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REPUBLIC ACT NO. 8436

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, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.
Section 1. Declaration of policy. It is the policy of the State to ensure free, orderly, honest, peaceful
and credible elections, and assure the secrecy and sanctity of the ballot in order that the results of
elections, plebiscites, referenda, and other electoral exercises shall be fast, accurate and reflective of
the genuine will of the people.
Sec. 2. Definition of terms. As used in this Act, the following terms shall mean:
1. Automated election system a system using appropriate technology for voting and electronic
devices to count votes and canvass/consolidate results;
2. Counting machine a machine that uses an optical scanning/marksense reading device or any
similar advanced technology to count ballots;
3. Data storage device a device used to electronically store counting and canvassing results, such as a
memory pack or diskette;
4. Computer set a set of equipment containing regular components, i.e., monitor, central processing
unit or CPU, keyboard and printer;
5. National ballot refers to the ballot to be used in the automated election system for the purpose of
the May 11, 1998 elections. This shall contain the names of the candidates for president, vice-president,
senators and parties, organizations or coalitions participating under the party-list system. This ballot
shall be counted by the counting machine;
6. Local Ballot 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-mayor, and members of the city/municipal council. For the purpose of the
May 11, 1998 elections, this ballot will be counted manually;
7. Board of Election Inspectors there shall be a Board of Election Inspectors in every precinct
composed of three (3) regular members who shall conduct the voting, counting and recording of votes
in the polling place.
For the purpose of the May 11, 1998 elections, there shall be special members composed of a fourth
member in each precinct and a COMELEC representative who is authorized to operate the counting
machine. Both shall conduct the counting and recording of votes of the national ballots in the
designated counting centers;
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8. Election returns a machine-generated document 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
directly produced by the counting machine;
9. Statement of votes a machine-generated document containing the votes obtained by candidates in
each precinct in a city/municipality;
10. City/municipal/district/provincial certificate of canvass of votes a machine-generated document
containing the total votes in figures obtained by each candidate in a city/municipality/district/ province
as the case may be; and
11. Counting center a public place designated by the Commission where counting of votes and
canvassing/consolidation of results shall be conducted.
Sec. 3. Qualifications, rights and limitations of the special members of the Board of Election
Inspectors. No person shall be appointed as a special member of the board of election inspectors
unless he/she is of good moral character and irreproachable reputation, a registered voter, has never
been convicted of any election offense or of any crime punishable by more than six (6) months
imprisonment or if he/she has pending against him/her an information for any election offense or if
he/she is related within the fourth civil degree of consanguinity or affinity to any member of the board
of election inspectors or any special member of the same board of Election Inspector or to any
candidate for a national position or to a nominee as a party list representative or his/her spouse. The
special members of the board shall enjoy the same rights and be bound by the same limitations and
liabilities of a regular member of the board of election inspectors but shall not vote during the
proceedings of the board of election inspectors except on matters pertaining to the national ballot.
Sec. 4. Duties and functions of the special members of the Board of Election Inspectors.
1. During the conduct of the voting in the polling place, the fourth member shall:
(a) accomplish the minutes of voting for the automated election system in the precinct; and
(b) ensure that the national ballots are placed inside the appropriate ballot box;
2. On the close of the polls, the fourth member shall bring the ballot box containing the national ballots
to the designated counting center;
3. Before the counting of votes, the fourth member shall verify if the number of national ballots tallies
with the data in the minutes of the voting;
4. During the counting of votes, the fourth member and the COMELEC authorized representative shall
jointly accomplish the minutes of counting for the automated election system in the precinct;
5. After the counting of votes, the fourth member and the COMELEC authorized representative shall
jointly:
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(a) certify the results of the counting of national ballots from the precinct; and
(b) bring the ballot box containing the counted national ballots together with the minutes of voting and
counting, and other election documents and paraphernalia to the city or municipal treasurer for
safekeeping.
Sec. 5. Board of Canvassers. For purposes of the May 11, 1998 elections, each province, city or
municipality shall have two (2) board of canvassers, one for the manual election system under the
existing law, and the other, for the automated system. For the automated election system, the chairman
of the board shall be appointed by the Commission from among its personnel/deputies and the
members from the officials enumerated in Sec. 21 of Republic Act No. 6646.
Sec. 6. Authority to use an automated election system. To carry out the above-stated policy, the
Commission on Elections, herein referred to as the Commission, is hereby authorized to use an
automated election system, herein referred to as the System, for the process of voting, counting of
votes and canvassing/consolidation of results of the national and local elections: Provided, however,
That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only
for the positions of president, vice-president, senators and parties, organizations or coalitions
participating under the party-list system.
To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or
otherwise any supplies, equipment, materials and services needed for the holding of the elections by an
expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited
political parties are duly notified of and allowed to observe but not to participate in the bidding. If,
inspite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes
evident by February 9, 1998 that the Commission cannot fully implement the automated election
system for national positions in the May 11, 1998 elections, the elections for both national and local
positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where
the automated election system shall be used for all positions.
Sec. 7. Features of the system. The System shall utilize appropriate technology for voting, and
electronic devices for counting of votes and canvassing of results. For this purpose, the Commission shall
acquire automated counting machines, computer equipment, devices and materials and adopt new
forms and printing materials.
The System shall contain the following features: (a) use of appropriate ballots, (b) stand-alone machine
which can count votes and an automated system which can consolidate the results immediately, (c) with
provisions for audit trails, (d) minimum human intervention, and (e) adequate safeguard/security
measures.
In addition, the System shall as far as practicable have the following features:
1. It must be user-friendly and need not require computer-literate operators;
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2. The machine security must be built-in and multi-layer existent on hardware and software with
minimum human intervention using latest technology like encrypted coding system;
3. The security key control must be embedded inside the machine sealed against human intervention;
4. The Optical Mark Reader (OMR) must have a built-in printer for numbering the counted ballots and
also for printing the individual precinct number on the counted ballots;
5. The ballot paper for the OMR counting machine must be of the quality that passed the international
standard like ISO-1831, JIS-X- 9004 or its equivalent for optical character recognition;
6. The ballot feeder must be automatic;
7. The machine must be able to count from 100 to 150 ballots per minute;
8. The counting machine must be able to detect fake or counterfeit ballots and must have a fake ballot
rejector;
9. The counting machine must be able to detect and reject previously counted ballots to prevent
duplication;
10. The counting machine must have the capability to recognize the ballot's individual precinct and city
or municipality before counting or consolidating the votes;
11. The System must have a printer that has the capacity to print in one stroke or operation seven (7)
copies (original plus six (6) copies) of the consolidated reports on carbonless paper;
12. The printer must have at least 128 kilobytes of Random Access Memory (RAM) to facilitate the
expeditious processing of the printing of the consolidated reports;
13. The machine must have a built-in floppy disk drive in order to save the processed data on a diskette;
14. The machine must also have a built-in hard disk to store the counted and consolidated data for
future printout and verification;
15. The machine must be temperature-resistant and rust-proof;
16. The optical lens of the OMR must have a self-cleaning device;
17. The machine must not be capable of being connected to external computer peripherals for the
process of vote consolidation;
18. The machine must have an Uninterrupted Power Supply (UPS);
19. The machine must be accompanied with operating manuals that will guide the personnel of the
Commission the proper use and maintenance of the machine;
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20. It must be so designed and built that add-ons may immediately be incorporated into the System at
minimum expense;
21. It must provide the shortest time needed to complete the counting of votes and canvassing of the
results of the election;
22. The machine must be able to generate consolidated reports like the election return, statement of
votes and certificate of canvass at different levels; and
23. The accuracy of the count must be guaranteed, the margin of error must be disclosed and backed by
warranty under such terms and conditions as may be determined by the Commission.
In the procurement of this system, the Commission shall adopt an equitable system of deductions or
demerits for deviations or deficiencies in meeting all the above stated features and standards.
For this purpose, the Commission shall create an Advisory Council to be composed of technical experts
from the Department of Science and Technology (DOST), the Information Technology Foundation of the
Philippines (ITFP), the University of the Philippines (UP), and two (2) representatives from the private
sector recommended by the Philippine Computer Society (PCS). The Council may avail itself of the
expertise and services of resource persons of known competence and probity.
The Commission in collaboration with the DOST shall establish an independent Technical Ad Hoc
Evaluation Committee, herein known as the Committee, composed of a representative each from the
Senate, House of Representatives, DOST and COMELEC. The Committee shall certify that the System is
operating properly and accurately and that the machines have a demonstrable capacity to distinguish
between genuine and spurious ballots.
The Committee shall ensure that the testing procedure shall be unbiased and effective in checking the
worthiness of the System. Toward this end, the Committee shall design and implement a reliability test
