, fully shade all those which are not fully shaded Last Option (if PCOS still does not accept the ballot being fed) Return the Ballot to the BEI Chairman AND/OR Register objection to the rejection of the ballot in writing, and attach and note in the Minutes of Voting. 98 Misread Ballot Re‐feed the orientations ballot in different Invalid Ballot Check if the ballot belongs to the same precinct in which the voter is voting If so, re‐feed the ballot in different orientations 64. What shall the BEI do with rejected ballots? The BEI Chairman shall: a. distinctly mark the ballot at the back as “Rejected” b. ask all BEI members to sign the back portion with the notation c. place all rejected ballots inside the envelope for rejected ballots (A15). 99 65. Can a voter whose ballot is rejected be issued a replacement ballot? No. No replacement ballot shall be issued a voter whose ballot is rejected by the PCOS. 100 ELECTION OFFENSE Election Offenses with respect to ballots: 1. 2. 3. 4. use of ballots other than the official ballots 101 use of ballots other that provided by the BEI 102 unauthorized printing 103 of ballots that appear as official ballots unauthorized distribution thereof 104 98 COMELEC Resolution No. 8786 (4 March 2010), Section 38. COMELEC Resolution No. 8786 (4 March 2010), Section 38. 100 COMELEC Resolution No. 8786 (4 March 2010), Section 38. 101 Batas Pambansa Blg. 881 (1985), Section 261 (z) (14). 102 Batas Pambansa Blg. 881 (1985), Section 261 (z) (6). 103 Batas Pambansa Blg. 881 (1985), Section 261 (z) (18). 104 Batas Pambansa Blg. 881 (1985), Section 261 (z) (18). 99 AES 2010 HANDBOOK Page 24 66. May an illiterate and person with disability/disabled voter be allowed to be assisted by other persons? Yes, provided that such fact is indicated in the Election Day Computerized Voters List (EDCVL) or Voter’s Registration Record (VRR). If so, he/she may be assisted in the preparation of his/her ballot. A person with physically impaired capacity to use the AES may also be assisted in feeding his/her ballot into the PCOS. 105 67. Who can assist an illiterate and person with disability/disabled voters? The following can assist an illiterate and person with disability/disabled voter: a. relative within the fourth civil degree of consanguinity and affinity; b. any person of the voter’s confidence who belongs to the same household; or c. any member of the BEI. 106 All assistors must be of voting age. 107 The assistor must also be authorized by the voter to help him cast his vote. 108 68. May the same assistor help all the disabled voters in his precinct? No. Unless the assistor is a BEI member, he/she may only assistor up to three (3) illiterate/disabled voters. 109 69. What are the requirements before an assistor can help prepare ballots for illiterate and person with disability/disabled voters? The assistor must execute an oath in writing that he/she shall accomplish the ballot strictly in accordance with the wish of the voter, and shall refrain from revealing the contents thereof, by affixing his/her signature in the appropriate space in the Minutes. In assisting the voter accomplish the ballot, the assistor shall use a ballot secrecy folder, and shall accomplish the ballot strictly in accordance with the preference of the illiterate/disabled voter. 110 105 COMELEC Resolution No. 8786 (4 March 2010), Section 31 (1) and (2). COMELEC Resolution No. 8786 (4 March 2010), Section 31 (1). 107 COMELEC Resolution No. 8786 (4 March 2010), Section 31 (3). 108 COMELEC Resolution No. 8786 (4 March 2010), Section 31 (5). 109 COMELEC Resolution No. 8786 (4 March 2010), Section 31 (4). 110 COMELEC Resolution No. 8786 (4 March 2010), Section 30. 106 AES 2010 HANDBOOK Page 25 70. What is the procedure for preparing ballots for illiterate and person with disability/disabled voters? Ballots for illiterate and person with disability/disabled voters shall be prepared in the following manner: 111 Poll clerk must ensure that the person voting as illiterate and person with disability/disabled is indicated as such in the EDCVL or VRR. Poll clerk will verify authority of the assistor Assistor shall prepare (in the presence of the voter) the ballot using a ballot secrecy folder . Assistor shall ensure that the contents of the ballot are not displayed during the feeding of the same into the PCOS. The assistor shall sign in the appropriate space in the Minutes. Figure 4: Procedure in Assisting Disabled/Illiterate Voters 71. Is it possible for a precinct to run out of ballots with voters still remaining to vote? Yes. 112 111 112 COMELEC Resolution No. 8786 (4 March 2010), Section 31. COMELEC Resolution No. 8786 (4 March 2010), Section 37. AES 2010 HANDBOOK Page 26 72. Can the voter still vote if his/her assigned precinct has run out of ballots? How? Yes. In such a case, the BEI Chairman shall observe the following steps: a. Remove the sticker seal of the PCOS box and open the PCOS box; b. Issue a Certification to the voter, which states that the voter is a registered voter of the precinct, but there are no more available ballots with the precinct for use of the affected voter; c. Record such facts in the Minutes; and d. Request the Third Member to accompany the voter to the next precinct belonging to the same councilor district, where the affected voter shall cast his/her vote. 73. What will the BEI Chairman of the next precinct do in such case? The BEI Chairman shall 113: a. Require the voter to present the Certification issued by the Chairman of the precinct where the voter was originally assigned; b. Record in the Minutes the name of the voter, his precinct number, and the fact that a Certification has been issued by the Chairman of that precinct that there are no more available ballots for use in such precinct; c. Write the name of the voter in the EDCVL indicating opposite such voter’s name the voter’s original assigned precinct number; d. Before issuing a ballot to the voter, remove the sticker seal of the PCOS box and open the PCOS box; and e. Ensure that the voter observes the proper procedure for voting. 74. How should a person conduct himself within the polling place during election day? Anyone within the voting premises and during election day must conduct himself in such manner as would ensure that the election is conducted peaceably and orderly. 113 COMELEC Resolution No. 8786 (4 March 2010), Section 37 (e). AES 2010 HANDBOOK Page 27 75. What happens to unused ballots, if any? After the voting, the BEI Chairman, in the presence of other BEI members, shall 114: a. Record in the Minutes the quantity of unused ballots; b. Tear the unused ballots in half lengthwise; c. Place one half in the envelope (A15), and submit to the Election Officer for safekeeping; d. Place the other half in another envelope for the purpose, and then deposit inside the compartment of the ballot box for valid ballots. These facts shall be entered in the Minutes. ELECTION OFFENSE The following conduct inside the polling place constitutes election offense: � Acting in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing the BEI or BOC during any of its meetings from performing its functions 115 � Carrying out threats, intimidation, terrorism, use of fraudulent device or other forms of coercion 116 � Bringing of deadly weapons into the polling place and within a 100 meter radius from the polling place, without having been so authorized by COMELEC 117 � Employing any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted 118 � Compelling a voter to reveal how such voter voted 119 � Interfering with another’s exercise of his right to vote � Arresting or detaining a voter without lawful cause 120 � molesting a voter in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote 121 114 115 COMELEC Resolution No. 8786 (4 March 2010), Section 39. Batas Pambansa Blg. 881 (1985), Section 261 (bb) (4). Batas Pambansa Blg. 881 (1985), Section 261 (e). 117 Batas Pambansa Blg. 881 (1985), Section 261 (p). 118 Batas Pambansa Blg. 881 (1985), Section 261 (z) (5). 119 Batas Pambansa Blg. 881 (1985), Section 261 (z) (7). 120 Batas Pambansa Blg. 881 (1985), Section 261 (z) (7). 121 Batas Pambansa Blg. 881 (1985), Section 261 (z) (7). 116 AES 2010 HANDBOOK Page 28 VI. COUNTING OF VOTES 76. When and where should the BEI start counting the votes? As soon as the voting is finished, the BEI shall publicly begin counting the votes in the polling place and ascertain the results. 122 77. Can the BEI rearrange the physical set up of the polling place? The BEI may rearrange the physical set up of the polling place for the counting or any other activity with respect to the transition from voting to counting but only in the presence of the watchers and within close view of the public. At all times, the ballot boxes and all election documents and paraphernalia shall be within close view of the watchers and the public. 123 78. Can the BEI transfer the place of counting? The COMELEC, may authorize the BEI to count the votes to another public building as long as: a. it is located in the same municipality or city b. the public building is not located inside a military or police camp, or headquarters nor within a prison or detention bureau or any law enforcement or investigation agency 124 c. the transfer is needed on account of imminent danger of widespread violence or similar causes of comparable magnitude d. the transfer is recommended in writing by the BEI by UNANIMOUS vote and endorsed in writing by the majority of watchers present. 79. What are the procedures to start the counting of the votes? BEI shall perform the closing function of the PCOS BEI shall connect the transmission cable function of the PCOS The BEI shall enter the iButton Security Key and the PINs of the poll clerk and the third BEI member. The PCOS will validate the PIN and shall close the POLL. 122 123 The PCOS shall automatically count the votes . Batas Pambansa Blg. 881 (1985), Section 206, as amended by Republic Act 9369 (2007), Section 35. Batas Pambansa Blg. 881 (1985), Section 206, as amended by Republic Act 9369 (2007), Section 35. 124 Batas Pambansa Blg. 881 (1985), Section 206, as amended by Republic Act 9369 (2007), Section 35. AES 2010 HANDBOOK Page 29 80. What is the next step immediately after all the votes have been counted? After all the votes have been counted, the PCOS shall request if the BEI would like to digitally sign the transmission files with a BEI signature key. The BEI shall select “no” and the PCOS shall immediately print 8 Election Returns (ER) copies for National Positions. The PCOS will then ask if the BEI would like to print more copies of the ER, the BEI shall select “no” and the PCOS shall immediately print 8 ER copies for Local Positions. The PCOS will then ask if the BEI would like to print more copies of the ER, the BEI shall again select “no”. 81. What are the next steps after printing eight (8) copies of the ER? The BEI shall detach the 8 copies of the ER from the PCOS and the members of the BEI shall affix their signatures and thumb marks thereon. The BEI shall ask the watchers present to affix their signatures on the printed ERs and place each copy of the ER in its corresponding envelope and seal with a paper seal. 82. What are the next step after the ER has been signed and sealed? The BEI Chairman shall publicly announce the results. The poll clerk shall post the second copy of the ER within the premises of the polling place/counting center which must be accessible to the public. 125 83. After the BEI Chairman publicly announces the total number of votes received by each candidate and the posting by the poll clerk of a copy of the ER, what are the next steps of the BEI? The BEI shall transmit the results. 84. What if a member of the BEI refuses to sign the ER? If any member of the BEI refuses to sign, the BEI Chairman shall note the same in each copy of the printed ER. The member of the BEI concerned refusing to sign shall be compelled to explain his or her refusal to do so. Failure to explain an unjustifiable refusal to sign each copy of the printed ER by any member of the BEI shall be punishable as provided under the law. 126 125 126 COMELEC Resolution No. 8739 (29 December 2009), Section 38 (6) (b). Republic Act No. 8436 (1997), Section 22, as amended by Republic Act No. 9369 (2007), Section 19. AES 2010 HANDBOOK Page 30 85. What happens if the PCOS fails to count the votes or transmit/print the results? The Operator shall announce the error and undertake the necessary corrective measures. Should the Operator be unable to correct the error, he shall call on the Technical Support personnel assigned to the Voting Center for assistance. Such fact shall be noted in the Minutes. 86. What happens in case there are more votes than Voters? Votes in the precinct/clustered precinct corresponding to the number of voters who actually voted, which shall not be more than the number of registered voters plus the number of BEI members and their support staff as specified by the COMELEC, shall be counted. 127 87. What will happen if the BEI shall fail to deliver any of the election documents or paraphernalia required to be delivered? The Provincial Election Supervisor, Election Officer or the Treasurer shall require the BEI which failed to deliver the election documents or paraphernalia to deliver the same immediately. 88. What will happen if the Ballot Box delivered by the BEI is not locked or sealed? In case the ballot box is not locked and/or sealed, the treasurer shall lock and/or seal the ballot box and this shall be included in his report to the COMELEC. 128 89. What happens if the PCOS fails to count the votes or transmit the results? In case a PCOS fails to count the vote or transmit the results, the Operator shall announce the error and undertake the necessary corrective measures. Should the Operator be unable to correct the error, he shall call on the Technical Support personnel assigned to the Voting Center for assistance. Such facts shall be noted in the minutes. 129 127 General Policies, Rules and Guidelines (2009), Section 4 (1) (1). COMELEC Resolution No. 8739 (29 December 2009), Section 41 (d). 129 COMELEC Resolution No. 8739 (29 December 2009), Section 38 (6). 128 AES 2010 HANDBOOK Page 31 90. Can a manual counting of votes be conducted? The COMELEC may resort to manual counting of the votes in case the automated counting system fails. 130 91. What are instances where a manual count should be conducted instead of using another PCOS machine? In case the failure of the automated counting are not machine‐related such as in the case where the errors in counting were due to the misprinting of ovals and the use of wrong sequence codes in the local ballots, which will certainly result in an erroneous count and subvert the will of the electorate. 131 130 131 Maruhom v. COMELEC, G.R. No. 139357, 5 May 2000. Tupay Loong v. COMELEC, G.R. No. 133676, 14 April 1999. AES 2010 HANDBOOK Page 32 VII. ELECTION RETURNS 92. What is an election return (ER)? An ER is a document in electronic and printer form directly produced by the counting or voting machine, showing the date of the election, the province, municipality and the precinct in which it is held and the votes in figures for each candidate in a precinct in areas where AES is utilized. 132 93. At what point of the election process is an ER produced? An ER is produced after the BEI has undertaken the procedure to close the voting, for counting of ballots and transmission of results. 133 94. What is the procedure to be followed in (a) closing the voting and counting of ballots, and (b) printing and transmitting the ER? The step‐by‐step procedure for (a) closing the voting and counting the ballots, and (b) printing and transmitting the ER are found below 134: Select the “Yes” option when the “ARE YOU SURE YOU WANT TO CLOSE THE VOTING?” prompt appears. Press “CLOSE VOTING” option in the Main Menu PCOS to request and validate the PIN of another poll clerk. PCOS to request and validate the PIN of the poll clerk. PCOS to display the message: “POLL IS BEING CLOSED PLEASE WAIT.” Figure 5: Closing the Voting and Counting the Ballots 132 133 Republic Act No. 8436 (1997), as amended by Republic Act No. 9369 (2007), Section 2 (4). COMELEC Resolution No. 8786 (4 March 2010), Section 38. 134 COMELEC Resolution No. 8786 (4 March 2010), Section 40. AES 2010 HANDBOOK Page 33 The PCOS shall display: “PRINTING 8 COPIES OF ELECTION RETURNS (ER) FOR NATIONAL POSITIONS… PLEASE WAIT” and “PRINTING 8 COPIES OF ELECTION RETURNS FOR LOCAL POSITIONS. PLEASE WAIT…” The BEI publicly announces the total number of votes obtained by each candidate and their corresponding offices. Each BEI member inserts his iButton security key intended for the digital signature in the iButton security key receptacle. Ensure that the ERs are posted in a place that are sufficiently lighted and accessible to the public The poll clerk announces the posting of a second copy of the ER both for national and local positions (a wall within the premises of the polling place/counting center) The PCOS will display: “READY TO TRANSMIT. PLEASE PLUG IN TRANSMISSION CABLE TO ELECTRONICALLY TRANSMIT ELECTION REPORTS AND PRESS OK TO CONTINUE.” Is modem properly connected? NO Machine will display: “TRANSMISSION CABLE NOT CONNECTED, RETRY?”. Check the PCOS. After three (3) failed attempts, call support technician. YES PCOS will display: “ELECTRONICALLY TRANSMITTING ELECTION REPORTS TO <name of BOC server> PLEASE WAIT…” PCOS will display: “TRANSMISSION CABLE CONNECTED. BEGINNING TRANSMISSION OF REPORTS.” Followed by: “ELECTION REPORTS SUCCESSFULLY TRANSMITTED TO <name of BOC server>. Or “FAILED TO TRANSMIT ELECTION REPORTS TO <name of BOC server>. PRESS RETRY TO TRY AGAIN OR SKIP TO TRANSMIT TO NEXT LOCATION.” (if after three (3) failed attempts, press the “SKIP” button for the PCOS to transmit to the next destination. Message: “ALL ELECTION REPORTS HAVE BEEN SUCCESSFULLY TRANSMITTED TO <name of BOC server>, DMAP-DMIP-ACAKBP AND TO CENTRAL SERVER. PLEASE DISCONNECT TRANSMISSION CABLE”. Select “PRINT REPORTS”. The PCOS will display the message “PLEASE SELECT WHICH REPORT YOU WOULD WANT TO PRINT.” YES Are additional copies of the report needed? The PCOS shall print (1) the remaining twentytwo (22) copies of ERs, (2) a copy of statistical report and (3) audit log report. The Statistical Report and Audit Log report shall be placed in the envelope (Election Form 180A) where the Initialization Report was placed. NO After printing the reports, the BEI members shall affix their signatures and thumbmarks over the printed ERs. The BEI shall ask the watchers present to affix their signatures on the printed election returns. Select report to print. After printing, the PCOS will automatically display the main menu. The PCOS will display: “PLEASE ENTER THE NUMBER OF COPIES TO PRINT.” Press the number of copies to print and press “ENTER”. The PCOS will display “PRINTING <no. of copies> COPIES OF REPORT. PLEASE WAIT.” End Figure 6: Printing and Transmitting the ERs        AES 2010 HANDBOOK    Page 34  95. What happens if the PCOS fails to count the vote or transmit/print the results? In these instances, the Operator shall announce the error and undertake the necessary corrective measures. Should the Operator be unable to correct the error, he/she shall call on the Technical Support personnel assigned to the Voting Center for assistance. Such fact shall be noted in the Minutes. 135 96. How are the copies of ER distributed? After the printing of the ERs, the BEI shall individually fold the first eight (8) copies of the ERs, seal each of them with serially numbered paper seals, place in the envelope (Election Form No. A17), and seal the envelopes for distribution to the following: 136 Copy 1st 2nd 3rd 4th 5th 6 th Election of the President, Vice‐President, Senators and Party‐list System City or municipal board of canvassers Congress, directed to the President of the Senate COMELEC Citizens' arm authorized by the COMELEC to conduct an unofficial count Dominant majority party as determined by the COMELEC Dominant minority party as determined by the COMELEC Ballot box Copy 1st 2nd 3rd 4th 5th 6 th Election of Local Officials and Members of the House of Representatives City or municipal board of canvassers COMELEC Provincial board of canvassers Citizens' arm authorized by the COMELEC to conduct an unofficial count Dominant majority party as determined by the COMELEC in accordance with law Dominant minority party as determined by the COMELEC in accordance with law One (1) to be posted conspicuously on a wall within the premises of the polling place or counting center Ballot box Ten (10) accredited major national parties, excluding the dominant and minority parties, in accordance with a voluntary agreement among them. Two (2) accredited major local parties in accordance with a voluntary agreement among them. Five (5) national broadcast or print media entities as may be equitably determined by the COMELEC in view of propagating the copies to the widest extent possible Two (2) local broadcast or print media entities as may be equitably determined by the COMELEC in view of propagating the 7th th 7th th 8 Provincial Board of Canvassers Ten (10) accredited major national parties, excluding the dominant and minority parties, in accordance with a voluntary agreement among them. Two (2) accredited major local parties in accordance with a voluntary agreement among them. Four (4) national broadcast or print media entities as may be equitably determined by the COMELEC in view of propagating the copies to the widest extent possible Two (2) local broadcast or print media entities as may be equitably determined by the COMELEC in 8 9th to 18th 9th to 18th 19th to 20th 21st to th 24 19th to 20th 21st to th 25 25 to th 26 th 26 to th 27 th 135 136 COMELEC Resolution No. 8786 (4 March 2010), Section 40 (qq). COMELEC Resolution No. 8786 (4 March 2010), Section 41. AES 2010 HANDBOOK Page 35 Copy 27th 30th to 31 st Election of the President, Vice‐President, Senators and Party‐list System view of propagating the copies to the widest extent possible Four (4) major citizens’ arms, including the accredited citizens’ arm and other non‐partisan groups or organizations enlisted by the SEC pursuant to Section 52(K0 of B.P. Blg. 881. Such citizens’ arms, groups and organizations may use the four certified copies of election returns for the conduct of citizens’ quick counts at the local or national levels One (1) to be posted conspicuously on a wall within the premises of the polling place or counting center Copy Election of Local Officials and Members of the House of Representatives copies to the widest extent possible Three (3) major citizens’ arms, including the accredited citizens’ arm and other non‐ partisan groups or organizations enlisted by the SEC pursuant to Section 52(K0 of B.P. Blg. 881. Such citizens’ arms, groups and organizations may use the four certified copies of election returns for the conduct of citizens’ quick counts at the local or national levels 28th to 31st 97. What will the procedure be if the parties could not reach an agreement as to the copies distributed to the accredited major national and local parties? If no such agreement is reached, the COMELEC shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166. 137 The following are the criteria provided in Section 26 of R.A. No. 7166 for choosing the parties a. The established record of the parties, coalition of groups that compose them, taking into account, among other things, their showing in past elections; b. The number of incumbent elective officials belonging to them ninety (90) days before the date of election; c. Their identifiable political organizations and strengths as evidenced by their organized/chapters; d. The ability to fill a complete slate of candidates from the municipal level to the position of President; and e. Other analogous circumstances that may determine their relative organizations and strengths. 137 Republic Act No. 8436 (1997), Section 22, as amended by Republic Act No. 9369 (2007), Section 21. AES 2010 HANDBOOK Page 36 98. Will a copy of the ERs be posted within the polling place or counting center? If so, when should such copy be posted? Yes. After the PCOS has printed 8 copies of the ER both for national and local positions, the poll clerk shall announce the posting of a copy of the second copy of the ER both for national and local positions on a wall within the premises of the polling place/counting center which must be sufficiently lighted and accessible to the public, and proceed to post such copies. 138 99. How long will such elections returns be posted? Said copies of the ERs will be posted for forty‐eight (48) hours. 139 100. Will the public be allowed to take photos the copy posted in the polling place or counting center? Yes. Any person may view or capture an image of the ER by means of any data capturing device like cameras, at any time of the day for 48 hours following its posting. 140 101. Can the public request for copies of the ER? Yes. Additional copies not to exceed 30 may be printed and given to requesting parties at their own expense. 141 102. What happens after the 48‐hour posting period? After the 48‐hour period lapses, the BEI Chairman shall detach said ER from the wall and keep the same in his custody to be produced as may be requested by any voter for image or data capturing or for any lawful purpose as may be ordered by competent authority. 142 138 COMELEC Resolution No. 8786 (4 March 2010), Section 40 (p). Republic Act No. 7166 (1997), Section 27, as amended by Republic Act No. 9369 (2007), Section 33; COMELEC Resolution No. 8786 (4 March 2010), Section 40 (q). 140 Republic Act No. 7166 (1991), Section 27, as amended by Republic Act No. 9369 (2007), Section 33; COMELEC Resolution No. 8786 (4 March 2010), Section 40(q). 141 Republic Act No. 7166 (1991), Section 27, as amended by Republic Act No. 9369 (2007), Section 33. 142 Republic Act No. 7166 (1991), Section 27, as amended by Republic Act No. 9369 (2007), Section 33. COMELEC Resolution No. 8786 (4 March 2010), Section 40(q). 139 AES 2010 HANDBOOK Page 37 VIII. POST‐COUNTING AND POST‐TRANSMISSION PROCEDURES 103. What shall the BEI do next upon the termination of the counting of votes and the announcement of the results of the election in the precinct? Place inside the ballot box copies of the printed ER and Minutes of Testing and Sealing; voting and Counting of Votes intended for the ballot box; Half of torn unused ballots; and Rejected Ballots. Close the ballot box; lock it with one (1) serially numbered seal with steel wire and three (3) padlocks. Remove the main memory from the PCOS, place it inside an envelope and seal it. Place the keys to the padlocks in separate enveloped, which must be sealed ad signed by all members of the BEI. Label the envelope as “TRANSMITTED” or “NOT TRANSMITTED” and submit it to the Reception and Custody Group of the City/Municipal Board of Canvassers. Turn‐over the PCOS to the Support Technician in the voting center. Deliver to the Election Officer the following documents: Book of Voters; EDCVL; PCVL; Three (3) envelopes, each containing a key to a padlock of the ballot box; Envelope (A11) containing the copy of the Minutes intended for the COMELEC; Envelope (A15) containing the other half of torn unused official ballots; List of Voters allowed to vote, if any, after 6:00 o’clock; Envelope containing Initialization Report, Precinct Audit Log Report and Precinct Statistics Report; election returns intended for the Provincial Board of Canvassers, Regional Board of Canvassers and the Commission on Elections; envelope containing the main memory card for use by the MBOC in case of failure of transmission; Other documents ; Deliver the ballot box, accompanied by watchers to the city or municipal treasurer. In case the ballot box is not locked and/or sealed, the treasurer shall lock and/or seal it. The treasurer shall include such fact and the serial number of the self‐locking serially numbered fixed length seal used, in his report to the COMELEC. Figure 7: Steps after termination of counting of votes and announcement of results AES 2010 HANDBOOK Page 38 After the counting of votes, the Provincial Election Supervisor, Election Officer or the Treasurer, shall require the BEI which failed to deliver the election documents or paraphernalia immediately. The procedure for the delivery and transmittal of printed copies of election returns are provided in Comelec Resolution No. 8803 promulgated on 16 March 2010. 104. What will the Election Officer do with the EDCVL and the PCVL? The Election Officer shall keep the EDCVL and the PCVL in a safe place until such time that the COMELEC gives instructions on their disposition. 143 105. What should the BEI do if it omits or erroneously includes documents in the ballot box? Instead of opening the ballot box to place the omitted documents or articles, the BEI shall deliver the same to the Election Officer. The Election Officer shall take appropriate measures to preserve the integrity of the documents. 144 106. Can the ballot box be reopened? No, in no instance shall the ballot box be reopened to place or to take out any document or article. Only in proper cases and with prior written authority of the COMELEC to retrieve copies of the ERs which will be needed in any canvass will the ballot boxes be reopened. In such instance, the BEI members and the watchers shall be notified of the time and place of the opening of said ballot box. However, if there are other authentic copies of the ERs outside of the ballot box which can be used in the canvass, such copies of the ERs shall be used in said canvass and the opening of the ballot box to retrieve copies of the ERs placed therein shall then be dispensed with. 145 143 COMELEC Resolution No. 8786 (4 March 2010), Section 44. COMELEC Resolution No. 8786 (4 March 2010), Section 45. 145 COMELEC Resolution No. 8786 (4 March 2010), Section 45. 144 AES 2010 HANDBOOK Page 39 IX. CANVASS A. The Board of Canvassers (BOC) 107. For which areas should there be constituted a BOC and who exercises supervision and control over the Board? There shall be a BOC in each municipality, city, province, and in each legislative district comprising two (2) municipalities/cities. 146 COMELEC shall have direct control and supervision over BOCs and may motu proprio relieve, for cause, at any time, any member and designate the substitute. 147 108. What is the composition of the BOC in the different levels? The BOCs at the different levels shall be composed as follows: Board of Canvassers National BOC for President and Vice‐ President National BOC for Senators and Partylist Representatives PBOC Composition Senate and the House of Representatives in joint public session Chairman and members of the COMELEC sitting en banc MBOC City BOC Provincial Election Supervisor or a COMELEC representative, as Chairman; the Provincial Prosecutor, as Vice‐Chairman; and the District School Superintendent, as Member. 148 Election Officer or a COMELEC representative, as Chairman; the Municipal Treasurer, as Vice‐Chairman; and the District School Supervisor, or in his absence, the most senior Principal of the school district, as Member City Election Officer or a COMELEC lawyer, as Chairman; the City Prosecutor, as Vice‐Chairman; and the Division Superintendent of Schools, as Member Note: In cities with more than one Election Officer, COMELEC shall designate the Election Officer who shall act as chairman. 149 146 147 COMELEC Resolution No. 8809 (30 March 2010), Section 1. COMELEC Resolution No. 8809 (30 March 2010) Section 2. 148 COMELEC Resolution No. 8809 (30 March 2010), Section 5; Republic Act No. 6646 (1988), Section. 20 (a) states that the provincial BOC shall be composed of the provincial election supervisor or a lawyer in the regional office of the COMELEC, as chairman, the provincial fiscal, as vice‐chairman, and the provincial superintendent of schools, as member. AES 2010 HANDBOOK Page 40 District BOC (for legislative districts of Metro Manila comprising two (2) cities or municipalities) City Election Officer or a COMELEC lawyer, as chairman, the city prosecutor, as vice‐chairman, and the city superintendent of schools, as member 109. Is the composition of the BOCs affected by the AES? No. The composition of the BOCs, whether it be provincial, city, or municipal is not materially affected by Republic Act No. 9369. However, to implement the AES, each BOC shall be assisted by an information technology‐capable person authorized to operate the equipment adopted for the elections. COMELEC shall deputize information technology personnel from among the agencies and instrumentalities of the government, including government‐owned and controlled corporations. 150 This technology‐capable person shall be known as CCS operator. The CCS operators shall be designated by the Provincial Election Supervisor concerned, in the case of the city BOC/municipal BOC outside the National Capital Region (NCR), and by the NCR Regional Election Director in the case of the city, municipal and district BOC in the NCR. The Regional Election Director concerned shall designate the CCS operator in the case of the provincial boards of canvassers in regions outside the NCR. 151 110. Who is disqualified from being a CCS Operator? One who is related within the fourth civil degree of consanguinity or affinity to any member of the BOC which he will assist or to any of the candidate whose votes shall be canvassed by the BOC which he will assist is disqualified from being a CCS Operator. 152 111. Who are disqualified from being BOC members? Those related within the fourth civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said BOC, or to any member of the same BOC shall be disqualified from being a BOC Chairman or member. 153 112. 149 What happens if the BOC Chairman or member is not available, absent, COMELEC Resolution No. 8809 (30 March 2010), Section 4; Republic Act No. 6646 (1988), Section. 20 (b) states that the city BOC shall be composed of the city election registrar or a lawyer of the COMELEC, as chairman, the city fiscal, as vice‐chairman, and the city superintendent of schools, as member. In cities with more than one election registrar, the COMELEC shall designate the election registrar who shall act as chairman. 150 Republic Act No. 9369 (2007), Section 5. 151 COMELEC Resolution No. 8809 (30 March 2010), Section 7. 152 COMELEC Resolution No. 8809 (30 March 2010), Section 7. 153 Batas Pambansa Blg. 881 (1985), Section 222. AES 2010 HANDBOOK Page 41 disqualified due to relationship, or incapacitated for any cause? In these instances, a ranking COMELEC shall be appointed as substitute. 154 For other BOC members, COMELEC shall appoint as substitute the following in the order named: BOC PBOC Substitute a. Provincial Auditor, b. Register of Deeds, c. Clerk of Court nominated by the Executive Judge of the Regional Trial Court, and d. other available appointive provincial official a. City Auditor, b. Register of Deeds, c. Clerk of Court nominated by the Executive Judge of the Regional Trial Court, and d. other available appointive city official a. Municipal Administrator b. Municipal Assessor c. Clerk of Court of the Municipal Trial Court nominated by the Executive Judge of the Municipal Trial Court, or d. any other available appointive municipal officials a. next ranking prosecutor or b. district supervisor in the district. 155 CBOC MBOC District BOC of the legislative districts in Metro Manila 154 COMELEC Resolution No. 8809 (30 March 2010), Section 8; Batas Pambansa Blg. 881 (1985), Section 226 states: “In case of non‐ availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman, the COMELEC shall designate the provincial or city fiscal to act as chairman. Likewise, in case of non‐availability, absence, disqualification due to relationship, or incapacity for any cause, of such designee, the next ranking provincial or city fiscal shall be designated by the COMELEC and such designation shall pass to the next in rank until the designee qualifies.” 155 COMELEC Resolution No. 8809 (30 March 2010), Section 8; Batas Pambansa Blg. 881 (1985), Section 226 states: “With respect to the other members of the BOC, the COMELEC shall appoint as substitute the provincial, city or municipal officers of other government agencies in the province, city or municipality, as the case may be, and with respect to the representatives of the accredited political parties, the COMELEC shall appoint as substitutes those nominated by the said political parties.” AES 2010 HANDBOOK Page 42 113. Who has the authority to appoint substitute members of the BOCs and what is the duty of the appointing authority with respect to his appointment of substitute BOC members? The authority to appoint substitute BOC members shall be vested in the following: a. Regional Election Director, for the PBOC in his region; b. Provincial Election Supervisor, for the CBOC and MBOC in his province; and c. Regional Election Director of the National Capital Region, for the DBOC/MBOC/CBOC in his region. Within twenty‐four (24) hours from issuance of the appointment of a substitute, they shall inform the Office of the COMELEC Executive Director in writing about the (i) appointment, and (ii) reason for substitution. 156 114. What shall be done should a regular BOC member appear to be absent? In case a regular BOC member is absent, the BOC members present shall first verify whether notice has been served on the absent member. In case no such notice was sent, a notice shall be immediately served on the absent member. If the latter cannot be located or his whereabouts are unknown, he shall be substituted. These facts shall be recorded in the Minutes of the BOC. As soon as the absent member appears, the substitute member shall relinquish his seat in favor of the regular member. 157 115. What is required and what shall be done in case a regular BOC member of the Board is incapacitated by sickness or serious injury? In case of sickness or serious injury of a regular BOC member, a medical certificate shall be required attesting to the incapacity of said member. Upon submission of the medical certificate, a substitute shall be appointed. Said medical certificate shall be recorded in and form part of the Minutes of the BOC. 156 157 COMELEC Resolution No. 8809 (30 March 2010), Section 8. COMELEC Resolution No. 8809 (30 March 2010), Section 12. AES 2010 HANDBOOK Page 43 ELECTION OFFENSE Any BOC member feigning illness in order to be substituted on election day until the proclamation of the winning candidates shall be guilty of an election offense. 158 116. Who shall record and prepare the Minutes of BOC proceedings? The district school supervisor, or the principal, the city or provincial superintendent of schools, as the case may be, or any representative of the DepEd shall act as Secretary, unless otherwise ordered by the COMELEC. He shall prepare the minutes of the Board by recording therein the proceedings and such other incidents or matters relevant to the canvass. 159 117. How and when should the minutes of the canvassing be reported? A certified copy of the Minutes of Canvass shall be sent by registered mail to the Law Department of the COMELEC. Said department shall likewise be notified by telegram indicating the date and the manner of transmittal of the Minutes of Canvass. 160 The Minutes of Canvass shall be transmitted within five (5) days from termination of canvass. 118. May a member of the BOC be transferred, assigned or detailed outside of his official station, or leave said station without prior authority of the COMELEC during the period beginning election day until the proclamation of the winning candidates? Is there an exception to this rule? During the period beginning on election day until the proclamation of the winning candidates, no BOC member or substitute shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the COMELEC. 161 158 Batas Pambansa Blg. 881 (1985), Section 224. COMELEC Resolution No. 8809 (30 March 2010), Section 9. COMELEC Resolution No. 8809 (30 March 2010), Section 25. 161 Batas Pambansa Blg. 881 (1985), Section 223; See also COMELEC Resolution No. 8809 (30 March 2010), Section 14. 159 160 AES 2010 HANDBOOK Page 44 As an exception, the Provincial Election Supervisor in the case of MBOC or CBOC and the Regional Election Director in the case of PBOC DBOC may issue such authority. In either case, a written report shall be submitted to the Law Department. 162 119. What are the functions and responsibilities of the Provincial, City, District and MBOCs? The BOCs shall: a. b. c. d. e. Canvass/consolidate the electronically transmitted results; Generate and print the COC, COCP, and SOV; Electronically transmit the result; Proclaim the winning candidates; and Perform such other functions as may be directed by the COMELEC. 163 120. What are the duties of the National BOC for President and Vice‐President? The national BOC for President and Vice president shall electronically transmit a duly certified COC to the Senate president. Upon receipt of the COCs, the Senate President shall, not later than thirty (30) days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session. Upon determination of the authenticity and the due execution thereof in the manner provided by law, Congress canvass all the results for president and vice‐president and thereafter, proclaim the winning candidates. 