procedure or a system stress test.
Sec. 8. Procurement of equipment and materials. The Commission shall procure the automated
counting machines, computer equipment, devices and materials needed for ballot printing and devices
for voting, counting and canvassing from local or foreign sources free from taxes and import duties,
subject to accounting and auditing rules and regulations.
Sec. 9. Systems breakdown in the counting center. In the event of a systems breakdown of all
assigned machines in the counting center, the Commission shall use any available machine or any
component thereof from another city/municipality upon the approval of the Commission En Banc or any
of its divisions.
The transfer of such machines or any component thereof shall be undertaken in the presence of
representatives of political parties and citizens' arm of the Commission who shall be notified by the
election officer of such transfer.
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There is a systems breakdown in the counting center when the machine fails to read the ballots or fails
to store/save results or fails to print the results after it has read the ballots; or when the computer fails
to consolidate election results/reports or fails to print election results/reports after consolidation.
Sec. 10. Examination and testing of counting machines. The Commission shall, on the date and time
it shall set and with proper notices, allow the political parties and candidates or their representatives,
citizens' arm or their representatives to examine and test the machines to ascertain that the system is
operating properly and accurately. Test ballots and test forms shall be provided by the Commission.
After the examination and testing, the machines shall be locked and sealed by the election officer or any
authorized representative of the Commission in the presence of the political parties and candidates or
their representatives, and accredited citizens' arms. The machines shall be kept locked and sealed and
shall be opened again on election day before the counting of votes begins.
Immediately after the examination and testing of the machines, the parties and candidates or their
representatives, citizens' arms or their representatives, may submit a written report to the election
officer who shall immediately transmit it to the Commission for appropriate action.
Sec. 11. Official ballot. The Commission shall prescribe the size and form of the official ballot which
shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A fixed space where the
chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred twenty
(120) days before the elections: Provided, That, any elective official, whether national or local, running
for any office other than the one which he/she is holding in a permanent capacity, except for president
and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding
to the position for which he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice President, Senators and candidates under the Party-List
System as well as petitions for registration and/or manifestation to participate in the Party-List System
shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other
positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas
at the price comparable with that of private printers under proper security measures which the
Commission shall adopt. The Commission may contract the services of private printers upon certification
by the National Printing Office/ Bangko Sentral ng Pilipinas that it cannot meet the printing
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requirements. Accredited political parties and deputized citizens' arms of the Commission may assign
watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial
number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive
hardware and shall be impossible to reproduce on a photocopying machine, and that identification
marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot
for every registered voter with a provision of additional four (4) ballots per precinct.
Sec. 12. Substitution of candidates. In case of valid substitutions after the official ballots have been
printed, the votes cast for the substituted candidates shall be considered votes for the substitutes.
Sec. 13. Ballot box. There shall be in each precinct on election day a ballot box with such safety
features that the Commission may prescribe and of such size as to accommodate the official ballots
without folding them.
For the purpose of the May 11, 1998 elections, there shall be two (2) ballot boxes for each precinct, one
(1) for the national ballots and one (I) for the local ballots.
Sec. 14. Procedure in voting. The voter shall be given a ballot by the chairman of the Board of
Election Inspectors. The voter shall then proceed to a voting booth to accomplish his/her ballot.
If a voter spoils his/her ballot, he/she may be issued another ballot subject to Sec. 11 of this Act. No
voter may be allowed to change his/her ballot more than once.
After the voter has voted, he/she shall affix his/her thumbmark on the corresponding space in the
voting record. The chairman shall apply indelible ink on the voter's right forefinger and affix his/her
signature in the space provided for such purpose in the ballot. The voter shall then personally drop
his/her ballot on the ballot box.
For the purpose of the May 11, 1998 elections, each voter shall be given one (1) national and one (1)
local ballot by the Chairperson. The voter shall, after casting his/her vote, personally drop the ballots in
their respective ballot boxes.
Sec. 15. Closing of polls. After the close of voting, the board shall enter in the minutes the number of
registered voters who actually voted, the number and serial number of unused and spoiled ballots, the
serial number of the self-locking metal seal to be used in sealing the ballot box. The board shall then
place the minutes inside the ballot box and thereafter close, lock and seal the same with padlocks, self-
locking metal seals or any other safety devices that the Commission may authorize. The chairman of the
Board of Election Inspectors shall publicly announce that the votes shall be counted at a designated
counting center where the board shall transport the ballot box containing the ballots and other election
documents and paraphernalia.
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For the purpose of the May 11, 1998 elections, the chairman of the Board of Election Inspectors shall
publicly announce that the votes for president, vice-president, senators and parties, organizations or
coalitions participating in the party-list system shall be counted at a designated counting center. During
the transport of the ballot box containing the national ballots and other documents, the fourth member
of the board shall be escorted by representatives from the Armed Forces of the Philippines or from the
Philippine National Police, citizens' arm, and if available, representatives of political parties and
candidates.
Sec. 16. Designation of Counting Centers. The Commission shall designate counting center(s) which
shall be a public place within the city/municipality or in such other places as may be designated by the
Commission when peace and order conditions so require, where the official ballots cast in various
precincts of the city/municipality shall be counted. The election officer shall post prominently in his/her
office, in the bulletin boards at the city/municipal hall and in three (3) other conspicuous places in the
city/municipality, the notice on the designated counting center(s) for at least fifteen (15) days prior to
election day.
For the purpose of the May 11, 1998 elections, the Commission shall designate a central counting
center(s) which shall be a public place within the city or municipality, as in the case of the National
Capital Region and in highly urbanized areas. The Commission may designate other counting center(s)
where the national ballots cast from various precincts of different municipalities shall be counted using
the automated system. The Commission shall post prominently a notice thereof, for at least fifteen (15)
days prior to election day, in the office of the election officer, on the bulletin boards at the municipal
hall and in three (3) other conspicuous places in the municipality.
Sec. 17. Counting procedure. (a) The counting of votes shall be public and conducted in the
designated counting center(s).
(b) The ballots shall be counted by the machine by precinct in the order of their arrival at the counting
center. The election officer or his/her representative shall log the sequence of arrival of the ballot boxes
and indicate their condition. Thereafter, the board shall, in the presence of the watchers and
representatives of accredited citizens' arm, political parties/candidates, open the ballot box, retrieve the
ballots and minutes of voting. It shall verify whether the number of ballots tallies with the data in the
minutes. If there are excess ballots, the poll clerk, without looking at the ballots, shall publicly draw out
at random ballots equal to the excess and without looking at the contents thereof, place them in an
envelope which shall be marked "excess ballots". The envelope shall be sealed and signed by the
members of the board and placed in the compartment for spoiled ballots.
(c) The election officer or any authorized official or any member of the board shall feed the valid ballots
into the machine without interruption until all the ballots for the precincts are counted.
(d) The board shall remain at the counting center until all the official ballots for the precinct are counted
and all reports are properly accomplished.
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For the purpose of the May 11, 1998 elections, the ballots shall be counted by precinct by the special
members of the board in the manner provided in paragraph (b) hereof.
Sec. 18. Election returns. After the ballots of the precincts have been counted, the election officer or
any official authorized by the Commission shall, in the presence of watchers and representatives of the
accredited citizens' arm, political parties/ candidates, if any, store the results in a data storage device
and print copies of the election returns of each precinct. The printed election returns shall be signed and
thumbmarked by the fourth member and COMELEC authorized representative and attested to by the
election officer or authorized representative. The Chairman of the Board shall then publicly read and
announce the total number of votes obtained by each candidate based on the election returns.
Thereafter, the copies of the election returns shall be sealed and placed in the proper envelopes for
distribution as follows:
A. In the election of president, vice-president, senators and party-list system:
(1) The first copy shall be delivered to the city or municipal board of canvassers;
(2) The second copy, to the Congress, directed to the President of the Senate;
(3) The third copy, to the Commission;
(4) The fourth copy, to the citizens' arm authorized by the Commission to conduct an unofficial count. In
the conduct of the unofficial quick count by any accredited citizens' arm, the Commission shall
promulgate rules and regulations to ensure, among others, that said citizens' arm releases in the order
of their arrival one hundred percent (100%) results of a precinct indicating the precinct, municipality or
city, province and region: Provided, however, that, the count shall continue until all precincts shall have
been reported.
(5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with
law;
(6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with
law; and
(7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots.
The citizens' arm shall provide copies of the election returns at the expense of the requesting party.
For the purpose of the May 11, 1998 elections, after the national ballots have been counted, the
COMELEC authorized representative shall implement the provisions of paragraph A hereof.