164 162 163 164 COMELEC Resolution No. 8809 (30 March 2010), Section 14. COMELEC Resolution No. 8809 (30 March 2010), Section 18. Republic Act No. 8436 (1997), Section 28, as amended by Republic Act No. 9369 (2007), Section 23; See also Sixto S. Brillantes, Jr., et al. v. COMELEC, G.R. No. 163193, 15 June 2004. AES 2010 HANDBOOK Page 45 B. Manner of Canvassing 121. What procedures shall the BOC observe before the canvassing begins? Before the canvassing begins, the BOC shall observe the following procedures: 165 Show to the public and watchers that the CCS box is sealed. Remove the plastic seal of the CCS box. Check whether the following are inside the CCS box: (1) CCS Laptop Box, (2) Three envelopes containing username and passwords Open the CCS box. Retrieve the envelopes and USB tokens and distribute. Retrieve the CCS laptop from its box and place it properly on top of the table. Figure 8: Preliminaries to Canvassing 165 COMELEC Resolution No. 8809 (30 March 2010), Section 26. AES 2010 HANDBOOK Page 46 122. What procedures are to be followed by the BOC during canvassing relative to the initialization of the Consolidation and Canvassing System (CCS)? Immediately after convening, the Board shall receive from the RCG the envelope containing the memory card for the PCOS labeled “NOT TRANSMITTED” and undertake the following canvassing procedures: 166 Plug the power cord of the laptop to the extension cord. Plug the extension cord to the electrical outlet or generator. Turn on the laptop by pressing the power button. Install the available SIM card provided in the USB modem. Connect the USB modem extension cable to the USB port of the laptop. Hit the ENTER button in the WELCOME page of the CCS. Connect the transmission medium to the USB modem extension cable. Wait for one (1) minute. Click on the network icon available in the lower right corner of the screen. Click the wireless provider and wait for the connection to be established. If connection cannot be established using USB modem and BGAN kit is available Connect the power adaptor to the 2-pin cord then to the electrical outlet. If needed, use the electrical extension cord. Install BGAN battery. Install the BGAN SIM card in the BGAN SIM card slot. Connect the power adaptor to the BGAN. Connect the BGAN to the laptop using the network cable. Place the BGAN to an outdoor location with a clear sight facing the sky. Ensure that the BGAN is connected to the satellite provider. Turn on the BGAN by pressing the ON button. Align the BGAN accordingly. The connection icon on the lower right should indicate a successful network connection: “Etho Connected”. End If 1 Figure 9: CCS Initialization 166 COMELEC Resolution No. 8809 (30 March 2010), Section 27 (a). AES 2010 HANDBOOK Page 47 123. How is the canvassing started? After initializing the CCS, in the “WELCOME” page, the CCS operator shall 167: Request the Chairman to enter his username and password in the space provided and click ACCEPT. The screen will display the Home page. Check and ensure that the CCS is still online. Click on the ENTER button. Figure 10: Starting the Canvassing 124. How are the transmissions of data from voting centers monitored by the Boards? The municipal BOC/city BOC through the CCS Operator shall 168: MBOC/CBOC through CCS Operator Click on the MONITORING option in the Home page and click MONITOR RESULTS TRANSMISSION. A list of barangays will appear with a colored button before each. Red means transmission has not started yet; Yellow, ongoing; Green, completed. To monitor a barangay, click on a barangay name and a list of voting centers will appear. To update the status of transmission from the PCOS or a clustered precinct, click UPDATE at the bottom of the screen. To monitor a precinct, click the voting center where the precinct belongs. PBOC/DBOC through CCS Operator Click on the MONITORING option in the Home page then click MONITOR RESULTS TRANSMISSION. A list of cities will appear with a colored button before each. Red means transmission has not started yet; Yellow, ongoing; Green, completed. To monitor a city, click on a barangay name and a list of voting centers will appear. To update the status of transmission from a city/ municipal CCS, click UPDATE. Figure 11: Monitoring Data Transmission 167 168 COMELEC Resolution No. 8809 (30 March 2010), Section 27 (b). COMELEC Resolution No. 8809 (30 March 2010), Section 27 (c). AES 2010 HANDBOOK Page 48 125. What may be done in the case of unstransmitted results? In case the BOC receives from the Reception and Custody Group (RCG) an envelope labeled with “NOT TRANSMITTED”, the BOC shall open the said envelope, retrieve the memory card and give the same to the CCS Operator. The CCS Operator shall: CBOC/MBOC Attach memory card reader to the laptop. Insert the main memory card in the main memory card reader. Click ADMINISTRATION in the Home page. The Administration options will appear. Remove the USB token from the USB slot. Request any member of the Board to insert his USB token in the laptop and type his username and password. Click OK. Click on LOAD PCOS RESULTS. The CCS will display input box dialogue for EML FILE INPUT. Request another member of the Board to insert his USB token in the laptop and logon. Click OK. The CCS will display EML FILE input box. Click on BROWSE button. The CCS will display the FILE UPLOAD dialogue box. Click on the directory for card reader (MEDIA) at the left pane of the dialogue box. Wait until processing is done. The Home page will display the message THE ELECTION RETURN WAS SUCCESSFULLY PROCESSED. Click ACCEPT. Click RESTRANS file from the list of files in the right pane of the dialogue box and click OPEN. Remove the main memory card from the memory card reader, return to its envelope and change the label to TRANSMITTED. Repeat steps 2 through 13 until all memory cards contained in envelopes labeled NOT TRANSMITTED are processed. Submit all processed memory cards to Election Officer for safekeeping. Remove the main memory card reader from the laptop. Figure 12: Procedure in case of Untransmitted Results AES 2010 HANDBOOK Page 49 126. How are the canvass reports generated? The CCS operator shall generate Canvass Report before generating and printing COC. For this purpose, the CCS operator shall: Before a Certificate of Canvass (COC) can be generated and printed, the CCS operator must first generate and print a consolidated Canvass Report. For this purpose, the CCS operator shall: Click GENERATE CONSOLIDATED CANVASS REPORT. A dialogue box will appear requiring the insertion of security tokens. Request any member of the Board to insert his USB token in the laptop and type his username and password. Click OK. Click the CANVASSING option in the Home page.cl Remove the USB token from the USB slot. Request another member of the Board to insert his USB token in the laptop and logon. Click OK. The CCS will display EML FILE input box. Remove the USB token from the USB slot. The CCS shall automatically generate the Canvass Report for all positions. The Print Preview will appear. Click on the printer icon. Click OK. Click CONTINUE at the bottom of the screen. Figure 13: Generation and Printing of Consolidated Canvass Report AES 2010 HANDBOOK Page 50 127. How are the COCs generated and printed? COCs are generated and printed following the procedure below: If all expected clustered precincts have been received Click CANVASSING in the Home page. Click CONSOLIDATED CERTIFICATE OF CANVASS (COC). A prompt will require security tokens. End If If not all expected results are received M/C/DBOC to verify with BEI concerned the reason for nontransmittal of results. PBOC to verify with M/ CBOC the reason for non-transmittal of municipal/city results. End If If results cannot be transmitted and will not affect elections Click CANVASSING in the Home page. Click GENERATE CERTIFICATES OF CANVASS (COC). A prompt will require security tokens. Select the position for which the COC will be generated. A prompt will require security tokens. Remove the USB token from the USB slot. The CCS will automatically generate the COC for the position selected. Request another member of the Board to insert his USB and type his username and password. Click OK. Remove the USB token from the USB slot. Request any member of the Board to insert his USB and type his username and password. Click OK. The Print Preview will appear. Click on the printer icon then type 8 as the number of copies to be printed. Click OK. Click CONTINUE. To generate the COC for the next position, repeat steps 3 through 9. End If If results cannot be transmitted and will affect elections Board to ask from the Commission the authority to generate and print COC for a position and to proclaim as winners those whose standing are not affected by the lacking results. End If Figure 14: Generation and printing of COC AES 2010 HANDBOOK Page 51 128. What is the manner of transmitting results? After generating and printing eight (8) copies of the COCs for all positions and announcing the results, the Board, through the CCS operator, shall immediately transmit the COCs to the Canvassing Boards concerned, and to the central server. The CCS operator shall Click ADMINISTRATION from Home page. Click TRANSMIT RESULTS in the Home page. Wait until positions are listed in the top of the screen with a message SUCCESSFULLY TRANSMITTED. Click ACCEPT button. The CCS will automatically display the Home page. Figure 15: Transmission of Results 129. What procedure must be followed in the printing of remaining COC Reports? After transmission of the COCs to the Canvassing Boards concerned and to the central server, the CCS operator shall: Click GENERATE CERTIFICATES OF CANVASS (COC). A prompt will require security tokens. Select the position for which a COC will be generated. A prompt will require security tokens. Click CANVASSING in the Home page. Request another member of the Board to insert his USB and enter his username and password. Click OK. Remove the USB token from the USB slot. Request any member of the Board to insert his USB and enter his username and password. Click OK. Remove the USB token from the USB slot. The CCS will automatically generate the COC for the position selected. The Print Preview will appear. Click on the printer icon and enter 22 as the number of copies to be printer. Click OK. Click CONTINUE. To generate the COC for the next position, repeat steps 3 through 9. Figure 16: Printing of Remaining COC Reports AES 2010 HANDBOOK Page 52 130. How is the consolidated SOV generated and printed? Click GENERATE CONSOLIDATED STATEMENT OF VOTES (SOV). A dialogue box will appear. Request any member of the Board to insert his USB and enter his username and password. Click OK. Click CANVASSING in the Home page. Remove the USB token from the USB slot. Request another member of the Board to insert his USB and enter his username and password. Click OK. Remove the USB token from the USB slot. The Print Preview will appear. Click on the printer icon and enter 4 as the number of copies to be printer. Click OK. Click CONTINUE. Figure 17: Generation and Printing of SOVs AES 2010 HANDBOOK Page 53 131. How is the Certificate of Canvass and Proclamation (COCP) generated? The CCS operator shall: Click CANVASSING in the Home page. Click GENERATE CERTIFICATES OF CANVASS AND PROCLAMATION. A dialogue box will appear. Request any member of the Board to insert his USB and enter his username and password. Click OK. Remove the USB token from the USB slot. Request another member of the Board to insert his USB and enter his username and password. Click OK. Remove the USB token from the USB slot. If there is a tie Click on a position in the GENERATE CERTIFICATES OF CANVASS AND PROCLAMATION screen to generate COCP. If there are no candidates with same number of votes for a position The Board shall record in the Minutes the fact of having candidates with the same number of votes for a position. The Board shall notify the candidates regarding the drawing of lots to break the tie. Click ACCEPT at the bottom of the screen which displays a decreasing list of votes for a particular position. CCS shall generate COCP. Click on the radio button beside the name of the winning candidate. Then click MOVE UP. Candidates or their reps shall be present during canvassing. The Board shall declare the winner and arrange the order of winners in the CCS. End If After completing the order, check the box beside the command ACCEPT DEFINED ORDER. Click ACCEPT. The CCS shall display the list of winning candidates in order and generate COCP. The Board shall declare as elected the winning candidates. Repeat until all positions are generated with COCP. Click PRINT. The print preview of the COCP will be displayed. Type 17 as the number of copies to be printed. Click OK. Figure 18: Generating COCP AES 2010 HANDBOOK Page 54 132. How is the Audit Log generated and printed? The CCS operator shall: Request the Chairman of the Board to insert his USB and enter his username and password. Click OK. Click MONITORING in the Home page. Click PRINT LOG option. Click the printer icon and press OK. Click PRINT at the bottom of the screen. Figure 19: Printing of Audit Log 133. What must be done after all the reports, i.e. COC, SOV, COCP, Audit Log are printed? Immediately after printing copies of the COCs, SOVs and COCP, the Board shall: The Board shall affix signatures and thumb marks on the printed COCs, SOVs and COCP. The Board shall ask the watchers present to affix their signatures and thumb marks on the printed COCs, SOVs and COCP. The Chairman of the Board shall publicly announce the total number of votes received by each candidate, stating their corresponding offices. The Member-Secretaries shall place in the corresponding envelopes with paper seals all reports. The Member-Secretaries shall announce the posting of the COCs on the wall within the premises of the canvassing area Figure 20: Post Printing Activities AES 2010 HANDBOOK Page 55 134. What are the procedures to be taken to ensure that the results generated by the CCS are backed up? After all the results have been successfully transmitted, the CCS Operator shall: Insert a blank disc in the CD drive. Click ADMINISTRATION in the Home page. Click BACK-UP RESULTS CCS FILES. Wait until the back-up process is completed. Remove the CD from the CD drive. Click ACCEPT. The Home page will be displayed. The CCS will display the positions with reports generated and a message SUCCESSFULLY PROCESSED CD BACKUP REQUEST. Place the CD inside an envelope intended for the purpose and seal it. Label the envelope as TRANSMITTED or NOT TRANSMITTED. Indicate in the envelope the city or municipality and province. Turnover the CD to the Chairman. Repeat steps 1 through 10 to back-up files in two additional discs. Sign the envelope. Submit to the Reception and Custody Group of the Provincial Board of Canvasser (for C/MBOC)/ National Board of Canvassers (for PBOC). The two (2) discs used to back-up the city/municipal or provincial results, duly sealed shall be submitted to the PBOC/CONGRESS and Commission. Figure 21: Backing up CCS results AES 2010 HANDBOOK Page 56 135. What is the procedure in shutting down the CCS? After printing of all the reports and transmission of the municipal/city/district/provincial results to all destinations, the following shall be undertaken: Press the power button. The screen will display a message SHUT DOWN THE COMPUTER. Click on the EXIT option in the Home page. Turnover the CCS laptop to the technician. Click SHUTDOWN. Figure 22: Shutting down CCS 136. When is the BOC Chairman required to give notice of the BOC’s initial and succeeding meetings? Not later than May 5, 2010, the Chairman of the Board shall give written notice to its members and to each candidate, political party or coalition of political parties fielding candidates (hereinafter referred to as political party), and party, organization/coalition participating under the party‐list system (hereinafter referred to as party‐list groups) of the date, time and place of the canvassing, which shall be held, unless otherwise ordered by the COMELEC, in the session hall of the Sangguniang Bayan/ Panlungsod/Panlalawigan. Notices of the canvassing shall be posted in the offices of the Election Officer/Provincial Election Supervisor, as the case may be, and in three (3) conspicuous places in the building where the canvass will be held. Similar notices shall also be given for subsequent meetings unless notice has been given in open session. Proof of service of notice to each member, candidate, political party fielding candidates and party‐list groups shall be attached to and form part of the records of the proceedings. If notice is given in open session, such fact shall be recorded in the minutes of the proceedings. AES 2010 HANDBOOK Page 57 ELECTION OFFENSE Failure to give notice of the date, time and place of the meeting of the BOC is an election offense under Sec. 261 (aa) (1) of the Omnibus Election Code. 169 Examples: Where the BOC merely recessed after it convened at 6:00 p.m. because there were no returns to canvass yet, and then resumed its proceedings when the returns arrived, there is no necessity to send another notice to its members and to each candidate and political party representing the candidates. In this case, there is no subsequent meeting of the BOC to speak of. 170 Where there is no doubt that the short notices (barely an hour) given to the candidates were expressly designed to prevent their attendance, the same is sufficient ground to annul the canvass. 171 137. When should the BOCs be convened? The BOCs shall convene at 12:00 o’clock noon of May 10, 2010 at the designated place to initialize the CCS and to receive and canvass the electronically‐transmitted ERs or the COCs. It shall meet continuously until the canvass is completed, and may adjourn only for the purpose of awaiting the other ERs/COCs. 172 138. What is the vote required for the BOC to render a decision in issues and matters before them? A majority of the BOC members shall constitute a quorum for the transaction of business, and a majority vote of all members thereof shall be necessary to render a decision. 173 169 170 COMELEC Resolution No. 8809 (30 March 2010), Section 10; See also Republic Act No. 6646 (1988), Section 23. Quilala v. COMELEC, G.R. No. 82726, 13 August 1990. 171 Rufino S. Antonio, Jr. v. COMELEC, G.R. No. L‐31604, 17 April 1970. 172 COMELEC Resolution No. 8809 (30 March 2010), Section 11. 173 COMELEC Resolution No. 8809 (30 March 2010), Section 17; See also Batas Pambansa Blg. 881 (1985), Section 225. AES 2010 HANDBOOK Page 58 C. Persons Present During Canvassing 139. What rights do registered political parties, coalition of parties, and candidates have before the BOC and during canvassing? Each registered political party, or coalition of political parties fielding candidates, accredited political parties, sectoral party/organization or coalition thereof participating under the party‐list system and every candidate has the right to be present and to counsel during the consolidation/canvass of the ERs or COCs: Provided, that only one (1) counsel may argue for each party or candidate. They shall have the right to observe the transmission, consolidation and canvass of the ERs or COCs without touching the CCS, make observations thereon, and file their challenges in accordance with the rules and regulations of the COMELEC. The Board shall not allow any dilatory action. 174 140. Are watchers allowed to be present during canvassing? See discussion on Watchers. 141. Who are not allowed inside the canvassing room? Key Point For BOCs: During the canvass, it shall be UNLAWFUL for the following to enter the room where the transmission, consolidation and canvass are being held or to stay within a radius of fifty (50) meters from such room: � � � � � � Any officer or member of the Armed Forces of the Philippines; Any officer or member of the Philippine National Police; Any peace officer or any armed or unarmed persons belonging to an extra‐legal police agency, special forces, strike forces, or civilian armed forces geographical units; Any barangay tanod or any member of barangay self‐defense units; Any member of the security or police organizations of government agencies, COMELECs, councils, bureaus, offices, instrumentalities, or government‐owned or controlled corporations or their subsidiaries; or Any member of a privately owned or operated security, investigative, protective or intelligence agency performing identical or similar functions. 175 174 175 COMELEC Resolution No. 8809 (30 March 2010), Section 19; See also Republic Act No. 6646 (1988), Section 25. COMELEC Resolution No. 8809 (30 March 2010), Section 21; See also Batas Pambansa Blg. 881 (1985), Section 232. AES 2010 HANDBOOK Page 59 142. Is there an exception to this prohibition? Yes. The BOC may, whenever necessary, by majority vote direct in writing for the detail of policemen or peace officers for their protection or for the protection of the machines, election documents and paraphernalia, or for the maintenance of peace and order, in which case said policemen or peace officers, who shall be in proper uniform, shall stay outside the room but near enough to be easily called by the Board at any time. 176 143. What is the consequence of the refusal of any person to obey any lawful order of the BOC or of disorderly conduct in a manner as to disturb or interrupt the proceedings of the BOC? The BOC may order, in writing, any peace officer/ soldier to take such person in custody until the adjournment of the meeting. In the absence of any peace officer, any other competent and able person deputized by the Board in writing, may execute such order. The BOC shall have full authority to keep order within the canvassing room or hall, and its premises and enforce obedience to its lawful orders. 177 D. The COCs – Effect and their distribution 144. What will be considered as official election results and which shall be used as the basis for proclamation? The COCs transmitted electronically and digitally signed 178 shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate. 179 The COCs shall be supported by Statement of Votes (SOVs). 145. What is an SOV? The SOV, which is a tabulation per precinct of the votes garnered by the candidates as reflected in the ERs, forms the basis of the COC and of the proclamation. 176 177 COMELEC Resolution No. 8809 (30 March 2010), Section 21; See also Batas Pambansa Blg. 881 (1985), Section 232. COMELEC Resolution No. 8809 (30 March 2010), Section 18; See also Republic Act No. 6646 (1988), Section 24. See discussion on authenticity and due execution, infra. 179 Republic Act No. 8436 (1997), Section 25, as amended by Republic Act No. 9369 (2007), Section 20. 178 AES 2010 HANDBOOK Page 60 146. What is the importance of the SOV? Any error in the SOV ultimately affects the validity of the proclamation. If a candidate’s proclamation is based on a SOV which contains erroneous entries, it is null and void. It is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to annul the proclamation. 180 147. Who shall have the responsibility of receiving and safekeeping of the main memory card and of the hardcopies of ERs? The BOC may constitute a Reception and Custody Group (RCG) for the reception and safekeeping of main memory card and of the hardcopies of ERs, at the rate of one (1) RCG for every five hundred (500) clustered precincts in the city/municipality/district or one (1) RCG for each province for the reception and safekeeping of the hardcopies of COCs and SOVs. For this purpose, the Election Officer or the Provincial Election Supervisor shall provide the RCG with the Project of Precincts of the city/municipality/district or the list of municipalities/cities in the province, as the case may be. 181 148. What is the composition of the RCG? The RCG is a 2‐member group, composed of government appointive officials. They shall be designated by the concerned chairman of the Board and shall receive honoraria computed as that of the members of the Board. 182 149. Who are disqualified from being RCG members? The following are disqualified from being RCG members: a. casual employees or employees of the Offices of the Provincial Governor, or City/Municipal Mayor, or Punong Barangay, or the corresponding Sanggunians be appointed/designated as a member of the RCG; and b. those related to each other or to any BOC member or to any candidate whose votes will be canvassed by the BOC, within the fourth civil degree of consanguinity or affinity. 183 180 181 Flauta v. COMELEC, G.R. No. 184586, 22 July 2009. COMELEC Resolution No. 8809 (30 March 2010), Section 22. COMELEC Resolution No. 8809 (30 March 2010), Section 22. 183 COMELEC Resolution No. 8809 (30 March 2010), Section 22. 182 AES 2010 HANDBOOK Page 61 150. What are the duties and responsibilities of the RCG? The RCG shall: 184 a) Receive from: 1) The BEI, the envelope containing the main memory card of PCOS labelled “TRANSMITTED” or “NOT TRANSMITTED, and the envelopes containing the printed copies of the ERs intended for city/municipal BOC (C/MBOC); 2) The C/MBOC, the envelope containing the CD of the municipal/city CCS labelled “TRANSMITTED” or “NOT TRANSMITTED”, and the envelope containing the printed copy of the COC intended for the PBOC; b) Log the date and time of receipt, the condition and serial numbers of each envelope and its corresponding paper seal, the precinct number, and the city/municipality/district of the ERs/COCs ; c) Mark: 1) In the project of precincts the corresponding precincts which envelope containing the main memory card labelled “NOT TRANSMITTED”; 2) In the list of cities/municipalities the corresponding city/municipality which envelope containing the CD of the CCS labelled “NOT TRANSMITTED”; d) Log the following: 1) date and time of receipt; 2) condition and the serial number of corresponding paper seal of the envelope: 3) The precinct number of the envelope containing the memory card; 4) The city/municipality of the envelope containing the CD; e) Immediately submit to the Board after recording the necessary data the envelope containing the main memory card/CD labelled “NOT TRANSMITTED”; f) Log the date and time of receipt, the condition and serial numbers of each envelope and its corresponding paper seal, the precinct number, and the city/municipality/district of the ERs/COCs ; 184 COMELEC Resolution No. 8809 (30 March 2010), Section 23. AES 2010 HANDBOOK Page 62 g) Place the envelopes containing the ERs/COCs inside the ballot box, close and lock the same with padlocks; and h) Forward to the Board, the ballot boxes containing the ERs/ COCs and one copy of the list of precincts/ list of cities/municipalities/districts as marked. i) Follow steps b to d of this section for the envelopes containing memory card/CD labelled “TRANSMITTED” and thereafter, submit to the Board. 151. How many copies of the COCPs and SOVs shall be produced and how are the copies to be distributed? The Board shall generate and print sufficient copies of the COCP and SOV to be distributed as follows: 185 BOC Concerned MBOC/CBOC Details of Distribution 1. Election Records and Statistics Department (ERSD of the COMELEC; 2. For posting; 3. Chairman, MBOC/CBOC; 4. Secretary, Sangguniang Bayan/Panlungsod; 5. Municipal Treasurer; 6. Winning Candidate for Mayor; Winning Candidate for Vice‐Mayor; and 7. Winning Candidates for members of the Sangguniang Bayan/Panlungsod; The copies of the COCP for 1, 2, 3, 4, and 5 shall be supported by a Statement of Votes by precinct containing the total number of votes obtained by each candidate in each precinct and the grand total they obtained in the entire municipality/city/district. Said documents shall be signed and thumb marked by the chairman and members of the MBOC/CBOC. Copies 1, 3, 4 and 5 shall be individually folded from top to bottom, sealed with serially numbered paper seals (CEF No. 12) and placed inside their corresponding envelopes, which shall likewise be sealed with serially numbered paper seals. The USB Key used to back‐up the election return/precinct consolidated results will be placed inside an envelope, duly sealed, and submitted to the PBOC. CBOC in cities compromising one or 1. For winning candidate for Congressman/Member of House of Representatives: 185 COMELEC Resolution No. 8809 (30 March 2010), Section 29. AES 2010 HANDBOOK Page 63 more legislative districts/ highly urbanized cities 1.1. To the COMELEC in Manila; 1.2. For posting on the bulletin board of the city hall; 1.3. To kept by the Chairman of the Board; 1.4. To the Regional Election Director; 1.5. To the Secretary‐General of the House of Representatives; and 1.6. To the winning candidates. The first copy shall be and placed in the corresponding envelope, together with a copy of the Statement of Votes by precinct. The second copy shall be posted on the bulletin board of the city hall. 2. For Winning Candidates for City Offices 2.1. Secretary of the Sangguniang Panlungsod; 2.2. Chairman, CBOC; 2.3. COMELEC; 2.4. City Treasurer; 2.5. Regional Election Director; 2.6. Each of the winning candidates proclaimed; and 2.7. One copy for posting on the bulletin board of the city hall. The first five (5) copies shall be separately folded and placed in their corresponding envelopes. A copy of the Statement of Votes by precinct shall be attached to the copies for the Secretary of the Sangguniang Panlungsod, Chairman of the CBOC, and the COMELEC. PBOC 1. To the ERSD; 2. To the Chairman of the PBOC; 3. To the Secretary of the Sangguniang Panlalawigan; 4. To the Regional Election Director; and 5. To each of the winning candidates. The Certificate of Canvass and Proclamation (COCP) shall be signed and thumbmarked by the chairman and members of the PBOC, and the watchers, if available. The PBOC shall also print three (3) copies of the supporting Statement of Votes by City/Municipal, and shall be attached to copies (1), (2) and (3) of the Certificate of Canvass and Proclamation. Copies (1), (2), (3) and (4) shall then be individually folded from top to bottom, sealed with paper seals such that the certificates cannot be opened without breaking the seal, and placed inside their respective envelopes which shall likewise be sealed with paper seals. AES 2010 HANDBOOK Page 64 152. May the COMELEC do an unofficial quick count separate from its designated citizen’s arm? No. The official and unofficial canvass, both to be administered by the COMELEC, would most likely not tally. In the past elections, the "unofficial" quick count conducted by the NAMFREL had never tallied with that of the official count of the COMELEC, giving rise to allegations of "trending" and confusion. With a second "unofficial" count to be conducted by the official election body, the COMELEC, in addition to its official count, allegations of "trending," would most certainly be aggravated. As a consequence, the electoral process would be undermined. As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the NAMFREL "quick" count, an illegal and unnecessary waste of government funds and effort. 186 153. May independent candidates and other registered parties be entitled to a copy of the COCs? Yes. It shall be the duty of the citizens' arm designated by the COMELEC to conduct an unofficial count to furnish independent candidates copies of the COC at the expense of the requesting party. 187 The BOC shall also furnish all other registered parties copies of the COC at the expense of the requesting party. 188 Any of the recipients of the print or digital copies of the COC and the supporting SOVs may conduct an unofficial consolidation of votes and may announce the result thereof to the public. 189 154. What is the duty of the BOC in relation to manner of posting the COCs? a. Immediately after the sixth copy of the COCs and its supporting SOVs are printed, the BOC Chairman shall announce the posting of said prints on a wall within the premises of the canvassing center, which must be sufficiently lighted and accessible to the public. Any person may view or capture an image of the COC or the supporting SOV by means of any data capturing device such as, but not limited to, cameras at any time of the day for forty‐eight (48) hours following the posting. b. After such period, the BOC Chairman shall detach the ER from the wall and keep the same in his custody to be produced as may be requested by any voter for 186 187 Sixto S. Brillantes, Jr., et al. v. COMELEC, G.R. No. 163193, 15 June 2004. Republic Act No. 8436 (1997), Section 26, as amended by Republic Act No. 9369 (2007), Section 21. Republic Act No. 8436 (1997), Section 26, as amended by Republic Act No. 9369 (2007), Section 21. 189 Republic Act No. 7166 (1991), Section 28, as amended by Republic Act No. 9369 (2007), Section 39. 188 AES 2010 HANDBOOK Page 65 image or data capturing or for any lawful purpose as may be ordered by competent authority. 190 c. The COMELEC shall also post its digital files in its website for the public to view or download at any time of the day. The COMELEC shall maintain the files for at least three years from the date of posting. 191 155. What procedures are to be taken by the Boards after canvassing? The Chairman of the Boards shall personally deliver by fastest means the hard copies of COCs and SOVs including the back‐up CDs to the following: BOC MBOC/CBOC PBOC Recipient What Copy of COC for: � President and Vice‐ President, � Senator, � Party‐List, � Member, House of Representatives, � Governor, Vice‐Governor and Sangguniang Panlalawigan PBOC, CBOC in cities comprising two or more legislative districts, and DBOC : Congress sitting as the National BOC Copy of COC for the President and Vice‐ President; and COMELEC sitting as the National BOC for Senator and Party‐List 192 190 191 Republic Act No. 8436 (1997), Section 26, as amended by Republic Act No. 9369 (2007), Section 21. Republic Act No. 7166 (1991), Section 29, as amended by Republic Act No. 9369 (2007), Section 40. 192 COMELEC Resolution No. 8809 (30 March 2010), Section 30. AES 2010 HANDBOOK Page 66 156. How do BOCs safeguard hard copies of ERs or COCs, back‐up CDs and CCS? The BOCs shall place the ERs/COCs in ballot boxes that shall be locked with three padlocks and one serially numbered self‐locking seal. The BOC members shall each keep a key to the three (3) padlocks. The serial number of every seal used shall be entered in the Minutes. The ballot boxes shall be kept in a safe and secured room before, during and after the canvass. The door to the room shall be locked with three padlocks with the keys thereof kept by each member of the Board. The watchers shall have the right to guard the room. 193 157. In addition to offenses already defined under the Omnibus Election Code, what are the acts considered as election offenses relative to canvassing? The following shall be guilty of an election offense: ELECTION OFFENSE The following acts relative to canvassing shall constitute election offense 194: � Removing the COC posted on the wall, whether within or after the prescribed forty‐eight (48) hours of posting � Defaces the COC in any manner � Simulating an actual or copies (print or digital) of COC or SOV � Simulating the certification of a COC or SOV � Removing the COC or its supporting SOV from the wall for any purpose other than immediately transferring them to a more suitable place � Signing or authenticating a print of the COC or its supporting SOV outside of the polling place � Signing or authenticating a print which bears an image different from the COC or SOV produced after counting and posted on the wall � Tampering, increasing, or decreasing the votes received by a candidate � Refusing, after proper verification and hearing, to credit the correct votes or deduct such tampered votes Note: Large scale or substantial tampering, increase or decrease of votes or the refusal to credit the correct votes and/or to deduct tampered votes shall be considered a SPECIAL election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment. 193 194 COMELEC Resolution No. 8809 (30 March 2010), Section 31. COMELEC Resolution No. 8809 (30 March 2010), Section 32. AES 2010 HANDBOOK Page 67 158. What is the manner of authenticating Electronically Transmitted Election Results? COMELEC shall authenticate the COCs on a showing that: a. Each COC was executed, signed and thumbmarked by the BOC chairman and members and transmitted or caused to be transmitted by them; b. Each COC contains the names of all of the candidates for President and Vice‐ President or senator, as the case may be, and their corresponding votes in words and in figures; c. There exists no discrepancy in other authentic copies of the COC or in any of its supporting documents such as the SOV by city/municipality by precinct or discrepancy in the votes of any candidate in words and figures in the certificate; 195 and d. There exists no discrepancy in the votes of any candidate in words and figures in the COCs against the aggregate number of votes appearing in the ERs of precincts covered by the COCs: Provided, That certified print copies of ERs or COCs may be used for the purpose of verifying the existence of the discrepancy. 196 e. The process of authentication may be supplemented, where applicable, by appropriate authentication and certification procedures for electronic data, electronic documents and electronic signatures as provided in Republic Act No. 8792, or the Electronic Commerce Act, 197 as well as the rules promulgated by 195 Aquilino L. Pimentel III v. COMELEC, et al., G.R. No. 178413, 13 March 2008. Republic Act No. 7166 (1991), Section 30, as amended by Republic Act No. 9369 (2007), Section 30; See also Aquilino L. Pimentel III v. COMELEC, et al. , G.R. No. 178413, 13 March 2008. 197 Republic Act No. 8792 (2000), Section 11 states: 196 “Section 11. Authentication of Electronic Data Messages and Electronic Documents.‐ Until the Supreme Court by appropriate rules shall have so provided, electronic documents, electronic data messages and electronic signatures, shall be authenticated by demonstrating, substantiating and validating a claimed identity of a user, device, or another entity is an information or communication system, among other ways, as follows; (a) The electronic signatures shall be authenticated by proof than a letter , character, number or other symbol in electronic form representing the persons named in and attached to or logically associated with an electronic data message, electronic document, or that the appropriate methodology or security procedures, when applicable, were employed or adopted by such person, with the intention of authenticating or approving in an electronic data message or electronic document; (b) The electronic data message or electronic document shall be authenticated by proof that an appropriate security procedure, when applicable was adopted and employed for the purpose of verifying the originator of an electronic data message or electronic document, or detecting error or alteration in the communication, content or storage of an electronic document or electronic data message from a specific point, which, using algorithms or codes, identifying words or numbers, encryptions, answers back or acknowledgement procedures, or similar security devices. The Supreme Court may adopt such other authentication procedures, including the use of electronic notarization systems as necessary and advisable, as well as the certificate of authentication on printed or hard copies of the electronic documents or electronic data messages by electronic notaries, service providers and other duly recognized or appointed certification authorities. The person seeking to introduce an electronic data message or electronic document in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message or electronic document is what the person claims it to be. AES 2010 HANDBOOK Page 68 the Supreme Court pursuant thereto, or A.M. NO. 01‐7‐01‐SC.‐ Re: Rules On Electronic Evidence. 198 E. Remedies 159. What issues may be raised during the consolidation/canvass? Issues affecting the composition or proceedings of the Boards may be initiated by filing a verified petition before the BOC or directly with the COMELEC. If the petition is filed directly with the Board, its decision may be appealed to the COMELEC within three (3) days from issuance thereof. However, if commenced directly with the COMELEC, the verified petition shall be filed immediately when the board begins to act illegally, or at the time of the appointment of the member of the board whose capacity to sit as such is objected to. 199 160. What issues may no longer be raised during the consolidation/canvass? There shall be no pre‐proclamation cases on issues/controversies relating to the generation/printing, transmission, receipt and custody and appreciation of ERs or the COCs. In the absence of evidence to the contrary, the integrity of the information and communication system in which an electronic data message or electronic document is recorded or stored may be established in any legal proceeding – a.) By evidence that at all material times the information and communication system or other similar device was operating in a manner that did not affect the integrity of the electronic data message or electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system, b.) By showing that the electronic data message or electronic document was recorded or stored by a party to the proceedings who is adverse in interest to the party using it; or c.) By showing that the electronic data message or 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 the record. 198 Republic Act No. 8436 (1997), Section 30, as amended by Republic Act No. 9369 (2007), Section 25; A.M. NO. 01‐7‐01‐SC, Rule 5, Sec. 2 states: “SEC. 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. 199 COMELEC Resolution No. 8809 (30 March 2010), Section 24. AES 2010 HANDBOOK Page 69 161. What happens if the COCs, duly certified by the BOC of each province, city of district, appears to be incomplete? The Senate President or COMELEC Chairman shall require the BOC concerned to transmit by personal delivery, the ERs from polling places that were not included in the COC and supporting statements. Said ERs shall be submitted by personal delivery within two (2) days from receipt of notice. 200 162. What if any COC or supporting SOV by city/ municipality or by precinct bears erasures or alterations? When it appears that any COC or supporting SOV by city/ municipality or by precinct bears erasures or alterations, which may cast doubt as to the veracity of the number of votes stated herein and may affect the result of the election, upon request of the presidential, vice‐presidential or senatorial candidate concerned or his party, Congress or COMELEC en banc, as the case may be, shall, for the sole purpose of verifying the actual number of votes cast for President and Vice‐President or senator, count the votes as they appear in the copies of the ERs submitted to it. 201 163. Do formal defects alone on the ERs in their preparation and delivery for canvassing justify their exclusion? No. While formal defects may involve a violation of the rules governing the preparation and delivery of ERs for canvassing, they do not necessarily affect the authenticity and genuineness of the subject ERs as to warrant their exclusion from the canvassing. 202 As long as the ERs which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such ERs cannot just be unjustifiably excluded. 203 164. What are considered formal defects? Formal defects include: a. b. c. d. 200 201 failure to close the entries with the signatures of the election inspectors lack of inner and outer paper seals canvassing by the BOC of copies not intended for it lack of time and date of receipt by the BOC of Ers Republic Act No. 7166 (1991), Section 30, as amended by Republic Act No. 9369 (2007), Section 37. Republic Act No. 7166 (1991), Section 30, as amended by Republic Act No. 9369 (2007), Section 37. Ocampo v. COMELEC, G.R. No. 137470, 15 February 2000. 203 Ocampo v. COMELEC, G.R. No. 137470, 15 February 2000. 202 AES 2010 HANDBOOK Page 70 e. lack of signatures of petitioners' watchers; and lack of authority of the person receiving the ERs. 165. Is there an exception to the rule that ERs which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice cannot just be unjustifiably excluded? Yes. If the COMELEC, in the exercise of its duties under the Election Code, can require BOCs to consider only genuine and authentic, not falsified, ERs, it can logically require such BOCs to exclude from the canvass ERs that were actually the product of coercion, even if they be clean in their face. An ER prepared at the point of a gun is no ER at all; it is not one notch above a falsified or spurious ER. 204 166. When is a manual counting of votes warranted? ‘ RANDOM MANUAL AUDIT Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the COMELEC in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error. 