B. In the election of local officials and members of the House of Representatives:
(1) The first copy shall be delivered to the city or municipal board of canvassers;
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(2) The second copy, to the Commission;
(3) The third copy, to the provincial board of canvassers;
(4) The fourth copy, to the citizens' arm authorized by the Commission to conduct an unofficial count. In
the conduct of the unofficial quick count by any accredited citizens' arm, the Commission shall
promulgate rules and regulations to ensure, among others, that said citizens' arm releases in the order
of their arrival one hundred percent (100%) results of a precinct indicating the precinct, municipality or
city, province and region: Provided, however, That, the count shall continue until all precincts shall have
been reported.
(5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with
law;
(6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with
law; and
(7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots.
The citizens' arm shall provide copies of election returns at the expense of the requesting party.
After the votes from all precincts have been counted, a consolidated report of votes for each candidate
shall be printed.
After the printing of the election returns, the ballots shall be returned to the ballot box, which shall be
locked, sealed and delivered to the city/municipal treasurer for safekeeping. The treasurer shall
immediately provide the Commission and the election officer with a record of the serial numbers of the
ballot boxes and the corresponding metal seals.
Sec. 19. Custody and accountability of ballots. The election officer and the treasurer of the
city/municipality as deputy of the Commission shall have joint custody and accountability of the official
ballots, accountable forms and other election documents as well as ballot boxes containing the official
ballots cast. The ballot boxes shall not be opened for three (3) months unless the Commission orders
otherwise.
Sec. 20. Substitution of Chairman and Members of the Board of Canvassers. In case of non-
availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman,
the Commission shall appoint as substitute, a ranking lawyer of the Commission. With respect to the
other members of the board, the Commission shall appoint as substitute the following in the order
named: the provincial auditor, the register of deeds, the clerk of court nominated by the executive judge
of the regional trial court, or any other available appointive provincial official in the case of the
provincial board of canvassers; the officials in the city corresponding to those enumerated in the case of
the city board of canvassers; and the municipal administrator, the municipal assessor, the clerk of court
nominated by the judge of the municipal trial court, in the case of the municipal board of canvassers.
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Sec. 21. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. The city or
municipal board of canvassers shall canvass the votes for the president, vice-president, senators, and
parties, organizations or coalitions participating under the party-list system by consolidating the results
contained in the data storage devices used in the printing of the election returns. Upon completion of
the canvass, it shall print the certificate of canvass of votes for president, vice-president, senators and
members of the House of Representatives and elective provincial officials and thereafter, proclaim the
elected city or municipal officials, as the case may be.
The city board of canvassers of cities comprising one (1) or more legislative districts shall canvass the
votes for president, vice-president, senators, members of the House of Representatives and elective city
officials by consolidating the results contained in the data storage devices used in the printing of the
election returns. Upon completion of the canvass, the board shall print the canvass of votes for
president, vice-president, and senators and thereafter, proclaim the elected members of the House of
Representatives and city officials.
In the Metro Manila area, each municipality comprising a legislative district shall have a district board of
canvassers which shall canvass the votes for president, vice-president, senators, members of the House
of Representatives and elective municipal officials by consolidating the results contained in the data
storage devices used in the printing of the election returns. Upon completion of the canvass, it shall
print the certificate of canvass of votes for president, vice-president, and senators and thereafter,
proclaim the elected members of the House of Representatives and municipal officials.
Each component municipality in a legislative district in the Metro Manila area shall have a municipal
board of canvassers which shall canvass the votes for president, vice-president, senators, members of
the House of Representatives and elective municipal officials by consolidating the results contained in
the data storage devices used in the printing of the election returns. Upon completion of the canvass, it
shall prepare the certificate of canvass of votes for president, vice-president, senators, members of the
House of Representatives and thereafter, proclaim the elected municipal officials.
The district board of canvassers of each legislative district comprising two (2) municipalities in the Metro
Manila area shall canvass the votes for president, vice-president, senators and members of the House of
Representatives by consolidating the results contained in the data storage devices submitted by the
municipal board of canvassers of the component municipalities. Upon completion of the canvass, it shall
print a certificate of canvass of votes for president, vice-president and senators and thereafter, proclaim
the elected members of the House of Representatives in the legislative district.
The district/provincial board of canvassers shall canvass the votes for president, vice-president,
senators, members of the House of Representatives and elective provincial officials by consolidating the
results contained in the data storage devices submitted by the board of canvassers of the municipalities
and component cities. Upon completion of the canvass, it shall print the certificate of canvass of votes
for president, vice-president and senators and thereafter, proclaim the elected members of the House
of Representatives and the provincial officials.
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The municipal, city, district and provincial certificates of canvass of votes shall each be supported by a
statement of votes.
The Commission shall adopt adequate and effective measures to preserve the integrity of the data
storage devices at the various levels of the boards of canvassers.
Sec. 22. Number of copies of Certificates of Canvass of Votes and their distribution. (a) The
certificate of canvass of votes for president, vice-president, senators, members of the House of
Representatives, parties, organizations or coalitions participating under the party-list system and
elective provincial officials shall be printed by the city or municipal board of canvassers and distributed
as follows:
(1) The first copy shall be delivered to the provincial board of canvassers for use in the canvass of
election results for president, vice-president, senators, members of the House of Representatives,
parties, organizations or coalitions participating under the party-list system and elective provincial
officials;
(2) The second copy shall be sent to the Commission;
(3) The third copy shall be kept by the chairman of the board; and
(4) The fourth copy shall be given to the citizens' arm designated by the Commission to conduct an
unofficial count. It shall be the duty of the citizens' arm to furnish independent candidates copies of the
certificate of canvass at the expense of the requesting party.
The board of canvassers shall furnish all registered parties copies of the certificate of canvass at the
expense of the requesting party.
(b) The certificate of canvass of votes for president, vice-president and senators, parties, organizations
or coalitions participating under the party-list system shall be printed by the city boards of canvassers of
cities comprising one or more legislative districts, by provincial boards of canvassers and by district
boards of canvassers in the Metro Manila area, and other highly urbanized areas and distributed as
follows:
(1) The first copy shall be sent to Congress, directed to the President of the Senate for use in the canvas
of election results for president and vice-president;
(2) The second copy shall be sent to the Commission for use in the canvass of the election results for
senators;
(3) The third copy shall be kept by the chairman of the board; and
(4) The fourth copy shall be given to the citizens' arm designated by the Commission to conduct an
unofficial count. It shall be the duty of the citizens' arm to furnish independent candidates copies of the
certificate of canvass at the expense of the requesting party.
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The board of canvassers shall furnish all registered parties copies of the certificate of canvass at the
expense of the requesting party.
(c) The certificates of canvass printed by the provincial, district, city or municipal boards of canvassers
shall be signed and thumbmarked by the chairman and members of the board and the principal
watchers, if available. Thereafter, it shall be sealed and placed inside an envelope which shall likewise be
properly sealed.
In all instances, where the Board of Canvassers has the duty to furnish registered political parties with
copies of the certificate of canvass, the pertinent election returns shall be attached thereto, where
appropriate.
Sec. 23. National Board of Canvassers for Senators. The chairman and members of the Commission
on Elections sitting en banc, shall compose the national board of canvassers for senators. It shall canvass
the results for senators by consolidating the results contained in the data storage devices submitted by
the district, provincial and city boards of canvassers of those cities which comprise one or more
legislative districts. Thereafter, the national board shall proclaim the winning candidates for senators.
Sec. 24. Congress as the National Board of Canvassers for President and Vice-President. The Senate
and the House of Representatives in joint public session shall compose the national board of canvassers
for president and vice-president. The returns of every election for president and vice-president duly
certified by the board of canvassers of each province or city, shall be transmitted to the Congress,
directed to the president of the Senate. Upon receipt of the certificates of canvass, the president of the
Senate 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 and the Congress upon
determination of the authenticity and the due execution thereof in the manner provided by law, canvass
all the results for president and vice-president by consolidating the results contained in the data storage
devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the
winning candidates for president and vice-president.
Sec. 25. Voters' education. The Commission together with and in support of accredited citizens' arms
shall carry out a continuing and systematic campaign through newspapers of general circulation, radio
and other media forms, as well as through seminars, symposia, fora and other non-traditional means to
educate the public and fully inform the electorate about the automated election system and inculcate
values on honest, peaceful and orderly elections.
Sec. 26. Supervision and control. The System shall be under the exclusive supervision and control of
the Commission. For this purpose, there is hereby created an information technology department in the
Commission to carry out the full administration and implementation of the System.
The Commission shall take immediate steps as may be necessary for the acquisition, installation,
administration, storage, and maintenance of equipment and devices, and to promulgate the necessary
rules and regulations for the effective implementation of this Act.
14