205 167. Are there other instances where a manual count may be resorted to? Yes. The COMELEC is not precluded from conducting a manual count when the automated counting system fails. For example, where the error in counting is not machine related or where a manual count is reasonable, as it was the only way to count the decisive local votes. 206 The Constitution gives the COMELEC the broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." 207 In another instance, where the counting machine assigned to the municipality a did not reflect the true results of the voting, i.e. the votes were not reflected in the printout of 204 205 Rufino S. Antonio, Jr. v. COMELEC, G.R. No. L‐31604, April 1970; See also Pacis v. Comelec, G.R. No. L‐29026, 28 September 1968. Republic Act No. 8436 (1997), Section 29, as amended by Republic Act No. 9369 (2007), Section 24. Maruhom v. COMELEC, et al., G.R. No. 139357, 5 May 2000. 207 The 1987 Philippine Constitution, Article IX (C), Section 2(1). 206 AES 2010 HANDBOOK Page 71 the ERs since per ERs of their precincts, the candidate voted for obtained "zero", and after a verification of the printout of some ERs as against the official ballots, it was discovered that votes cast in favor of a mayoralty candidate were credited in favor of the opponents, a manual count of the votes was allowed. 208 168. When is there a failure of election? FAILURE OF ELECTION A failure of election may be declared in the following instances: � If on account of force majeure, terrorism, fraud, or other analogous causes, the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or After the voting and during the preparation and the transmission of the ERs or in the custody or canvass thereof, such election results in a failure to elect, and Any of such cases the failure or suspension of election would affect the result of the election. 209 � � 169. What does not constitute failure of elections? The existence of factors such as lack of notice of the date and time of canvass; fraud, violence, terrorism and analogous causes; disenfranchisement of voters; presence of flying voters; and unqualified BEI members do not necessarily constitute a failure of election. These grounds are proper only in an election contest but not in a petition to declare a failure of election and to nullify a proclamation. COMELEC can call for the holding or continuation of election by reason of failure of election only when the election is not held, is suspended or results in a failure to elect. The latter phrase, in turn, must be understood in its literal sense, which is "nobody was elected." 210 208 Loong v. COMELEC, G.R. No. 133676, 14 April 1999. Batas Pambansa Blg. 881 (1985), Section 6. 210 Borja v. COMELEC, G.R. No. 120140, 21 August 1996. 209 AES 2010 HANDBOOK Page 72 170. What may be done in instances where there is a failure of election? An interested party may file a verified petition. After due notice and hearing, COMELEC may call for the holding or continuation of the election, not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect. 211 171. Who has the power to declare a failure of election? The COMELEC sitting en banc, by a majority vote of its members, may decide the declaration of failure of election and the calling of special election. 212 172. What are the jurisdictional facts that must be alleged in a petition for declaration of failure of election? Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely: a. no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and b. the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. 213 173. What is the consequence of a declaration of failure of election? The COMELEC sitting en banc may call a special election. 214 174. What can an interested party do to contest ERs and matters relating to the preparation, transmission, receipt, custody and appreciation of the ERs, and the COCs? Questions affecting the preparation, transmission, receipt, custody and appreciation of the ERs, and the COCs shall be brought in the first instance before the BOC only 215, in accordance to the following procedure 216: 211 Batas Pambansa Blg. 881 (1985), Section 6. Batas Pambansa Blg. 881 (1985), Section 6; Republic Act No. 7166 (1991), Section 4. 213 Banaga v. COMELEC, GR No. 134696, July 31, 2000. 214 Republic Act No. 7166 (1991), Section 4. 215 Republic Act No. 7166 (1991), Section 17; See also Aquilino L. Pimentel III v. COMELEC, et al., G.R. No. 178413, 13 March 2008. 216 Republic Act No. 7166 (1991), Section 20. 212 AES 2010 HANDBOOK Page 73 a. Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any ERs on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of BP Blg. 881 shall submit their oral objection to the BOC Chairman at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass. b. Upon receipts of any such objection, the BOC shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party. c. Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the COMELEC. Within twenty‐four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty‐four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the COMELEC, attaching thereto supporting evidence, if any. The BOC shall not entertain any objection or opposition unless reduced to writing in the prescribed forms. The evidence attached to the objection or opposition, submitted by the parties, shall be immediately and formally admitted into the records of the BOC by the chairman affixing his signature at the back of each every page thereof. d. Upon receipt of the evidence, the BOC shall keep up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rules thereon. The BOC shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members. e. Any part adversely affected by the ruling of the BOC shall immediately inform the BOC if he intends to appeal said ruling. The BOC shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns. f. After all the uncontested returns have been canvassed and the contested return ruled upon by it, the BOC shall suspend the canvass. Within forty‐eight (48) hours, therefrom, any party adversely affected by the ruling may file with the BOC a written and verified notice of appeal; and within an inextendible period of five (5) days thereafter an appeal may be taken to the COMELEC. g. Immediately upon receipt of the notice of appeal, the BOC shall make an appropriate report to the COMELEC, elevating therewith the complete records AES 2010 HANDBOOK Page 74 and evidence submitted in the canvass, and furnishing the parties with copies of the report. h. On the basis of the record and evidence elevate to it by the BOC, the COMELEC shall decide summarily the appeal within seven (7) days from receipt of said record and evidence. Any appeal brought before the COMELEC on the ruling of the BOC, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed. i. The decision of the COMELEC shall be executory after the lapse of seven (7) days from receipts thereof by the losing party. The BOC shall not proclaim any candidate as winner unless authorized by the COMELEC after the latter has ruled on the object brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. j. k. Any objection on the ERs before the city or MBOC, or on the municipal COCs before the PBOC or district BOC in Metro Manila Area, shall be specifically noticed in the minutes of their respective proceedings." 217 175. What can an interested party do to contest matters affecting the BOC composition or proceedings? Questions affecting the composition or proceedings of the BOC may be initiated in the BOC or directly with the COMELEC. 218 Parties adversely affected by a ruling of the BOC on questions affecting the composition or proceedings of the BOC may appeal the matter to the COMELEC within three (3) days from a ruling thereon. The COMELEC shall summarily decided the case within five (5) days from the filing thereof. 219 176. What is the consequence if a person presents in evidence a simulated copy of an ER, COC or SOV, or a printed copy of an ER, COC or SOV bearing a simulated certification or a simulated image? Any person who presents in evidence a simulated copy of an ER, COC or SOV, or a printed copy of an ER, COC or SOV bearing a simulated certification or a simulated 217 Republic Act No. 7166 (1991), Section 15, as amended by Republic Act No. 9369 (2007), Section 38. Republic Act No. 7166 (1991), Section 15, as amended by Republic Act No. 9369 (2007), Section 38. 219 Republic Act No. 7166 (1991), Section 19. 218 AES 2010 HANDBOOK Page 75 image, shall be guilty of an election offense and shall be penalized in accordance with the Omnibus Election Code. 220 See also section on Electoral Sabotage. 177. May interested parties bring the question of whether or not there had been terrorism, vote buying and other irregularities in the election before the BOC or the COMELEC in a pre‐proclamation case? No. The powers of the COMELEC are essentially executive and administrative in nature, and the question of whether or not there had been terrorism, vote buying and other irregularities, such as in the appreciation of ballots, in the election should be ventilated in a regular election protest or election contest and not via a pre‐ proclamation case. The BOC is a ministerial body. It is enjoined by law to canvass all votes on ERs submitted to it in due form. Its powers are "limited generally to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained.” 221 Neither Constitution nor statute has granted the COMELEC or the BOCs the power, in the canvass of ERs, to look beyond the face thereof, once satisfied of their authenticity. 222 220 221 Republic Act No. 7166 (1991), Section 30, as amended by Republic Act No. 9369 (2007), Section 37. Abes v. COMELEC, G.R. No. L‐28348, 15 December 1967; See also Sanchez v. COMELEC, G.R. No. L‐78461, 12 August 1987. 222 Abes v. COMELEC, G.R. No. L‐28348, 15 December 1967; See also Sanchez v. COMELEC, G.R. No. L‐78461, 12 August 1987. AES 2010 HANDBOOK Page 76 X. PRE‐PROCLAMATION CONTROVERSIES 178. What are pre‐proclamation controversies? Pre‐proclamation controversies refer to any question about the composition and proceedings of the BOC. 223 After proclamation, the controversy becomes an election contest. 179. Does a pending pre‐proclamation case suspend proclamation? A pending pre‐proclamation case only suspends the proclamation of a winning candidate if he will not be affected by the outcome of the pre‐proclamation case. The COMELEC may order the proclamation of the winning candidate as long as he will not be affected by the pending pre‐proclamation case. 180. What issues may be raised in a pre‐proclamation case? The following shall be proper issues that may be raised in a pre‐proclamation case 224: a. b. c. d. e. f. Illegal composition or proceedings of the BOC (BOC) 225, Illegal proceedings of the BOC 226, The canvassed ER contain discrepancies in the same returns or in other authentic copies 227 When the ER are delayed, lost or destroyed 228 The ER were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and 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. Batas Pambansa Blg. 881 (1985), Section 241, See also COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 6. COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 3, Section 1, which eliminates the following grounds under Batas Pambansa Blg. 881 (1985), when the Resolution clearly stated that the basis of the canvass shall be electronically transmitted results, and not the Printed Election Returns: a. The canvassed ER are incomplete, b. The canvassed ER contain material defects, c. The canvassed ER appears to be tampered with or falsified. 225 Batas Pambansa Blg. 881 (1985), Section 243, COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 3, Section 1. 226 Batas Pambansa Blg. 881 (1985), Section 243, COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 3, Section 1. 227 Batas Pambansa Blg. 881 (1985), Section 243. 228 Batas Pambansa Blg. 881 (1985), Section233. 224 223 AES 2010 HANDBOOK Page 77 181. What issues are explicitly prohibited to be raised in a pre‐proclamation case under the AES? There shall be no pre‐proclamation cases on issues/controversies relating to the generation/printing, transmission, receipt and custody and appreciation of ERs or the COCs. 229 182. May other grounds be subject of a pre‐proclamation case? No. Under the AES, only the composition and proceedings of the BOC may be raised in a pre‐proclamation controversy. The scope of pre‐proclamation controversy is limited to the issues enumerated under the COMELEC’s General Instructions, and under Sections 233 and 243 of the Omnibus Election Code. The enumeration therein of the issues that may be raised in a pre‐proclamation controversy is restrictive and exclusive. 230 183. When is there an illegal composition of the BOC? There is illegal composition of the BOC when, among other similar circumstances, any of the members do not possess legal qualifications and appointments. 231 (See BOC Composition Table) 184. Will the CCS Operator’s qualifications be included in the consideration of an illegal composition of the BOC? The information technology capable person required to assist the BOC by Republic Act No. 9369 shall be included as among those whose lack of qualifications may be questioned.232 185. When is there an illegal proceeding of the BOC? There is illegal proceeding of the BOC when the canvassing is a sham or mere ceremony, the results of which are pre‐determined and manipulated. 233 229 230 COMELEC Resolution No. 8809 (30 March 2010), Section 24. Ututalum vs. COMELEC, G.R. No. 84843‐44,22 January 1990, citing Bautista vs. COMELEC, G. R. No. 78994, 10 March 1988. 231 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4. 232 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 1. 233 COMELEC Resolution No. 8804 (March 22, 2010), Part II, Rule 4, Section 2. AES 2010 HANDBOOK Page 78 186. What are considered evidence of an illegal proceeding of the BOC? Any of the following circumstances indicate an illegal proceeding of the BOC 234: g. h. i. j. hurried canvassing; terrorism; lack of sufficient notice to the members of the BOC's; Improper venue 187. May challenges against proceedings of the BEI be subject of pre‐proclamation case? NO. Pre‐proclamation cases are limited to challenges directed against the BOC, not the Board of Election Inspectors. 235 188. May a padded voter’s list be subject of a pre‐proclamation case? No, a padded voters' list is clearly not among the issues that may be raised in a pre‐ proclamation controversy. It is a proper ground for an election protest. 236 189. Who may raise a pre‐proclamation controversy? A pre‐proclamation controversy may be raised by the candidate or by any registered political party or coalition of political parties, or by any accredited and participating party list group. 237 190. What are the rights of political parties and candidates before the BOC in pre‐ proclamation cases? � � � The right to be present, The right to be represented by counsel during the canvass of election returns, or certificates of canvass. The right to obtain a copy of the SOV per precinct and a copy of the COC duly authenticated by the BOC. 234 235 COMELEC Resolution No. 8804 (March 22, 2010). Part II, Rule 4, Section 2. Ututalum vs. COMELEC, G.R. No. 84843‐44, 22 January 1990. 236 Espaldon vs. COMELEC, L‐78987, 25 August 1987. 237 Batas Pambansa Blg. 881 (1985), Section 241, as amended by COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 3, Section 1. AES 2010 HANDBOOK Page 79 191. What are the limitations to these rights? Only one counsel may argue for each registered political party, organization, or coalition of political parties, accredited citizens' arm or candidate. No dilatory action shall be allowed by the BOC. It may impose time limits for oral arguments. 192. How are pre‐proclamation cases initiated? Pre‐proclamation cases may be initiated in the BOC or directly with the COMELEC, with a verified petition, clearly stating the specific ground/s for the illegality of the composition and/or proceedings of the board.238 193. When must a petition for a pre‐proclamation case be filed? Petitions for a pre‐proclamation case must be filed immediately: a. For illegal Composition 239: i. When the unqualified BOC member is appointed prior to canvassing, upon exercise of his/her powers and duties as a BOC member ii. When the unqualified BOC member is appointed comes after the canvassing of the Board, at the time of appointment For illegal proceedings: When the proceedings become illegal 240. b. 238 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 3. COMELEC Resolution No. 8804 (22 March, 2010), Part II, Rule 4, Section 4. 240 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 4. 239 AES 2010 HANDBOOK Page 80 194. What are the procedures in initiating and resolving pre‐proclamation cases? If filed directly with the BOC 241 Petitioner Board of Canvassers (BOC) BOC announces filing and grounds raised COMELEC Submit Petition BOC deliberates on the Petition BOC issues a written resolution Petitioner notifies BOC of intent to appeal within 3 days NO BOC in favor of the Petition? YES BOC informs COMELEC COMELEC makes the appropriate action Petitioner submits Memorandu m on Appeal BOC forwards the entire records to COMELEC COMELEC clerk will docket Petition within 48 hours COMELEC en banc renders decision on appeal Figure 23: Preproclamation Cases Filed Directly with BOC 241 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 5 (a). AES 2010 HANDBOOK Page 81 If filed directly with the COMELEC: 242 Submit Petition COMELEC clerk will docket Petition BOC files an answer within 48 hours COMELEC clerk sends summons to BOC COMELEC en banc resolves the Petition within 5 days Figure 24: Preproclamation Cases Filed Directly with COMELEC 195. What are the procedures in filing pre‐proclamation cases if the illegality of the proceedings of the BOC is discovered after the official proclamation of the supposed results? Petitioner Submit Board of Canvassers (BOC) COMELEC COMELEC clerk will BOC files an answer COMELEC clerk sends summons to BOC COMELEC en banc resolves the Figure 25: Procedure if illegality of BOC proceedings is discovered after proclamation 242 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 5 (b). AES 2010 HANDBOOK Page 82 196. Will the receipt by the BOC of the electronically transmitted precinct, municipal, city, or provincial results, be suspended by the filing of said petition? NO, in no case shall the receipt by the BOC of the electronically transmitted precinct, municipal, city, or provincial results, be suspended by the filing of said petition. 243 197. Will the formal proclamation of the official results of the election be suspended by filing the Notice of Appeal on the BOC? No, the notice on the BOC shall not suspend the formal proclamation of the official results of the election, until the final resolution of the appeal. 244 198. Can an affidavit serve as evidence for a pre‐proclamation controversy? No, mere affidavits cannot be relied on as evidence that will substantiate the objections. 245 199. Who hears and decides pre‐proclamation cases? Pre‐proclamation cases are heard and decided by the COMELEC 246. However candidates in the presidential, vice‐presidential, senatorial and congressional elections are prohibited from filing pre‐proclamation cases. 247 200. When can candidates in the presidential, vice‐presidential, senatorial and congressional elections file pre‐proclamation cases? Pre‐proclamation cases for the presidential, vice‐presidential, senatorial and congressional elections are allowed in the following circumstances: 248 a. b. c. Correction of manifest errors; Questions affecting the composition or proceedings of the BOC; 249 and Determination of the authenticity and due execution of certificates of canvass 243 COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 5 (a) (4). COMELEC Resolution No. 8804 (22 March 2010), Part II, Rule 4, Section 5 (a) (5). 245 Cordero vs. COMELEC, G.R. No. 134826, 6 July 1999. 246 Batas Pambansa Blg. 881 (1985), Section 242. 247 Republic Act No. 7166 (1991), Section 15. 248 Pimentel vs. COMELEC, G.R. No. 178413, 13 March 2008. 249 Republic Act No. 7166 (1991), Section 15, Republic Act No. 7166 (1991), as amended by Republic Act No. 9369 (2007), Section 38. 244 AES 2010 HANDBOOK Page 83 201. How is a pre‐proclamation case considered for judgment? Upon receipt of the evidence, the BOC shall take up the controversy, consider the written objections and oppositions, and immediately rule on the petition by a majority vote. There must be notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling 250 202. May the COMELEC rule on the petition without conducting a hearing? No, the law requires that the hearing be held before the COMELEC rules on the petition. 251 203. How does the COMELEC consider a case on appeal? The COMELEC shall decide on the case within 7 days from the receipt of records and evidence. The decision of the COMELEC shall take effect 7 days after the losing party receives a copy of the decision. 204. What are the remedies that may be afforded in a pre‐proclamation case? a. b. c. Recount of votes 252 Annulment of proclamation, when the BOC failed to issue a timely ruling 253 Termination of canvassing and proclaim the candidates elected on the basis of the available ER if the missing ER will not affect the results of the election, in case of delayed ER. 254 205. When may a recount of canvasses votes be done? A clear showing, after a hearing, that ER canvassed: 255 a. appear to have been tampered with, falsified or prepared under duress [Sec. 235] b. and/or contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election [Sec. 236] 250 251 Sandoval vs. COMELEC, G.R. No. 133842, 26 January 2000; citing Reyes vs. COMELEC, G.R. No. 52699, 15 May 1980. Sandoval vs. COMELEC, G.R. No. 133842, 26 January 2000. 252 Chavez vs. COMELEC, G.R. No. 1055323, 3 July 1992. 253 Sema vs. COMELEC, G.R. No. 134163‐64, 13 December 2000. 254 Batas Pambansa Blg. 881 (1985), Section 233. 255 Chavez vs. COMELEC, G.R. No. 1055323, 3 July 1992; citing Sanchez v. Commission on Elections, G.R. No. L‐78461, 12 August 1987. AES 2010 HANDBOOK Page 84 206. When will a proclamation be annulled based on a pre‐proclamation controversy? A proclamation may be annulled when the BOC failed to issue a timely ruling on the controversy, depriving the complainant opportunity to appeal. 256 207. Could a proclamation of a winning candidate be made while a Motion for Reconsideration is pending? Yes, the BOC need not wait for the resolution of a Motion for Reconsideration of a pre‐ proclamation controversy pending before the COMELEC 257 208. May the COMELEC annul the proclamation of a candidate based on new additional evidence presented in a pre‐proclamation controversy? No, the COMELEC cannot base the annulment of a proclamation based on new and additional evidence. To do so deprives the parties and the BOC the opportunity to refute them 258 256 257 258 Sema vs. COMELEC, G.R. No. 134163‐64, 13 December 2000. Chu vs. COMELEC, G.R. No. 135423, 29 November,1999. Velayo vs. COMELEC, G.R. No. 135613,9 March 2000. AES 2010 HANDBOOK Page 85 XI. ELECTION PROTEST and QUO WARRANTO 209. Is it still possible to contest the election even after the proclamation? Yes. There are two (2) remedies available to contest the election after proclamation – election protest and quo warranto. 210. What is an election protest? It is a procedure to contest the election or the return of an elective official. 259 211. Who can file an election protest? Any losing candidate who has duly filed a certificate of candidacy and has been voted for the same office can file a sworn petition for election protest. 260 The losing candidate who is filing an election protest against an elective regional, provincial or city official 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 SOV. 261 212. When should the petition for election protest be filed? Within ten (10) days after the proclamation of the results of the election. 262 However, the pendency of a pre‐proclamation controversy involving the validity of the proclamation shall suspend the running of the period to file an election protest. 263 213. Is there a filing fee for an election protest? Yes. Protestants or counter‐protestants are required to pay a filing fee of Php 10,000. If there are claims for damages and attorney’s fees, additional filing fees shall be required in accordance with the schedule provided for in Rule 141 of the Rules of Court. 264 259 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 6, Section 2. Batas Pambansa Blg. 881 (1985), Section 250, 251 and 252. 261 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 6, Section 2. 262 Batas Pambansa Blg. 881 (1985), Section 250, 251 and 252. 263 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 6, Section 6. 264 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 11, Section 1. 260 AES 2010 HANDBOOK Page 86 214. Aside from the filing fees, are there any other filing costs that the protestant must bear? Yes. Cash deposit is required when the protest requires (i) recount of ballots or re‐ tabulation of election returns, or (ii) bringing to the COMELEC of copies of other election documents, printed or electronic, as well as the machines or devices to which electronic election documents are stored or may be processed. The amount shall be: a. One thousand Five Hundred Pesos (Php 1,500.00) for each precinct involved in the protest or counter‐protest; provided that in no case shall the deposit be less than Php 25,000, to be paid upon the filing of the election protest/counter‐ protest; b. If the amount to be deposited does not exceed Php 100,000, the same shall be paid in full within ten (10) days after the filing of the protest; and c. If the deposit exceeds Php 100,000, a cash deposit in the amount of Php 100,000 shall be made within ten (10) days after the filing of the protest. The balance shall be paid in such installments as may be required by the COMELEC with at least five (5) days advance notice to the party required to make the deposit. Key Point for Protestant: Failure to make the cash deposits required within the prescribed time limit shall result in the automatic dismissal of the protest or counter‐protest. 265 265 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 11, Section 2. AES 2010 HANDBOOK Page 87 Position President and Vice‐President Jurisdiction Supreme Court en banc 266 ‐ Appeal Applicable Procedure 2005 Rules Presidential Tribunal of the Electoral Senators Senate Electoral (SET) 267 Tribunal ‐ Revised Rules of the Senate Electoral Tribunal dated 12 November 2003 1998 Rules of the House of Representatives Electoral Tribunal, as amended COMELEC Resolution No. 8804 [22 March 2010] and COMELEC Rules of Procedure dated 15 February 1993 Members of the House of Representatives House of Representatives Electoral Tribunal (HRET) 268 ‐ Regional, provincial and city officials COMELEC 269 ‐ Municipal officials proper Regional Trial Court (RTC) 270 COMELEC, whose decision will be final, executory and non‐appealable 271 266 267 The 1987 Philippine Constitution, Article VII, Section 4. The 1987 Philippine Constitution, Article VI, Section 17. 268 The 1987 Philippine Constitution, Article VI, Section 17. 269 The 1987 Philippine Constitution, Article IX(C), Section 2; Batas Pambansa Blg. 881 (1985), Section 249 and 250. 270 Batas Pambansa Blg. 881 (2007), Section 251. 271 The 1987 Philippine Constitution, Article VI, Section 17; Article VII, Section 4; and Article IX(C), Section 2; Republic Act No. 7166 (1991), Section 22. AES 2010 HANDBOOK Page 88 215. What are the jurisdictional facts that must be alleged in an election protest? Before the proper court or tribunal may exercise special jurisdiction in election protests, the following jurisdictional facts must be alleged in the election protest: a. That the protestant was a candidate who has duly filed a certificate of candidacy and was voted upon in the election; b. That the protestee has been proclaimed in the said election; and c. That the petition was filed within ten (10) days after the proclamation. 272 216. Is there any protective measure that can be employed to ensure the integrity of the ballots pending an election protest? Yes. Where the allegations in a protest so warrant, and simultaneously with the issuance of summons, the COMELEC shall order the municipal treasurer and election officer, and the responsible personnel and custodian to take immediate steps or measures to safeguard the integrity of all the ballot boxes, lists of votes with voting records, books of voters and other documents or paraphernalia used in the election, as well as data storage devices containing electronic data evidencing the conduct and the results of elections in the contested precincts. 273 217. When will the ballot boxes and election documents be brought to the COMELEC? Within 48 hours from receipt of the answer with counter‐protest, if any, and whenever the allegations in a protest or counter‐protest so warrant, the COMELEC shall order the ballot boxes with their keys, lists of voters with voting records, books of voters, the electronic data storage devices, and other documents, paraphernalia, or equipments relative to the precincts involved in the protest or counter‐protest, to be brought before it. 274 The recount of ballots shall commence on the date specified in the preliminary conference order. 275 218. Who can file a petition for quo warranto? Any voter can file a sworn petition for quo warranto. 276 219. When can a petition for quo warranto be filed? Within ten (10) days after the proclamation of the results of the election. 277 272 273 San Juan v. Cerilles, HRET Case No. 04‐007, 17 February 2005. COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 12, Section 1. 274 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 12, Section 2. 275 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 15, Section 1. 276 Batas Pambansa Blg. 881 (1985), Section 253. AES 2010 HANDBOOK Page 89 220. To whom should the quo waranto be filed? The jurisdiction to hear quo warranto proceedings is vested in different bodies: Position President and Vice‐President Jurisdiction Supreme Court en banc 278 ‐ Appeal Applicable Procedure 2005 Rules Presidential Tribunal of the Electoral Senators SET 279 ‐ Revised Rules of the Senate Electoral Tribunal dated 12 November 2003 1998 Rules of the House of Representatives Electoral Tribunal, as amended COMELEC Resolution No. 8804 [22 March 2010] and COMELEC Rules of Procedure dated 15 February 1993 Members of the House of Representatives Regional, provincial and city officials HRET 280 ‐ COMELEC 281 ‐ 221. Can the courts execute their judgments pending appeal? Yes. Based on the suppletory applicability of the Rules of Court, the court may, in its discretion, order execution to issue even before the expiration of the time to appeal, upon good reasons to be stated in a special order. The following constitute "good reasons," and a combination of two or more of them will suffice to grant execution pending appeal: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending. 282 277 Batas Pambansa Blg. 881 (1985), Section 253. The 1987 Philippine Constitution, Article VII, Section 4. 279 The 1987 Philippine Constitution, Article VI, Section 17. 280 The 1987 Philippine Constitution, Article VI, Section 17. 281 The 1987 Philippine Constitution, Article IX(C), Section 2; Batas Pambansa Blg. 881 (1985), Section 253. 282 Ramas et. al. v. COMELEC et. al., GR No. 130831 , 10 February 1998. 278 AES 2010 HANDBOOK Page 90 222. Is it possible to suspend or toll the running of the 10‐day period for the filing of an election protest or quo warranto? The filing of a petition to annul or to suspend the proclamation of any candidate with the COMELEC shall toll or suspend the running of the 10‐day period, respectively. 283 223. Is there a preference granted to election protests and quo warranto proceedings? YES. The courts, in their respective cases, shall give preference to election contests over all other cases, except those of habeas corpus, and shall without delay, hear and, within thirty (30) days from the date of their submission for decision, but in every case within six (6) months after filing, decide the same. 284 224. What are the differences between and election protest and a quo warranto proceeding? ELECTION CONTEST Purpose Annul the election of an elected candidate on the grounds of frauds and irregularities in the conduct of election and the counting and canvassing of votes Who obtained the highest number of legal votes Candidate who has duly filed a certificate of candidacy and has been voted for the same office Protestant may assume office after protestee is unseated QUO WARRANTO disqualify an elected official on the ground of ineligibility due to age, citizenship or the COMELEC of acts enumerated under Section 68 of B. P. Blg. 881 Qualification or the lack of it, of the winning candidate, Any registered voter Issue Who files Effect on the Prostestee Protestee may be ousted, the protestant will not be seated 225. In the case of an election protest, what will happen if the protestant dies after the filing of the petition? With the death of the protestant, there is no longer a protestant to speak of. A claim to a public office is personal to the protestant and, therefore, cannot pass on to his widow or other heirs. In which case, the petition will be dismissed. 285 283 Batas Pambansa Blg. 881 (1985), Section 248; See also Tan and Burahan v. COMELEC, GR Nos. 166143‐47, 20 November 2006. Batas Pambansa Blg. 881 (1985), Section 258. 285 Abadilla v. Aban, HRET Case No. 95‐005, 11 September 1996; See also Poe v. Macapagal‐Arroyo, P.E.T. Case No. 002, 29 March 2005. 284 AES 2010 HANDBOOK Page 91 226. Is the simultaneous prosecution of a pre‐proclamation controversy and an election protest allowed? Yes. There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre‐proclamation controversies and elections protests. Simultaneous prosecution scenario may be allowed because pre‐proclamation controversies and election protests differ in terms of the issues involved and the evidence admissible in each case and the objective each seeks to achieve. Moreover, under certain circumstances, the Supreme Court even encourages the reinforcement of a pre‐proclamation suit with an election protest. When it becomes apparent that a pre‐proclamation suit is inadequate, that election irregularities may be fully ventilated and properly adjudicated by the competent tribunal. 286 227. How about the quo warranto and election protest? May they be simultaneously heard? Yes. The proper tribunal/court’s jurisdiction over a quo warranto proceeding and a protest proper can be exercised jointly and in the same proceeding. 287 228. Who has the burden of proof in an election protest? It is protestant who had the burden of proof to show that the results of election are false and erroneous. 288 229. What must be proven in an election protest and how must it be proved? The issue in an election protest is who obtained the highest number of legal votes. Then, the protestant must show that he actually obtained the highest number of valid votes. To prove this, one may: a) show miscounting and/or misappreciation of votes in a process called revision of ballots, wherein the ballot boxes are opened and their contents, especially the ballots, re‐counted and re‐examined; and b) proving that certain votes of a protestee are invalid, because, among other things, the ballots were cast under duress or that the ballots were cast by persons other than the registered voters. 289 286 287 Tan and Burahan v. COMELEC, G.R. Nos. 166143‐47, 20 November 2006. Loyola v. Dragon, HRET Case No. 92‐026, 31 January 1994. Batuhan v. Cuenco, HRET Case No. 01‐032,22 January 2004. 289 Loyola v. Dragon, HRET Case No. 92‐026, 31 January 1994. 288 AES 2010 HANDBOOK Page 92 230. How should the evidence be presented before the COMELEC? The reception of evidence on all matters of issues raised in the protest and counter‐ protest shall be presented and offered in a hearing upon completion of (a) the recount of ballots, or re‐tabulation of election documents, or (b) the technical examination, if warranted. Reception of evidence shall be made in accordance with the following order of hearing: a. The protestant shall present evidence in support of the protest; b. The protestee shall then adduce evidence in support of the defense, counterclaim or counter‐protest, if any; c. The parties may then respectively offer rebutting evidence only, unless the COMELEC for good reasons, in the furtherance of justice, permits them to offer evidence upon their original case, and d. No sur‐rebuttal evidence shall be allowed. 290 231. What is the best evidence by which the protestant can prove that the results of the election were erroneous? In an election contest where what is involved is the correctness of the number of votes of each candidate, the best and most conclusive evidence are the ballots themselves. But where the ballots cannot be produced, were tampered or are not available, the ER would be the best evidence. 291 While the ballots are the best evidence of the manner in which the electors have voted, they are the best evidence only when their integrity can be satisfactorily established. One who relies, therefore, upon overcoming the prima facie correctness of the official canvass by a resort to the ballots must first show that the ballots are intact and genuine. Once this is shown, the burden of proof shifts to the protestee of establishing that the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place. 292 232. How will electronic evidence be treated? An electronic document or data 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. 293 290 291 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 18, Section 1. Lerias v. HRET, GR No. 97105, 15 October 1991. Rosal v. COMELEC, GR No. 168253 & 172741, 16 March 2007. 293 COMELEC Resolution No. 8804 (22 March 2010), Part IV, Rule 21, Section 1. 292 AES 2010 HANDBOOK Page 93 233. How will electronic evidence be authenticated? The person seeking to introduce an electronic document in an election protest has the burden of proving its authenticity. 294 Manner of proving authenticity of electronic document or data presented as evidence: a. b. by evidence that it had been digitally signed by the person purported to have signed the same; by evidence that other appropriate security procedures or devices for authentication of electronic documents were applied to the document; or by other evidence showing its integrity and reliability to the satisfaction of the judge. c. 234. Can the petitioner claim damages in an election protest or quo warranto proceeding? Yes. The petitioner may be granted actual or compensatory damages. 295 The propriety of the award of damages in favor of the protestant as against the protestee hinges on whether or not, protestee committed an actionable wrong which could serve as basis for the award. The mere fact that a protestant (or a plaintiff, for that matter) wins in an adversarial proceeding does not automatically result in an award for damages against the protestee (or defendant). Conversely, if the protestant had lost in the protest, it also does not automatically result in damages in favor of the protestee, otherwise, it will discourage parties from seeking redress of grievances. Therefore, the prevailing party to be entitled to damages involves an independent determination based on the facts and the law on damages. 296 235. Are there any legal presumptions in appreciating the ballots and ER as evidence? Yes. In the absence of evidence to the contrary, it is presumed that every election has been conducted fairly, honestly and regularly; and the election inspectors, who performed their duties under oath, are presumed to have discharged them faithfully, to have appreciated the ballots correctly; and to have counted the votes accurately. 294 295 COMELEC Resolution No. 8804 (22 March 2010), Part IV, Rule 22, Section 1 and Section 2. Batas Pambansa Blg. 881 (1985), Section 259. 296 Randa v. Libardos, EAC No. 210‐94, 24 August 1995; See also Malaluan v. COMELEC, GR No. 120193, 6 March 1996. AES 2010 HANDBOOK Page 94 Therefore, the tally boards and ER are prima facie evidence of the true results of election in a precinct and the party who, in an election contest, impugns the election in any precinct, has the burden of proving that the tally boards and ER are inaccurate or false. 297 The following presumptions are considered as facts, unless contradicted or overcome by other evidence: a) On the election procedure: � � � � � The election of candidates was held on the date and time set and in the polling place determined by the COMELEC; The BEIs were duly constituted and organized; Political parties and candidates were duly represented by poll watchers; Poll watchers were able to perform their function; and The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors. b.) On election paraphernalia: � � � Ballots and election returns that hear the security markings and features prescribed by the COMELEC are genuine; The data and information supplied by BEI members in the accountable forms are true and correct; and The allocation, packing and distribution of election documents or paraphernalia were properly and timely done. c.) On appreciation of ballots: � � � � � A ballot with appropriate security markings is valid; The ballot reflects the intent of the voter; The ballot is properly accomplished; A voter personally prepared one ballot, except in the case of assistors; and The exercise of one’s right to vote was voluntary and free. 297 Batuhan v. Cuenco, HRET Case No. 01‐032, 22 January 2004. AES 2010 HANDBOOK Page 95 IX. ELECTION OFFENSES 236. What are considered election offenses? See Annex 1 for the list of election offenses that may be committed by (i) a voter; (ii) BEI member ; (iii) any person in all three stages — before the voting (pre‐election), election (during the voting), and after the voting (post‐election). 237. Who are liable for election offenses under the Omnibus Election Code? The principals, accomplices, and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses. If the one responsible is a political party or an entity, the president or head, the officials and employees of the same who performed duties connected with the offense committed and its members who may be principals, accomplices, or accessories shall be liable, in addition to the liability of such party or entity. 