Sec. 27. Oversight Committee. An Oversight Committee is hereby created composed of three (3)
representatives each from the Senate and the House of Representatives and three (3) from the
Commission on Elections to monitor and evaluate the implementation of this Act. A report to the Senate
and the House of Representatives shall be submitted within ninety (90) days from the date of election.
The oversight committee may hire competent consultants for project monitoring and information
technology concerns related to the implementation and improvement of the modern election system.
The oversight committee shall be provided with the necessary funds to carry out its duties.
Sec. 28. Designation of other dates for certain pre-election acts. If it shall no longer be reasonably
possible to observe the periods and dates prescribed by law for certain pre-election acts, the
Commission shall fix other periods and dates in order to ensure accomplishment of the activities so
voters shall not be deprived of their suffrage.
Sec. 29. Election offenses. In addition to those enumerated in Sec.s 261 and 262 of Batas Pambansa
Blg. 881, As Amended, the following acts shall be penalized as election offenses, whether or not said
acts affect the electoral process or results:
(a) Utilizing without authorization, tampering with, destroying or stealing:
(1) Official ballots, election returns, and certificates of canvass of votes used in the System; and
(2) Electronic devices or their components, peripherals or supplies used in the System such as counting
machine, memory pack/diskette, memory pack receiver and computer set;
(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of
computer counting devices and the processing, storage, generation and transmission of election results,
data or information; and
(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program,
system software, network, or any computer-related devices, facilities, hardware or equipment, whether
classified or declassified.
Sec. 30. Applicability. The provisions of Batas Pambansa Blg. 881, As Amended, otherwise known as
the "Omnibus Election Code of the Philippines", and other election laws not inconsistent with this Act
shall apply.
Sec. 31. Rules and Regulations. The Commission shall promulgate rules and regulations for the
implementation and enforcement of this Act including such measures that will address possible
difficulties and confusions brought about by the two-ballot system. The Commission may consult its
accredited citizens' arm for this purpose.
Sec. 32. Appropriations. The amount necessary to carry out the provisions of this Act shall be charged
against the current year's appropriations of the Commission. Thereafter, such sums as may be necessary
15

for the continuous implementation of this Act shall be included in the annual General Appropriations
Act.
In case of deficiency in the funding requirements herein provided, such amount as may be necessary
shall be augmented from the current contingent fund in the General Appropriations Act.
Sec. 33. Separability clause. If, for any reason, any Sec. or provision of this Act or any part thereof, or
the application of such Sec., provision or portion is declared invalid or unconstitutional, the remainder
thereof shall not be affected by such declaration.
Sec. 34. Repealing clause. All laws, presidential decrees, executive orders, rules and regulations or
parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.
Sec. 35. Effectivity. This Act shall take effect fifteen (15) days after its publication in a newspaper of
general circulation.

Elections: Pre-Proclamation Controversy
Sec. 241, B.P. 881: A pre-proclamation controversy refers to any question pertaining to or affecting the
proceedings of the board of canvassers which may be raised by any candidate or by any registered
political party or coalition of political parties before the board or directly with the Commission, or any
matter raised under Sections 233 (delayed lost or destroyed), 234 (material defects), 235 (tampering or
falsification) and 236 (discrepancies in election returns) in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.

Q: When is a pre-proclamation case allowed?
A: It is allowed in cases involving elective provincial, city or municipal officers. Pre-proclamation cases in
elections for President, Vice-, Senator, Congressman and Party-List are not allowed on matters relating
to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of
canvass. But the canvassing board may correct manifest errors in the Certificates of Canvass or Election
Returns, motu propio or upon verified petition of an interested person. (sec. 15, R.A. 7166)


WHO CAN FILE: candidate, registered political party or coalition

WHERE FILED: Board of Canvassers or COMELEC in division


Is the COMELEC in a pre-proclamation case allowed to go beyond the face of the election returns?
Belac v. COMELEC, G.R. No. 145802, April 4, 2001
16


The Supreme Court held that Diasens petition pertains to a pre-proclamation controversy. Specifically,
it alleges that the votes for petitioner Belac were all padded through Operation Dagdag; the election
returns for him (Diasen) was tampered, falsified and manufactured; and that the election returns were
already prepared even before the counting of votes. But Diasen did not say that the alleged irregularities
appear on the face of the election returns. Obviously, they came from external sources and, therefore,
not manifest on the election returns.

In a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the
election returns and is without jurisdiction to go beyond or behind them and investigate election
irregularities. The prevailing doctrine is that as long as the returns appear to be authentic and duly
accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting or the counting of the votes. The reason is that determination
of the result of the election must be arrived at as quickly as possible on the basis of the canvass.

A party seeking to raise issues resolution of which would compel or necessitate COMELEC to pierce the
veil of election returns, which appear prima facie regular on their face, has his proper remedy in a
regular election protest. By their very nature, and given the obvious public interest in the speedy
determination of the results of elections, pre-proclamation controversies are to be resolved in summary
proceedings without the need to present evidence aliunde and certainly without having to go through
voluminous documents and subjecting them to meticulous technical examinations which take up
considerable time.