298 238. What are the exemptions to the prohibition on selling, furnishing, offering, buying, serving or taking intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day? 299 Hotels and other establishments duly certified by the Ministry of Tourism as tourist‐ oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the COMELEC. Foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted. 239. What are the consequences of double registration of a voter? A registered voter registering anew without filing an application for cancellation of his previous registration is guilty of an election offense. 300 The first registration of any voter subsists but any subsequent registration thereto is void ab initio. 301 The mere act of requesting for cancellation is insufficient, the COMELEC must first act on the request for cancellation. 302 240. What is the additional penalty to the election offense of refusal to carry election mail matter? Such refusal shall constitute a ground for cancellation or revocation of certificate of public convenience or franchise. 298 Batas Pambansa Blg. 881 (1985), Section 263. Batas Pambansa Blg. 881 (1985), Section 261 (dd) (1). 300 Batas Pambansa Blg. 881 (1985), Section 261 (y) (5). 301 Maruhom v. Comelec, G.R. No. 179430, 27 July 2009 citing Comelec Minute Resolution No. 00‐1513. 302 Maruhom v. Comelec, G.R. No. 179430, 27 July 2009 citing Comelec Minute Resolution No. 00‐1513. 299 AES 2010 HANDBOOK Page 96 241. What is the additional penalty to the election offense of discrimination in the sale of air time? Such refusal shall constitute a ground for cancellation or revocation of the franchise. 242. What is the procedure for the investigation of Vote‐Buying and Vote‐Selling? A complaint for vote‐buying and vote‐selling must be presented. The complaint must be supported by affidavits of complaining witnesses attesting to the offer or promise by or of the voter’s acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate. The COMELEC will then immediately conduct an investigation, directly or through its duly authorized legal officers. 303 243. Who are liable for the offense of Vote‐Buying and Vote‐Selling? The giver, offeror, and promisor as well as the solicitor, acceptor, recipient and conspirator shall be liable as principals. Any person, otherwise guilty under said paragraphs who voluntarily gives information and willingly testifies on any violation thereof in any official investigation or proceeding shall be exempt from prosecution and punishment for the offenses with reference to which his information and testimony were given: Provided, further, That nothing herein shall exempt such person from criminal prosecution for perjury or false testimony. 244. Will the presence of the form or name in the book of voters or certified list of voters in other precincts justify the failure to include the approved application form for registration of a qualified voter in the book of voters of a particular precinct that prevents the voter from casting his votes as an election offense? Will the presence of the form or name in the book of voters or certified list of voters in other precincts justify the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is dulyregistered resulting in his failure to cast his vote during an election, plebiscite, referendum, initiative and/or recall? 304 No to both. The presence of the form or name in the book of voters or certified list of voters in precincts other than where he is duly registered shall not be used as an excuse for the election offenses mentioned. 245. When is there a disputable presumption of conspiracy in Vote‐Buying and Vote‐ Selling? Proof that at least one voter in different precincts representing at least twenty percent (20%) of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate’s 303 304 Batas Pambansa Blg. 881 (1985), Section 68 or Section 265. Republic Act No. 8189 (1996), Section 45 (h). AES 2010 HANDBOOK Page 97 relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate, shall constitute a disputable presumption of a conspiracy. 305 Where such proof affects at least twenty percent (20%) of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relates, the same shall constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned, in the conspiracy. 246. Is there such a thing as the election offense of premature campaigning? No, a candidate is liable for an election offense only for acts done during the campaign period, not before. Any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. 306 247. When are election offenses considered as electoral sabotage? Electoral Sabotage The following acts shall constitute electoral sabotage 307: � In the national elective post: tampering, increasing and/or decreasing of votes or refusing to credit the correct votes or to deduct tampered votes, and the results of the election to said national office shall be adversely affected In other elective posts: tampering, increasing and/or decreasing of votes or refusing to credit the correct votes or to deduct tampered votes, accomplished in a single election document or in the transposition of the figures/results from one election document to another and involved in the said tampering increase and/or decrease or refusal to credit correct votes or deduct tampered votes exceed five thousand (5,000) votes, and that the same adversely affects the true results of the election Any and all other forms or tampering increase/s and/or decrease/s of votes perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes, where the total votes involved exceed ten thousand (10,000) votes. � � 305 Batas Pambansa Blg. 881 (1985), Section 261 (b). Penera v. COMELEC, G.R. No. 181613, 25 November 2009; See also Republic Act No. 8436, Section 15, as amended by Republic Act No. 9369 (2007), Section 13. 307 COMELEC Resolution No. 8809 (30 March 2010), Section 32. 306 AES 2010 HANDBOOK Page 98 248. a. b. c. d. What acts are not considered election offenses? Denial of the Right to be Present and to Counsel During the Canvass; 308 Entry of the Canvassing Room by security or armed personnel; 309 Filling a vacancy for councilor during the election ban; 310 and Premature campaigning. 311 249. Are the acts considered unlawful by pertinent election laws also necessarily considered election offenses? Not necessarily, often times the liability is administrative only. Under Section 2, Article IX‐ C of the Constitution, the COMELEC may recommend to the President the imposition of disciplinary action on any officer or employee the COMELEC has deputized for violation of its directive, order or decision. Also, under the Revised Administrative Code, the COMELEC may recommend to the proper authority the suspension or removal of any government official or employee found guilty of violation of election laws or failure to comply with COMELEC orders or rulings. 312 250. Must the deadly weapon be seized from the accused while inside a percent or within 100 meters thereof to sustain a conviction for illegally carrying a deadly weapon inside a precinct? No, it is enough that he carried the deadly weapon “in the polling place or within 100 meters thereof” during any of the specified period to sustain a conviction for illegally carrying a deadly weapon inside a precinct. 313 251. What are the elements of the election offense “transfer or detail of officers and employees in the civil service”? a. The fact of transfer or detail of a public officer or employee within the election period as fixed by the COMELEC; and b. The transfer or detail was done without prior approval of the COMELEC in accordance with its implementing rules and regulations. 308 Malinias v. COMELEC, G.R. No. 146943, 4 October 2002 in relation to Republic Act No. 6646, Section 25. Malinias v. COMELEC, G.R. No. 146943, 4 October 2002 in relation to Batas Pambansa Blg. 881, (1985), Section 232. Ong v. Herrera‐Martinez, G.R. No. 87743, 21 August 1990,“The permanent vacancy for councilor exists and its filling up is governed by the Local Government Code while the appointment referred to in the election ban provision is covered by the Civil Service Law.” 311 Penera v. COMELEC, G.R. No. 181613, 25 November 2009; See also Republic Act No. 8436 (1997), Section 15, as amended by Republic Act No. 9369 (2007), Section 13. 312 Malinias v. COMELEC, G.R. No. 146943, 4 October 2002. 313 Mappalal v. Nunez, A.M. No. RTJ‐94‐1208, 26 January 1995. 309 310 AES 2010 HANDBOOK Page 99 252. Where should complaints on election offenses be filed? The complaint shall be filed with the Law Department of the COMELEC; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal. If filed with any of the latter three (3) officials, investigation thereof may be delegated to any of their assistants. 314 253. What body has jurisdiction over election offenses? The Regional Trial Court has jurisdiction even if the offense carries with it a penalty not exceeding six (6) years. 315 254. Who has the exclusive power to conduct preliminary investigations of election offenses? The COMELEC used to have the exclusive power to conduct preliminary investigations of election offenses. 316 However, the COMELEC 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. 317 Republic Act No. 9369 Section 43 seems to overturn earlier jurisprudence. 314 COMELEC Rules of Procedure, Rule VI, Section 1; See also Corpus v. Tanodbayan, G.R. No. L‐62075, 15 April 1987, Kilosbayan v. COMELEC, G.R. No. 128054, 16 October 1997. 315 COMELEC v. Noynay, G.R. No. 132365, 9 July 1998. 316 People v. Inting, G.R. No. 88919, 25 July 1990. 317 Batas Pambansa Blg. 881 (1985), Section 265, as amended by Republic Act No. 9369 (2007) Section 43. AES 2010 HANDBOOK Page 100 Annex 1: ELECTION OFFENSES Annex 1: ELECTION OFFENSES By a Voter Election Offenses Pre‐Election Offenses � Deadly weapons (in the polling place or a radius of 100 meter thereof); v � Making any false or untruthful statement regarding any of the data or information required in the application for registration; i � Voting more than once in the same election, or who, not being a registered voter, votes in an election; vi � Registering anew without filing an application for cancellation of his previous registration; ii the latter's knowledge and/or consent; vii � Registering in substitution for another whether with or without the latter's knowledge or consent; iii one is not illiterate nor physically disabled,; viii � Voting in substitution for another whether with or without � Allowing his ballot to be prepared by another person, when � Using a ballot in the course of voting other than the one given by the board of election inspectors; ix � Delivering, handing over, entrusting or giving, directly or indirectly, his voter’s identification card to another in consideration of money or other benefit of promise; or take or accept such voter’s identification card, directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise therefore; iv � Possessing more than one official ballot; x � Deliberately blurring his fingerprint in the voting record; xi Annex 1: ELECTION OFFENSES By a BEI Member Election Offenses Post‐Election Offenses Pre‐Election Offenses � election inspectors who, during the prescribe period of posting, removes the election return from the wall on which it had been posted other than for the purpose of immediately transferring it to a more suitable place; xxii Approving any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such xii qualifications; inspectors charged with the duty of reading the ballot during the counting of votes who deliberately omits to read the vote duly written on the ballot, or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the xv ballot; � Any member of the board of election � The chairman or any member of the board of � The chairman or any member of the board of election inspectors who signs or authenticates a print of the election return outside of the polling xxiii place; � � Any member of the board of election Accepting an appointment to the board of election inspectors or the board of canvassers, assuming office, and actually serving as a member thereof by any person xiii who, being ineligible for appointment; inspectors charged with the duty of tallying the votes in the tally board or sheet, ER or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman; xvi � The chairman or any member of the board of election inspectors who signs or authenticates a print which bears an image different from the election return produced after counting and xxiv posted on the wall; � Refusing to sign certify any election form required by this Code or prescribed by the COMELEC although he was present during xiv the meeting of the said body; � Any member of a board of election inspectors who has made possible the casting of more xvii votes than there are registered voters; � Failure to properly distribute the copies of ER ; xxv � Failure to count the votes in public and without interruption; xxvi � Deliberately absenting himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions, by any member of the boards of election inspectors and boards of xviii canvassers; � Tampering, increasing or decreasing the votes received by a candidate in any election (election sabotage); xix � Refusing, after proper verification and hearing, to credit the correct votes or deduct such tampered votes by any member of the board xx of election inspectors or board of canvassers; � Refusing to issue to duly accredited watchers the certificate of votes provided in Section 16 of Republic Act No. 6466 by any member of Annex 1: ELECTION OFFENSES Pre‐Election Offenses Election Offenses the board of election inspectors or board of canvassers; xxi Post‐Election Offenses Annex 1: ELECTION OFFENSES By a BOC Member Post‐Election Offenses Pre‐Election Offenses � board to the candidates, political parties and/or members of the board by the chairman of the board of canvassers; xxviii Accepting an appointment to the board of election inspectors or the board of canvassers, assuming office, and actually serving as a member thereof by any person who, being ineligible for appointment; xxvii � Failing to give due notice of the date, time and place of the meeting of said � Proceeding with the canvass of the votes and/or proclamation of any candidate which was suspended or annulled by the COMELEC , by any xxix member of the board of canvassers; � Proceeding with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time and place of the meeting of the board to the candidates, political parties, and/or other members of the board, by any member of the board of canvassers; xxx � Using in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the ER , without authority of the COMELEC , by any member of the board of canvassers; xxxi � Deliberately absenting himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions, by any member of the boards of election inspectors and boards of canvassers; xxxii � Refusing to sign certify any election form required by this Code or prescribed by the COMELEC although he was present during the meeting of the said body; xxxiii � Tampering, increasing or decreasing the votes received by a candidate in any election (election sabotage); xxxiv � Refusing, after proper verification and hearing, to credit the correct votes or deduct such tampered votes by any member of the board of election inspectors or board of canvassers; xxxv � Failing to comply with the manner of counting votes; xxxvi Annex 1: ELECTION OFFENSES By a Public Officer Election Offenses Post‐Election Offenses Pre‐Election Offenses � Relieving any member of any board of election inspectors or board of canvassers, without authority of the COMELEC by any public official l or person acting in his behalf; Appointment of new employees, creation of new position, promotion, or giving salary xxxvii increases; Changing or causing the change of the assignments of any member of any board of election inspectors or board of canvassers, without authority of the COMELEC by any public official or person acting in xlix his behalf; � � � Transfer of officers and employees in the civil xxxviii service; � � officers and xl Intervention of employees; xxxix public � Use of Undue influence; Changing or causing the change of the assignments of any member of any board of election inspectors or board of canvassers, without authority of the COMELEC by any public li official or person acting in his behalf; Failing to give notice of meetings to other members of the board, candidate or political party as required under Section 23 of Republic Act No. 6466 by the chairman of the board of canvassers; lii � Relieving any member of any board of election inspectors or board of canvassers, without authority of the COMELEC by any xli public official or person acting in his behalf; � � Changing or causing the change of the assignments of any member of any board of election inspectors or board of canvassers, without authority of the COMELEC by any xlii public official or person acting in his behalf; � Appointment or use of special policemen, special agents, confidential agents of the xliii like; � Illegal release of prisoners before and after xliv election; � Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election xlv campaign; � Suspension of elective provincial, city, municipal or barangay officer; xlvi � Appointing such ineligible person to the BEI or BOC knowing him to be ineligible by any public officer or any person acting in his xlvii behalf; Annex 1: ELECTION OFFENSES Election Offenses Post‐Election Offenses � Pre‐Election Offenses Failing to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part [of] the election xlviii officer concerned; Annex 1: ELECTION OFFENSES By Anyone Election Offenses Post‐Election Offenses Pre‐Election Offenses liii � liv Vote‐buying and vote‐selling; Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; cxv election officials and Coercion of employees; cxvi Deadly weapons (in the polling place or a radius of 100 meter therof); cxvii � � � � � � � � � � Carrying firearms outside residence or cxviii place of business; Use of armored land, water or air craft; cxix Wearing of uniforms and bearing arms; Policemen and provincial guards acting as cxxi bodyguards or security guards; cxx � � Conspiracy to bribe voters; � lvi Unlawful electioneering; lv � Dismissal of employees, laborers, or tenants; � Deliberately imprinting or causing the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter's affidavit; lvii Conducting oneself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing the board of election inspectors or board of canvassers during any of its meetings from performing its functions, either partly or totally; 318 Removing or defacing the ER posted 319 on the wall; Simulation of an election return; 320 � � � � � Availing himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted; cxxii Arresting or detaining a voter without cxxiii lawful cause; Any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of lviii the aforementioned registration forms; lix Simulation of the certification in a print 321 of an election return; Refusing to present for perusal its copy of election return to the board of 322 canvassers, by the citizens' arm; Presenting of tampered or spurious ER 323 by the citizens' arm; � Carrying firearms outside residence or place of business; � Use of armored land, water or air craft; lx � Wearing of uniforms and bearing arms; lxi � Policemen and provincial guards acting as bodyguards or lxii security guards; � Wagering upon result of election; lxiii � � � Organization or maintenance of reaction forces, strike lxiv forces, or other similar forces; Refusing or failing to provide the dominant majority and dominant minority parties or the citizens' arm their copy of 324 ER ; � Release, disbursement or expenditure of public funds; lxv � Construction of public works, delivery of materials for public works and issuance of treasury warrants and Molesting a voter in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from cxxiv returning home after casting his vote; Compelling a voter to reveal how he � 318 319 320 Batas Pambansa Blg. 881 (1985), Section 261 (bb) (4). Batas Pambansa Blg. 881 (1985), Section 212 (a), as amended by Republic Act No. 9369 (2007), Section 32. Batas Pambansa Blg. 881 (1985), Section 212 (b); See also Republic Act No. 7166 (1991), Section 30 as amended by Republic Act No. 9369 (2007), Section 37. 321 Batas Pambansa Blg. 881 (1985), Section 212 (c). 322 Republic Act No. 8436 (1997), Section 35 (d), as amended by Republic Act No. 9369 (2007), Section 28. 323 Republic Act No. 8436 (1997), Section 35 (e), as amended by Republic Act No. 9369 (2007), Section 28. 