Issues That May Be Raised

Sec. 243, B.P. 881: The following shall be proper issues that may be raised in a pre-proclamation
controversy:
Illegal composition or proceedings of the board of canvassers:
When majority or all members of the canvassing Board do not hold legal appointments or are in
fact usurpers
When the canvassing has been a mere ceremony that was pre-determined and manipulated to
result in nothing but a sham canvassing as were: (1) there was convergence of circumstances of
precipitate canvassing; (2) there was terrorism; (3) there was lack of sufficient notice to the
members of the canvassing Board; (4) disregard of manifest irregularities on the face of the
questioned returns/certificates in appropriate cases
The canvassed election returns are incomplete, contain material defects, appear to be tampered
with or falsified, or contain discrepancies in the same returns or in other authentic copies
thereof as mentioned in Sections 233, 234, 235, and 236 of this Code
17

The election returns were prepared under duress, threats, coercion, or intimidation, or they are
obviously manufactured or not authentic
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.

Q: May there be other issues which may be properly subjects of a pre-proclamation controversy?
A: No, because the enumeration under sec. 243 is restrictive and exclusive. NEVERTHELESS, the
Commission has authority to correct manifest errors in the tabulation or tallying of the results during the
canvassing and such errors could not have been discovered during the canvassing despite the exercise of
due diligence and proclamation of the winning candidate had already been made (filed directly with the
COMELEC en banc not later than 5 days from date of proclamation, impleading all candidates who may
be adversely affected). HOWEVER if the manifest error was discovered before proclamation during
canvassing, then its correction may be filed with the canvassing Board.

Q: What issues must be raised with the Board at the first instance and not directly with the COMELEC?
A: Matters raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the elections returns.


WHEN PRE-PROCLAMATION CONTROVERSIES FILED DIRECTLY WITH COMELEC
1. Canvassing Board begins to act as such
2. At the time of the appointment of the member whose capacity to sit as such is objected to if it
comes after the canvassing of the board
3. Immediately at the point where the proceedings are or begin to be illegal. In which case, the
canvassing board shall not commence, proceed or resume the canvass unless otherwise ordered
by the COMELEC

WHEN TO FILE WITH THE BOARD
1. Canvassing board begins to act as such
2. Immediately at the point where the proceedings are or begin to be illegal

NOTA BENE: If an appeal from the ruling of the Board is taken to the COMELEC, the canvass shall be
immediately suspended during pendency of appeal until the COMELEC orders continuation or
resumption.
18


PROCEDURE BEFORE CANVASSING BOARD ON GROUND OF ILLEGAL COMPOSITION/PROCEEDING:
1. Make a ruling, with notice to the petitioner, within 24 hours from the filing of the petition
2. Appeal to the COMELEC within 3 days after the ruling with proper notice to the canvassing
Board
3. Hearing by COMELEC en banc with due notice to the parties
4. Decide the case within 5 days from filing thereof


Defects in form not a ground for pre-proclamation controversy
Bandala vs. COMELEC, G.R. No. 159369, March 7, 2000

The absence of inner paper seals, although illegal, the paper seals being required in the conduct of
proper canvassing of election returns, is not a proper subject of pre-proclamation controversies because
such absence does not affect the authenticity or genuineness of the subject election returns. They are
merely defects in form which do not warrant the exclusion of the questioned returns.

Excluded Issues

No exclusion if returns are regular on its face
Ocampo vs. COMELEC, G.R. No. 136282, Feb. 15, 2000

To check and double check if it were true that the contested election returns were tampered with,
altered or falsified, the COMELEC en banc examined two separate copies of the election returns: (1) the
copy for the Municipal Board of Canvassers and (2) the COMELEC copy, and found that the defects
alleged are merely formal defects. Specifically, the findings are as follows:
no number of registered voters in the precinct, actual number of votes cast and number of valid
votes cast: formal defect is not a ground for exclusion
no thumb mark of the chairman on page 4 and of members of the board of election inspectors
on page 3 of the election returns: a mere oversight that did not vitiate the validity of the votes
nor destroy the integrity of the election return
one missing vote with 153 voters who actually voted and one candidate receiving 152 votes
but zero for the other candidate: this does not necessarily mean that 1 vote is missing because it
19

could also mean that one voter desisted from casting his vote or may have voted but his vote
was not credited because it was stray or just illegible; not a ground for exclusion

That the election returns were obviously manufactured must be evident from the face of said
documents. In the absence of strong evidence establishing spuriousness of the returns, the basic rule
that the election returns shall be accorded prima facie status as bona fide reports of the results of the
count of the votes for canvassing and proclamation purposes must perforce prevail.

The bare fact that candidates for public office had received zero votes is not enough to make the returns
statistically improbable.

For as long as the election returns which on their face appear regular and wanting of any physical signs
of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded.
To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the
case at bar.
Comelec may rule on manner of preparation of the returns, but no exclusion, just recounting if integrity
of ballots was violated
Dagloc vs. COMELEC, G.R. No. 154442-47, Dec. 10, 2003
Dagloc is questioning the ruling of the COMELEC en banc to exclude certain election returns for being
spurious due in part to the alleged disqualification of some members of the board of election inspectors
(BEI) and that the BEI committed illegal acts, such that the votes reported in the subject returns do not
reflect the true will of the electorate. However, in arriving at the resolution, the COMELEC en banc also
gave great weight to the affidavit of the BEI members which were supposed to prove the regularity of
the BEIs assigned task. The COMELEC en banc found that these affidavits lacked signatures of the BEI
members.

The Supreme Court held that pre-proclamation controversies are limited to: (1) challenges directed
against the composition or proceedings of the board of canvassers (not the BEI), or (2) challenges
related to election returns to which a party must have made specific objections. This case falls under the
second category (2) and that the COMELEC en bancs findings on the nine election returns are anchored
on the manner of their preparation, which it found to be a sham. This ground is a pre-proclamation
issue under sec. 241 and 243 in relation to sec. 235.

Furthermore, the doctrine that as long as the returns appear to be authentic, and duly accomplished on
their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of
irregularities in the casting and counting of the votes, is not applicable in this case due to the following
reasons: (1) the COMELEC has authority to review the rulings of the Board of Canvassers in a pre-
proclamation controversy; (2) the COMELEC en banc found that the nine election returns are fraudulent
in the manner of their preparation; and (3) the allegations of irregularity is not in the casting and
counting of votes but in the preparation of the election returns (tampered, falsified and were prepared
20

under duress, threats, coercion and intimidation).

Given this factual finding, doubt is cast on the authentic appearance of said returns. Hence, the subject
election returns cannot be accorded prima facie status as genuine reports of the results of the counts of
votes.

However, the proper remedy in case of spurious election returns is not outright exclusion on the ground
that they were fraudulently prepared by some members or non-members of the BEI. Doing so would
disenfranchise the voters. What the COMELEC should have done is to ascertain whether the integrity of
the ballots was violated. If it was not, then a recounting of ballots is in order and Board will use new
returns. If it was violated, then the COMELEC need not recount but should seal the ballot box and order
its safekeeping.

COMELEC has no jurisdiction over pre-proclamation controversies in presidential, vice-presidential,
senatorial and congressional elections; Correction of Manifest Error in the Statement of Votes may be
filed directly with COMELEC en banc
Sandoval vs. COMELEC, G.R. No. 133842, Jan. 26, 2000
The case involves the elective office of congressman of one legislative district, which is contested on the
ground of manifest error arising from the non-inclusion of 19 election returns in the canvass, thus
making the same incomplete.

While the COMELEC has exclusive jurisdiction over all pre-proclamation controversies, the exception to
the general rule can be found under sec. 15 of RA 7166 which prohibits candidates in the presidential,
vice-presidential, senatorial and congressional elections from filing pre-proclamation cases.

The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might
result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the
exception. The second sentence of Sec. 15 allows the filing of petitions for correction of manifest errors
in the certificate of canvass or election returns even in elections for president, vice-president and
members of the House for the simple reason that the correction of manifest error will not prolong the
process of canvassing nor delay the proclamation of the winner in the election.

Correction of a manifest error in the Statement of Votes may be filed directly with the COMELEC en banc
(rule 27, sec. 5, 1993 Rules of the COMELEC). This is another exception to the rule that pre-proclamation
controversies must first be heard and decided by a division of the Commission.

In determination of the case, the COMELEC must observe due process of law since this involves the
exercise of its quasi-judicial power.
21


GROUNDS FOR CORRECTION OF MANIFEST ERRORS IN THE TABULATION/TALLYING OF RESULTS DURING
CANVASSING:
1. Where a copy of the election returns or certificate of canvass was tabulated more than once
2. Where two or more copies of the election returns of one precinct were tabulated separately
3. Where there was a mistake in the copying of the figures from the election returns to the
statement of votes by precinct or from the municipal/city Certificate of Canvass to the
Statement of Votes by municipality; or from the Provincial/City Certificate of Canvass to the
Statement of Votes by province/city
4. Where there was a mistake in the addition of the votes of any candidate


PROCEDURE BEFORE THE CANVASSING BOARD:
1. Correct the manifest errors motu propio or upon verified petition by any candidate, political
party, organization, coalition, after due notice and hearing
2. Order of promulgation which must be in writing
3. Appeal to the COMELEC within 24 hours from the promulgation
4. No proclamation of winning candidate during pendency of appeal, UNLESS the votes are not
affected by the appeal
5. Appeal must implead as respondents the canvassing Board and all parties who may be adversely
affected
6. Clerk of Court of COMELEC issues summons, with copy of the appeal to the respondents
7. Clerk sets appeal for hearing
8. COMELEC decides en banc
Distinguished from Other Remedies

Pre-proclamation controversy vs. Failure of Election
Ampatuan vs. COMELEC, G.R. No. 149803, Jan. 31, 2002
This case involves the election of provincial officials which are claimed to be completely sham and
farcical. The ballots were filled up en masse by a few persons the night before election day, and in
some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at
all. There was also an allegation of massive fraud and terrorism. Consequently, a petition with the
COMELEC for the annulment of election results and/or declaration of failure of elections was filed. The
22

question is whether or not declaration of failure of elections is the proper remedy.

The Supreme Court ruled that a pre-proclamation controversy is not the same as an action for
annulment of election results or failure of elections. While, however, the COMELEC is restricted, in pre-
proclamation cases, to an examination of the election returns on their face and is without jurisdiction to
go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to
investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for
annulment of election results or for declaration of failure of elections. Thus, the COMELEC, in the case of
actions for annulment of election returns or declaration of failure of elections, may conduct technical
examination of election documents and compare and analyze voters signature and thumbprints in
order to determine whether or not the elections had indeed been free, honest and clean.

In this case, the proper remedy was annulment of election results and/or declaration of failure of
elections which is cognizable under the exclusive jurisdiction of the COMELEC.

Pre-proclamation Controversy vs. Election Contest
Sarangani vs. COMELEC, G.R. No. 155560-62, Nov. 11, 2003
This case involves two rulings of the Provincial Board of Canvassers, signed by only two of its members.
The rulings excluded Certificates of Canvass from the municipalities of Wao and Bubong on the ground
that they were manufactured and falsified. Consequently, the COMELEC directed an investigation to be
conducted on the two members of the Provincial Board of Canvassers for any culpable violation of the
election laws which they might have committed by the following acts: (1) their failure to appear on the
scheduled hearings/meetings in the instant cases after the suspension of the canvass despite their
assurances and legal duty to do so; (2) their having issued the alleged written rulings excluding the COCs
from Wao and Bubong without giving the Vice-Chairman the opportunity to participate and take part in
the deliberations; and (3) their unprecedented act of deliberating and/or issuing the written rulings by
themselves and of clandestinely submitting or turning over the said rulings to the Office of the COMELEC
Secretary for promulgation without setting any hearing or giving notice to the Vice-Chairman and/or to
the herein parties.

The Supreme Court upheld the findings of the COMELEC during its investigation that the alleged
tampering and falsification in the Certificates of Canvass were duly accounted for and did not affect the
integrity of the ballot.

In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look
beyond or behind the election returns which are on their face regular and authentic. Where a party
seeks to raise issues the resolution on which would necessitate the COMELEC to pierce the veil of
election returns which are prima facie regular, the proper remedy would be a regular election protest
and not a pre-proclamation controversy.
23


Pre-proclamation Controversy is summary in nature
Lucman vs. COMELEC, G.R. No. 166229, June 29, 1995

In this case, the objections initially raised before the Municipal Board of Canvassers were proper in a
pre-proclamation controversy, i.e. the election returns are obviously manufactured and/or falsified, it is
not authentic, it contains alterations. However, in the appeal to the COMELEC, it was further alleged
that the elections held in the precincts were tainted with massive election irregularities, such as
massive substitution of voters, snatching of ballots from the voters and filling them (ballots) up against
the will of the voters by force or coercion, threats, intimidation, casting of votes by double registrants in
the same precincts and flying voters.

These allegations pertain not only to the preparation, transmission, receipt, custody and appreciation of
the election returns, but to the conduct of the elections as well.

Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and
proceedings before said Board relating to particular election returns to which private respondent should
have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy
is limited to an examination of the election returns on their face. It is beyond the COMELECs jurisdiction
to go beyond the face of the returns or investigate election irregularities.

The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence
aliunde is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution
of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear
to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues
should be posed and resolved in a regular election protest, which is within the original jurisdiction of the
Regional Trial Court. In a regular election protest, the parties may litigate all the legal and factual issues
raised by them inasmuch detail as they may deem necessary or appropriate.

Procedure for Raising Objections
Sec. 20, RA 7166: Procedure in Disposition of Contested Election Returns. -

(a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in
the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234,
235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the
chairman of the board of canvassers 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 board of canvassers shall automatically defer the canvass of
24

the contested returns (also indicate the date and time of receipt) and shall proceed to canvass the
returns which are not contested by any party (i.e. the votes for President, Vice-, Senators, Congressmen
and party-list).

(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 Commission. 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 Commission, attaching thereto supporting
evidence, if any. The board 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 board by the chairman affixing his signature at the back of
each and every page thereof.

(d) Upon receipt of the evidence, the board shall keep up the contested returns, consider the written
objections thereto and opposition, if any, and summarily and immediately rules thereon. The board 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 board shall immediately inform the board if he
intends to appeal said ruling. The board 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
board shall suspend the canvass. Within forty-eight (48) hours, therefrom, any party adversely affected
by the ruling may file with the board a written and verified notice of appeal; and within an unextendible
period of five (5) days thereafter an appeal may be taken to the Commission.

(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the
Commission, elevating therewith the complete records 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 board, the Commission shall decide
summarily the appeal within seven (7) days from receipt of said record and evidence. Any appeal
brought before the Commission on the ruling of the board, without the accomplished forms and the
evidence appended thereto, shall be summarily dismissed.

The decision of the Commission shall be executory after the lapse of seven (7) days from receipts
thereof by the losing party.

25

(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission 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.

Q: What remedy does one have if a proclamation is made pending pre-proclamation petition/appeal?
A: A petition to annul proclamation filed with the COMELEC.

Q: What is the remedy if the pre-proclamation petition/appeal is finally dismissed by the COMELEC
and the opposing candidate is proclaimed?
A: Election protest filed within 10 days from the date of proclamation.


















26

We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11
September 2009 (Decision).

The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008
of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second
Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao
del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA
8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial
evidence against Penera for violation of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as admitting
she engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a candidate as any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy x x x. The second sentence,
third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that [a]ny
person who files his certificate of candidacy within [the period for filing] shall only be considered as
a candidate at the start of the campaign period for which he filed his certificate of candidacy. The
immediately succeeding proviso in the same third paragraph states that unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period. These two provisions determine the resolution of this case.

The Decision states that [w]hen the campaign period starts and [the person who filed his certificate
of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already
consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified.
[1]


27

Under the Decision, a candidate may already be liable for premature campaigning after the filing of
the certificate of candidacy but even before the start of the campaign period. From the filing of the
certificate of candidacy, even long before the start of the campaign period, the Decision considers the
partisan political acts of a person so filing a certificate of candidacy as the promotion of his/her
election as a candidate. Thus, such person can be disqualified for premature campaigning for acts
done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a candidate even before the start of the campaign period.