324 Republic Act No. 8436 (1997), Section 35 (f), as amended by Republic Act No. 9369 (2007), Section 28. Annex 1: ELECTION OFFENSES Election Offenses voted; cxxv Pre‐Election Offenses lxvi similar devices; Post‐Election Offenses � Tampering with the fingerprints in said registration lxvii records; � � or obstructing another from Tampering with or changing without authority any data lxviii or entry in any voter's application for registration; � Delaying, hindering registering; lxix � Falsely certifying or identifying another as a bona fide resident of a particular place or locality for the purpose of lxx securing the latter's registration as a voter; Propagating false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election, for the purpose of disrupting or obstructing the election process or causing confusion among the voters; cxxvi � Placing, inserting or otherwise including, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that lxxi has not been approved; � � Destroying, substituting or taking away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election, without cxxvii legal authority; Removing from, or otherwise taking out of the book of voters or the provincial or national central files of registered voters any duly approved voter's application, except upon lawful order of the COMELEC , or of a lxxii competent court or after proper cancellation; � Opening or destroying the ballot box containing the official ballots used in the election or removes or destroys its contents without or against the order of the COMELEC , by the person having legal custody over said box; cxxviii � Transferring or causing the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new lxxiii polling place; � � Asking, demanding, taking, accepting or possessing, directly or indirectly, the voter's affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in lxxiv a plebiscite or referendum; � Enabling any person to open or destroy the ballot box containing the official ballots used in the election or remove or destroy its contents without or against the order of the COMELEC , or take away said ballot box from his custody, by the person having legal custody of the ballot box containing the official ballots used in the election , cxxix through his negligence; Knowingly using ballots other than the official ballots, except in those cases where the use of emergency ballots is authorized, by any member of the board of election Delivering, handing over, entrusting, giving directly or indirectly his voter's affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter's affidavit directly or indirectly, by giving or causing the giving of money or other benefit or lxxv making or causing the making of a promise thereof; � Annex 1: ELECTION OFFENSES Post‐Election Offenses � Pre‐Election Offenses Altering in any manner, tearing, defacing, removing or lxxvi destroying any certified list of voters; Election Offenses cxxx inspectors; � � Revealing the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot; cxxxi Transferring the location of a polling place cxxxii without authority; Printing or causing the printing of any ballot or ER that appears as official ballots cxxxiii or ER , without authority; Taking, carrying or possessing any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order lxxvii of the court or of the COMELEC ; � � � Distributing or causing any ballot or ER that appears as official ballots or ER to be distributed for use in the election, whether or not they are actually used, without authority; cxxxiv � Maliciously omitting, tampering or transferring to another list the name of a registered voter from the lxxviii official list of voters posted outside the polling place; � Holding political conventions or meetings to nominate its official candidates earlier that the period fixed in the lxxix Omnibus Code; � Obstructing, destroying or canceling any certificate of candidacy duly filed and which has not been cancelled lxxx upon order of the COMELEC ; � � Misleading the board of election inspectors by submitting any false or spurious certificate of candidacy or document lxxxi to the prejudice of a candidate; � Receiving any certificate of candidacy outside the period for filing the same and making it appear that said certificate of candidacy was filed on time by any person lxxxii authorized to receive certificates of candidacy; Keeping, using or carrying out or causing to be kept, used or carried out, any official ballot or ER or printed proof thereof, type‐ form mould, electro‐type printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or ER , without cxxxv authority; Causing official ballots or ER to be printed in quantities exceeding those authorized by the COMELEC , by any official or employee of any printing establishment or of the COMELEC or any member of the committee in charge of the printing of official ballots or ER ; cxxxvi � Causing or compelling the COMELEC of receiving any certificate of candidacy outside the period for filing the same and making it appear that said certificate of candidacy was filed on time by any person authorized to receive certificates of candidacy, by means of fraud, lxxxiii threat, intimidation, terrorism or coercion; � � Jamming, obstructing or interfering with a radio or television broadcast of any lawful political program by lxxxiv any device or means; � � Selling, furnishing, offering, buying, serving or taking intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day lxxxv before the election or on election day; Distributing, delivering, or in any manner disposing of or causing to be distributed, delivered, or disposed of, any official ballot or ER to any person or persons not authorized by law or by the COMELEC to receive or keep official ballots or ER or who sends or causes them to be sent to Annex 1: ELECTION OFFENSES Post‐Election Offenses � Pre‐Election Offenses Refusing to carry official election mail matters free of charge during the election period by any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including government‐owned or controlled postal service lxxxvi (Refusal to or its employees or deputized agents; carry election mail matter.) Election Offenses any place not designated by law or by the COMELEC , by any official or employee of any printing establishment or of the COMELEC or any member of the committee in charge of the printing of official ballots or ER ; cxxxvii � � Violating the integrity of any official ballot or ER before or after they are used in the election; cxxxviii Discriminating against any political party, coalition or aggroupment of parties or any candidate in the sale of air time by any person who operates a radio or television lxxxvii (Prohibition station who without justifiable cause; against discrimination in the sale of air time.) � Removing, tearing, defacing or destroying any certified list of candidates posted inside the voting booths during the hours of voting; cxxxix Holding or causing the holding of an election on any other day than that fixed by law or by the COMELEC , or stops any election being legally held; cxl � � Violation of the provisions, or pertinent portions, of the following sections of the Omnibus Election Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, lxxxviii lxxxix 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, xc xci 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240; xcii � � Conducting oneself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing the board of election inspectors or board of canvassers during any of its meetings from performing its functions, either partly or cxli totally; Causing the printing of official ballots and ER by any printing establishment which is not under contract with the COMELEC and any printing establishment which undertakes such unauthorized printing (election sabotage); xciii � � Soliciting votes or undertaking any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius cxlii of thirty meters thereof; Causing the printing of official ballots and ER by any printing establishment which is not under contract with the COMELEC and any printing establishment which undertakes such unauthorized printing (election sabotage); xciv � � Violating Section 11 of Republic Act No. 6466 regarding xcv prohibited forms of election propaganda; Selling, furnishing, offering, buying, serving or taking intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day; cxliii Opening in any polling place or within a radius of thirty meters thereof on election day and during the counting of votes, � Continuing to misrepresent himself, or holding himself out, as a candidate, such as by continuing to campaign thereafter by any person declared a nuisance candidate � Annex 1: ELECTION OFFENSES Pre‐Election Offenses as defined under Section 69 of Batas Pambansa Blg. 881, or is otherwise disqualified, by final and executory judgment; xcvi Post‐Election Offenses � Election Offenses booths or stalls of any kind for the sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes; cxliv Knowingly inducing or abetting, by COMELEC or omission, such misrepresentation or holding out as a candidate of any person declared a nuisance candidate as defined under Section 69 of Batas Pambansa Blg. 881 or otherwise disqualified, by final and executory judgment; xcvii � Holding on election day, fairs, cockfights, boxing, horse races, jai‐alai or any other similar sports; cxlv � Failing, without cause, to post or give any of the notices or to make any of the reports re‐acquired under Republic xcviii Act No. 8189; � Issuing or causing the issuance of a voter’s identification number or to cancel or cause the cancellation thereof in xcix violation of the provisions of Republic Act No. 8189; � Refusing the issuance of registered voters their voter’s c identification card; � Accepting an appointment, to assume office and to actually serve as a member of the Election Registration ci Board although ineligible thereto; � Appointing such ineligible person accept an appointment, cii to the Election Registration Board; � Interfering with, impeding, abscond for purpose of gain or to prevent the installation or use of computers and devices and the processing, storage, generation, and ciii transmission of registration data or information; � Gaining, causing access to use, altering, destroying, or disclosing any computer data, program, system software, network, or any computer‐related devices, facilities, hardware or equipment, whether classified or declassified; civ � Failing to provide certified voters and deactivated voters list to candidates and heads of representatives of political parties upon written request as provided in Section 30 of cv Republic Act No. 8189; � Failing to include the approved application form for Annex 1: ELECTION OFFENSES Pre‐Election Offenses registration of a qualified voter in the book of voters of a particular precinct or the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is duly, registered resulting in his failure to cast his vote during an election, plebiscite, cvi referendum, initiative and/or recall; Election Offenses Post‐Election Offenses � Posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite, referendum, initiative and/or recall, and which list is different in contents from the certified list of voters being used by the cvii Board of Election Inspectors; � Violating of the provisions of Republic Act No. 8189; cviii � Coercing, bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidate from running in a special cix election; � Utilizing without authorization, tampering with, destroying or stealing: official ballots, ER , and certificates of canvass of votes used in the automated election cx system; � Utilizing without authorization, tampering with, destroying or stealing: Electronic devices or their components, peripherals or supplies used in the AES such as counting machine, memory pack/diskette, memory cxi pack receiver and computer set; � 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 cxii information; � 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 Annex 1: ELECTION OFFENSES Pre‐Election Offenses Election Offenses Post‐Election Offenses declassified; cxiii � Violation of Republic Act No. 9006 and the rules and regulations of the COMELEC issued to implement cxiv Republic Act No. 9006 END NOTES (Annex 1) i Batas Pambansa Blg. 881 (1985), Section 261 (y) (2). Batas Pambansa Blg. 881 (1985), Section 261 (y) (5). iii Batas Pambansa Blg. 881 (1985), Section 261 (y) (6). iv Republic Act No. 8189, Section 45 (a). v Batas Pambansa Blg. 881 (1985), Section 261 (p). vi Batas Pambansa Blg. 881 (1985), Section 261 (z) (2). vii Batas Pambansa Blg. 881 (1985), Section 261 (z) (3). viii Batas Pambansa Blg. 881 (1985), Section 261 (z) (4). ix Batas Pambansa Blg. 881 (1985), Section 261 (z) (6). x Batas Pambansa Blg. 881 (1985), Section 261 (z) (6). xi Batas Pambansa Blg. 881 (1985), Section 261 (z) (24). xii Batas Pambansa Blg. 881 (1985), Section 261 (y) (4). xiii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (3); See also Section 3, Comelec Resolution 8786(4 March 2010). xiv Batas Pambansa Blg. 881 (1985), Section 261 (bb) (2). xv Batas Pambansa Blg. 881 (1985), Section 261 (z) (8). xvi Batas Pambansa Blg. 881 (1985), Section 261 (z) (9). xvii Batas Pambansa Blg. 881 (1985), Section 261 (z) (10). xviii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (1);See also Section 15, Comelec Resolution 8809 (30 March 2010) xix Republic Act No. 6646 Section 27 (b), as amended by Republic Act No. 9369 (2007), Section 42. xx Republic Act No. 6646 Section 27 (b), as amended by Republic Act No. 9369 (2007) Section 42. xxi Republic Act No. 6646 Section 27 (c). xxii Batas Pambansa Blg. 881 (1985), Section 212 (d). xxiii Batas Pambansa Blg. 881 (1985), Section 212 (e). xxiv Batas Pambansa Blg. 881 (1985), Section 212 (f). xxv Republic Act No. 7166 (1991), Section 27, as amended by Republic Act No. 9369 (2007), Section 33. xxvi Batas Pambansa Blg. 881 (1985), Section 206, as amended by Republic Act No. 9369 (2007), Section 35. xxvii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (3). xxviii Batas Pambansa Blg. 881 (1985), Section 261 (aa) (1). xxix Batas Pambansa Blg. 881 (1985), Section 261 (aa) (2). xxx Batas Pambansa Blg. 881 (1985), Section 261 (aa) (3). xxxi Batas Pambansa Blg. 881 (1985), Section 261 (aa) (4). xxxii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (1). xxxiii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (2). xxxiv Republic Act No. 6646, Section 27 (b), as amended by Republic Act No. 9369 (2007), Section 42. xxxv Republic Act No. 6646, Section 27 (b), as amended by Republic Act No. 9369 (2007) Section 42. xxxvi Republic Act No. 7166, Section 25, as amended by Republic Act No. 9369 (2007), Section 31. xxxvii Batas Pambansa Blg. 881 (1985), Section 261 (g). xxxviii Batas Pambansa Blg. 881 (1985), Section 261 (h). xxxix Batas Pambansa Blg. 881 (1985), Section 261 (i). xl Batas Pambansa Blg. 881 (1985), Section 261 (j). xli Batas Pambansa Blg. 881 (1985), Section 261 (bb) (5). xlii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (5). xliii Batas Pambansa Blg. 881 (1985), Section 261 (m). xliv Batas Pambansa Blg. 881 (1985), Section 261 (n). xlv Batas Pambansa Blg. 881 (1985), Section 261 (o). xlvi Batas Pambansa Blg. 881 (1985), Section 261 (x). xlvii Batas Pambansa Blg. 881 (1985), Section 261 (bb) (3), xlviii Republic Act No. 8436, Section 35 (g), as amended by Republic Act No. 9369 (2007), Section 28. xlix Batas Pambansa Blg. 881 (1985), Section 261 (bb) (5). l Batas Pambansa Blg. 881 (1985), Section 261 (bb) (5). li Batas Pambansa Blg. 881 (1985), Section 261 (bb) (5). lii Republic Act No. 6646, Section 27 (e). liii Batas Pambansa Blg. 881 (1985), Section 261 (a). liv Batas Pambansa Blg. 881 (1985), Section 261 (b). lv Batas Pambansa Blg. 881 (1985), Section 261 (k). lvi Batas Pambansa Blg. 881 (1985), Section 261 (l). lvii Batas Pambansa Blg. 881 (1985), Section 261 (y) (3). lviii Batas Pambansa Blg. 881 (1985), Section 261 (y) (3). lix Batas Pambansa Blg. 881 (1985), Section 261 (q); see also Republic Act No. 7166 (1991), Section 32 for the exceptions to this prohibition. lx Batas Pambansa Blg. 881 (1985), Section 261 (r). lxi Batas Pambansa Blg. 881 (1985), Section 261 (s). lxii Batas Pambansa Blg. 881 (1985), Section 261 (t); see also Republic Act No. 7166 (1991), Section 33 for the exceptions to this prohibition . lxiii Batas Pambansa Blg. 881 (1985), Section 261 (c). lxiv Batas Pambansa Blg. 881 (1985), Section 261 (u). lxv Batas Pambansa Blg. 881 (1985), Section 261 (v). ii lxvi Batas Pambansa Blg. 881 (1985), Section 261 (w). Batas Pambansa Blg. 881 (1985), Section 261 (y) (3). lxviii Batas Pambansa Blg. 881 (1985), Section 261 (y) (7). lxix Batas Pambansa Blg. 881 (1985), Section 261 (y) (8). lxx Batas Pambansa Blg. 881 (1985), Section 261 (y) (9). lxxi Batas Pambansa Blg. 881 (1985), Section 261 (y) (11). lxxii Batas Pambansa Blg. 881 (1985), Section 261 (y) (11). lxxiii Batas Pambansa Blg. 881 (1985), Section 261 (y) (12). lxxiv Batas Pambansa Blg. 881 (1985), Section 261 (y) (13). lxxv Batas Pambansa Blg. 881 (1985), Section 261 (y) (14). lxxvi Batas Pambansa Blg. 881 (1985), Section 261 (y) (15). lxxvii Batas Pambansa Blg. 881 (1985), Section 261 (y) (16). lxxviii Batas Pambansa Blg. 881 (1985), Section 261 (y) (17). lxxix Batas Pambansa Blg. 881 (1985), Section 261 (cc) (1). lxxx Batas Pambansa Blg. 881 (1985), Section 261 (cc) (2). lxxxi Batas Pambansa Blg. 881 (1985), Section 261 (cc) (3). lxxxii Batas Pambansa Blg. 881 (1985), Section 261 (cc) (4). lxxxiii Batas Pambansa Blg. 881 (1985), Section 261 (cc) (4). lxxxiv Batas Pambansa Blg. 881 (1985), Section 261 (cc) (5). lxxxv Batas Pambansa Blg. 881 (1985), Section 261 (dd) (1). lxxxvi Batas Pambansa Blg. 881 (1985), Section 261 (dd) (4). lxxxvii Batas Pambansa Blg. 881 (1985), Section 261 (dd) (5). lxxxviii See Penera v. COMELEC, G.R. No. 181613, 25 November, 2009; See also Republic Act No. 8436, Section 15, as amended by Republic Act No. 9369 (2007), Section 13. lxxxix Repealed by Republic Act No. 9006, Section 14; See Republic Act No. 6646, Section 11 for additional prohibited forms of election propaganda. xc Amended by Republic Act No. 9369 (2007), Section 35. xci Amended by Republic Act No. 9369 (2007), Section 32. xcii Batas Pambansa Blg. 881 (1985), Section 262. xciii Republic Act No. 6646, Section 27 (a). xciv Republic Act No. 6646, Section 27 (a). xcv Republic Act No. 6646, Section 27 (d). xcvi Republic Act No. 6646, Section 27 (f). xcvii Republic Act No. 6646, Section 27 (f). xcviii Republic Act No. 8189, Section 45 (b). xcix Republic Act No. 8189, Section 45 (c). c Republic Act No. 8189, Section 45 (c). ci Republic Act No. 8189, Section 45 (d). cii Republic Act No. 8189, Section 45 (d). ciii Republic Act No. 8189, Section 45 (e). civ Republic Act No. 8189, Section 45 (f). cv Republic Act No. 8189, Section 45 (g). cvi Republic Act No. 8189, Section 45 (h). cvii Republic Act No. 8189, Section 45 (i). cviii Republic Act No. 8189, Section 45 (j). cix Republic Act No. 8295, Section 5. cx Republic Act No. 8436, Section 35 (a)(1), as amended by Republic Act No. 9369 (2007), Section 28. cxi Republic Act No. 8436, Section 35 (a) (2), as amended by Republic Act No. 9369 (2007), Section 28. cxii Republic Act No. 8436, Section 35 (b), as amended by Republic Act No. 9369 (2007), Section 28. cxiii Republic Act No. 8436, Section 35 (c), as amended by Republic Act No. 9369 (2007), Section 28. cxiv Republic Act No. 9006, Section 13. cxv Batas Pambansa Blg. 881 (1985), Section 261 (d). cxvi Batas Pambansa Blg. 881 (1985), Section 261 (f). cxvii Batas Pambansa Blg. 881 (1985), Section 261 (p). cxviii Batas Pambansa Blg. 881 (1985), Section 261 (q); see also Republic Act No. 7166(1991), Section 32 for the exceptions to this prohibition. cxix Batas Pambansa Blg. 881 (1985), Section 261 (r). cxx Batas Pambansa Blg. 881 (1985), Section 261 (s). cxxi Batas Pambansa Blg. 881 (1985), Section 261 (t); see also Republic Act No. 7166 (1991), Section 33 for the exceptions to this prohibition. cxxii Batas Pambansa Blg. 881 (1985), Section 261 (z) (5). cxxiii Batas Pambansa Blg. 881 (1985), Section 261 (z) (7). cxxiv Batas Pambansa Blg. 881 (1985), Section 261 (z) (7). cxxv Batas Pambansa Blg. 881 (1985), Section 261 (z) (7). cxxvi Batas Pambansa Blg. 881 (1985), Section 261 (z) (11). cxxvii Batas Pambansa Blg. 881 (1985), Section 261 (z) (12). cxxviii Batas Pambansa Blg. 881 (1985), Section 261 (z) (13). cxxix Batas Pambansa Blg. 881 (1985), Section 261 (z) (13). cxxx Batas Pambansa Blg. 881 (1985), Section 261 (z) (14). cxxxi Batas Pambansa Blg. 881 (1985), Section 261 (z) (16). lxvii cxxxii Batas Pambansa Blg. 881 (1985), Section 261 (z) (17). Batas Pambansa Blg. 881 (1985), Section 261 (z) (18). cxxxiv Batas Pambansa Blg. 881 (1985), Section 261 (z) (18). cxxxv Batas Pambansa Blg. 881 (1985), Section 261 (z) (19). cxxxvi Batas Pambansa Blg. 881 (1985), Section 261 (z) (20). cxxxvii Batas Pambansa Blg. 881 (1985), Section 261 (z) (20). cxxxviii Batas Pambansa Blg. 881 (1985), Section 261 (z) (21); see also Comelec Resolution 8786 (4 March 2010), Section 30 (e). cxxxix Batas Pambansa Blg. 881 (1985), Section 261 (z) (22). cxl Batas Pambansa Blg. 881 (1985), Section 261 (z) (23). cxli Batas Pambansa Blg. 881 (1985). Section 261 (bb) (4). cxlii Batas Pambansa Blg. 881 (1985), Section 261 (cc) (6). cxliii Batas Pambansa Blg. 881 (1985), Section 261 (dd) (1). cxliv Batas Pambansa Blg. 881 (1985), Section 261 (dd) (2). cxlv Batas Pambansa Blg. 881 (1985), Section 261 (dd) (3). cxxxiii PROJECT TEAM Dean Marvic M.V.F. Leonen Dean, UP College of Law Prof. Jose Jesus M. Disini Project Director Atty. Nicholas Felix L. Ty Project Coordinator Atty. January A. Sanchez Atty. Yvette P. Chua Atty. Jean Francois DP Rivera Atty. Patrick Lester Ng. Ty Atty. Ramon Abraham A. Sarmiento Atty. Milabel R. Mujer Atty. Neilster Jon S. Asinas Atty. Melyjane G. Bertillo Atty. Ian Esteban C. Ramos Text Writers Ms. Venus Amelie G.Mejia Mr. Norman Ocana Jr. Research Assistants Ms. Elisa S. Ochoa Project Secretary Ms. Eleanor V. Arzadon Assistant Project Secretary Mr. Primo S. Ariñas Ms. Ma. Luisa D. Belen‐Tirol Ms. Alona M. Rago Mr. Pedro Malicdem, Jr. Ms. Virgelet S. Encarnacion Mr. Emmanuel Evangelista Mr. Freddie P. Genove Support Staff