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,
[2]
which held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election
Code are: (1) a person engages in an election campaign or partisan political activity; (2)
the act is designed to promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a candidate. Under Section 79(a), a
candidate is one who has filed a certificate of candidacy to an elective public office.
Unless one has filed his certificate of candidacy, he is not a candidate. The third element
requires that the campaign period has not started when the election campaign or partisan
political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last
day, which under Section 75 of the Omnibus Election Code is the day before the start of the
campaign period, then no one can be prosecuted for violation of Section 80 for acts done
prior to such last day. Before such last day, there is no particular candidate or candidates to
campaign for or against. On the day immediately after the last day of filing, the campaign
period starts and Section 80 ceases to apply since Section 80 covers only acts done outside
the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may
only apply to acts done on such last day, which is before the start of the campaign period and
after at least one candidate has filed his certificate of candidacy. This is perhaps the reason
why those running for elective public office usually file their certificates of candidacy on the
last day or close to the last day.
There is no dispute that Eusebios acts of election campaigning or partisan political
activities were committed outside of the campaign period. The only question is whether
Eusebio, who filed his certificate of candidacy on 29 December 2003, was a candidate
when he committed those acts before the start of the campaign period on 24 March 2004.
28

Section 11 of Republic Act No. 8436 (RA 8436) moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline was
moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is:
did this change in the deadline for filing the certificate of candidacy make one who filed his
certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80
if he engaged in election campaign or partisan political activities prior to the start of the
campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. The Commission shall prescribe
the size and form of the official ballot which shall contain the titles of the
positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names of
candidates shall be arranged alphabetically by surname and uniformly
printed using the same type size. A fixed space where the chairman of
the Board of Election Inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/ manifestation to participate in the election shall not be later than one
hundred twenty (120) days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the one which he/she is holding
in a permanent capacity, except for president and vice-president, shall be deemed resigned
only upon the start of the campaign period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall
take effect upon the start of the aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy
for the positions of President, Vice-President, Senators and candidates under the party-list
system as well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may contract
the services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties
and deputized citizens arms of the Commission may assign watchers in the printing, storage
and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the serial number on the ballot stub shall be
printed in magnetic ink that shall be easily detectable by inexpensive
hardware and shall be impossible to reproduce on a photocopying
machine, and that identification marks, magnetic strips, bar codes and
other technical and security markings, are provided on the ballot.
29

The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered voter
with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of official ballots. This
is clear from the following deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period,
would it be the same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the
present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a
candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began
(sic).
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the
certificate will not bring about ones being a candidate.
SENATOR GONZALES. If thats a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the
certificate of candidacy will not result in that official vacating his position, we can also
provide that insofar he is concerned, election period or his being a candidate will not
yet commence. Because here, the reason why we are doing an early filing is to afford
enough time to prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House
Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate
version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
x x x x
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts
which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is
just to afford the Comelec enough time to print the ballots, this provision does not
intend to change the campaign periods as presently, or rather election periods as
presently fixed by existing law.
30

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other
prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no
conflict anymore because we are talking about the 120-day period before election as the last
day of filing a certificate of candidacy, election period starts 120 days also. So that is
election period already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of
official ballots, Eusebio filed his certificate of candidacy on 29 December 2003.
Congress, however, never intended the filing of a certificate of candidacy before 2
January 2004 to make the person filing to become immediately a candidate for
purposes other than the printing of ballots. This legislative intent prevents the immediate
application of Section 80 of the Omnibus Election Code to those filing to meet the early
deadline. The clear intention of Congress was to preserve the election periods as x x x
fixed by existing law prior to RA 8436 and that one who files to meet the early deadline
will still not be considered as a candidate.
[3]
(Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate
until the start of the campaign period. This ground was based on the deliberations of the legislators who
explained the intent of the provisions of RA 8436, which laid the legal framework for an automated
election system. There was no express provision in the original RA 8436 stating that one who files a
certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine
into law, realizing that Lanot merely relied on the deliberations of Congress in holding that

The clear intention of Congress was to preserve the election periods as x x x fixed by
existing law prior to RA 8436 and that one who files to meet the early deadline will
still not be considered as a candidate.
[4]
(Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline
required by the automated election system would be disqualified or penalized for any partisan political act
done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote
the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436,
thus:

x x x
31

For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period: Provided, finally, That any
person holding a public appointive office or position, including active members of the armed
forces, and officers and employees in government-owned or -controlled corporations, shall
be considered ipso facto resigned from his/her office and must vacate the same at the start of
the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining
supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second
sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this
Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without
repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any
portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision
considers the entire Section 15 good law. Thus, the Decision is self-contradictory reversing Lanot but
maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so
doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence,
third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of
Section 15 of RA 8436. The original provision in RA 8436 states



x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall
take effect upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word only so that the first proviso now reads

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period x x x. (Emphasis
supplied)


32

Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate only upon the start of the campaign period. This clearly
means that before the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these
provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until
the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a candidate in Section 79(a) of the Omnibus Election
Code should be read together with the amended Section 15 of RA 8436. A candidate
refers to any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited political party, aggroupment
or coalition of parties. However, it is no longer enough to merely file a certificate of
candidacy for a person to be considered a candidate because any person who files
his certificate of candidacy within [the filing] period shall only be considered a
candidate at the start of the campaign period for which he filed his certificate of
candidacy. Any person may thus file a certificate of candidacy on any day within the
prescribed period for filing a certificate of candidacy yet that person shall be considered a
candidate, for purposes of determining ones possible violations of election laws, only
during the campaign period. Indeed, there is no election campaign or partisan
political activity designed to promote the election or defeat of a particular candidate or
candidates to public office simply because there is no candidate to speak of prior to the
start of the campaign period. Therefore, despite the filing of her certificate of candidacy,
the law does not consider Penera a candidate at the time of the questioned motorcade
which was conducted a day before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12 May
2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a
candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007,
the law still did not consider Penera a candidate for purposes other than the printing of
ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a
candidate, even if constituting election campaigning or partisan political activities, are not
punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm
of a citizens protected freedom of expression. Acts committed by Penera within the
campaign period are not covered by Section 80 as Section 80 punishes only acts outside the
campaign period.
[5]


The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take
effect only upon the start of the campaign period. The Decision states that:

33

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which
provides that any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period, does not mean that the acts
constituting premature campaigning can only be committed, for which the offender may
be disqualified, during the campaign period. Contrary to the pronouncement in the
dissent, nowhere in said proviso was it stated that campaigning before the start of
the campaign period is lawful, such that the offender may freely carry out the same with
impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts
described under Section 79(b) of the Omnibus Election Code as election campaign or
partisan political activity, However, only after said person officially becomes a candidate,
at the beginning of the campaign period, can said acts be given effect as premature
campaigning under Section 80 of the Omnibus Election Code. Only after said person
officially becomes a candidate, at the start of the campaign period, can his/her
disqualification be sought for acts constituting premature campaigning. Obviously, it is
only at the start of the campaign period, when the person officially becomes a candidate, that
the undue and iniquitous advantages of his/her prior acts, constituting premature
campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only
about to begin their election campaign, a candidate who had previously engaged in
premature campaigning already enjoys an unfair headstart in promoting his/her
candidacy.
[6]
(Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by
law. This is specially true to expression or speech, which Congress cannot outlaw except on very
narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law
does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities
before the start of the campaign period are lawful. It is sufficient for Congress to state that any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period. The only inescapable and logical result is that the same acts, if done before the start
of the campaign period, are lawful.

In laymans language, this means that a candidate is liable for an election offense only for acts done
during the campaign period, not before. The law is clear as daylight any election offense that may be
committed by a candidate under any election law cannot be committed before the start of the campaign
period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start
of the campaigning, the assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified
or prosecuted only after the start of the campaign period. This is not what the law says. What the law
34

says is any unlawful act or omission applicable to a candidate shall take effect only upon the start
of the campaign period. The plain meaning of this provision is that the effective date when partisan
political acts become unlawful as to a candidate is when the campaign period starts. Before the start of
the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the
campaign period. Neither does the law state that partisan political acts done by a candidate before the
campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign
period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision,
which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law a candidate is liable for election offenses only upon the start of
the campaign period. This Court has no power to ignore the clear and express mandate of the law that
any person who files his certificate of candidacy within [the filing] period shall only be considered
a candidate at the start of the campaign period for which he filed his certificate of
candidacy. Neither can this Court turn a blind eye to the express and clear language of the law that
any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period.

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court
but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as
the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section
15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for
Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11
September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC
Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera
shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.



35

Penera vs. Commission on Elections, et al.
G.R. No. 181613
25 November 2009
(motion for reconsideration)

Facts:
On 11 September 2009, the Supreme Court affirmed the COMELECs decision to disqualify petitioner
Rosalinda Penera (Penera) as mayoralty candidate in Sta. Monica, Surigao del Norte, for engaging in
election campaign outside the campaign period, in violation of Section 80 of Batas Pambansa Blg. 881
(the Omnibus Election Code).
Penera moved for reconsideration, arguing that she was not yet a candidate at the time of the supposed
premature campaigning, since under Section 15 of Republic Act No. 8436 (the law authorizing the
COMELEC to use an automated election system for the process of voting, counting of votes, and
canvassing/consolidating the results of the national and local elections), as amended by Republic Act No.
9369, one is not officially a candidate until the start of the campaign period.
Issue:
Whether or not Peneras disqualification for engaging in premature campaigning should be
reconsidered.
Holding:
Granting Peneras motion for reconsideration, the Supreme Court En Banc held that
Penera did not engage in premature campaigning and should, thus, not be disqualified as a mayoralty
candidate. The Court said
(A) The Courts 11 September 2009 Decision (or the assailed Decision) considered a
person who files a certificate of candidacy already a candidate even before the start of the campaign
period. This is contrary to the clear intent and letter of Section 15 of Republic Act 8436, as amended,
which states that a person who files his certificate of candidacy will only be considered a candidate at
the start of the campaign period, and unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of such campaign period.
Thus, applying said law:
(1) The effective date when partisan political acts become unlawful as to a
candidate is when the campaign period starts. Before the start of the campaign
36

period, the same partisan political acts are lawful.

(2) Accordingly, a candidate is liable for an election offense only for
acts done during the campaign period, not before. In other words, election
offenses can be committed by a candidate only upon the start of the campaign
period. Before the start of the campaign period, such election offenses cannot be
so committed. Since the law is clear, the Court has no recourse but to apply it. The forum for examining
the wisdom of the law, and enacting remedial measures, is not the Court but the Legislature.
(B) Contrary to the assailed Decision, Section 15 of R.A. 8436, as amended, does not
provide that partisan political acts done by a candidate before the campaign period are unlawful, but
may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan
political acts done by a candidate before the campaign period are temporarily lawful, but becomes
unlawful upon the start of the campaign period. Besides, such a law as envisioned in the Decision, which
defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.
(C) That Section 15 of R.A. 8436 does not expressly state that campaigning before the start of the
campaign period is lawful, as the assailed Decision asserted, is of no moment. It is a basic principle of
law that any act is lawful unless expressly declared unlawful by law. The mere fact that the law does not
declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to
declare in Section 15 of R.A. 8436 that partisan political activities before the start of the campaign
period are lawful. It is sufficient for Congress to state that any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period. The only inescapable and logical
result is that the same acts, if done before the start of the campaign period, are lawful.

(D) The Courts 11 September 2009 Decision also reversed Lanot vs. COMELEC (G.R.
No. 164858; 16 November 2006). Lanot was decided on the ground that one who files a
certificate of candidacy is not a candidate until the start of the campaign period. This ground was based
on the deliberations of the legislators who explained that the early deadline for filing certificates of
candidacy under R.A. 8436 was set only to afford time to prepare the machine-readable ballots, and
they intended to preserve the existing election periods, such that one who files his certificate of
candidacy to meet the early deadline will still not be considered as a candidate.
When Congress amended R.A. 8436, Congress decided to expressly incorporate the
37

Lanot doctrine into law, thus, the provision in Section 15 of R.A. 8436 that a person who files his
certificate of candidacy shall be considered a candidate only at the start of the campaign period.
Congress wanted to insure that no person filing a certificate of candidacy under the early deadline
required by the automated election system would be disqualified or penalized for any partisan political
act done before the start of the campaign period. This provision cannot be annulled by the Court except
on the sole ground of its unconstitutionality.
The assailed Decision, however, did not claim that this provision is unconstitutional. In fact, the assailed
Decision considered the entire Section 15 good law. Thus, the Decision was self-contradictory
reversing Lanot but maintaining the constitutionality of the said provision.
G.R. No. 168253 March 16, 2007
MAYOR NOEL E. ROSAL, Petitioner,
vs.
COMMISSION ON ELECTIONS, Second Division, and MICHAEL VICTOR IMPERIAL, Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 172741 March 16, 2007
MAYOR NOEL E. ROSAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and MICHAEL VICTOR IMPERIAL, Respondents.
D E C I S I O N
CORONA, J.:
Petitioner Noel E. Rosal and private respondent Michael Victor C. Imperial were candidates for mayor of
Legaspi City in the May 10, 2004 elections. After the counting and canvassing of votes, petitioner was
proclaimed as the duly elected mayor of Legaspi City, having received 44,792 votes over private
respondents 33,747 and thereby winning by a margin of 11,045 votes.
On May 24, 2004, private respondent instituted a petition to annul the proclamation,
1
assailing the
canvass of election returns in the 520 precincts that had functioned during the election. On July 6, 2004,
the case was superseded by an election protest filed by private respondent with the Commission on
Elections (Comelec) contesting the results of the election in all 520 precincts on the grounds of
miscounting, misreading and misappreciation of votes, substitute voting, disenfranchisement of voters,
substitution and padding of votes, and other alleged irregularities. The protest was docketed as EPC No.
2004-61 and raffled to the Second Division of the Comelec.
After an initial hearing on private respondents protest and petitioners answer, the Second Division
issued on November 17, 2004 an order directing the collection of the ballot boxes from the contested
precincts and their delivery to the Comelec. On December 16, 2004, private respondent filed a
manifestation
2
apprising the Second Division of the fact that out of the 520 ballot boxes retrieved for
delivery to the Comelec, 95 had no plastic seals, 346 had broken plastic seals and only 79 remained
intact with whole plastic seals and padlocks.
Revision of the contested ballots commenced in mid-January of 2005
3
and concluded on February 2,
2005. The revision report indicated a reduction in petitioners vote count from 44,792 votes to 39,752 and
38

an increase in that of private respondent from 22,474 to 39,184 votes. Shortly thereafter, petitioner filed a
"motion for technical examination of contested ballots" on the ground that thousands of ballots revised by
the revision committees were actually spurious ballots that had been stuffed inside the ballot boxes
sometime after the counting of votes but before the revision proceedings. The Second Division denied the
motion.
After the revision, the case was set for hearing on February 24, 2005. In that hearing, private respondent
manifested that he would no longer present testimonial evidence and merely asked for time to pre-mark
his documentary evidence. On March 9, 2005, private respondent filed his formal offer of evidence,
thereby resting his case and signaling petitioners turn to present evidence in his defense.
On March 17, 2005, the first hearing set for the presentation of his evidence, petitioner was directed to
pre-mark his exhibits and formalize his intention to have his witnesses subpoenaed. Accordingly,
petitioner filed on April 11, 2005 a motion for issuance of subpoena duces tecum and ad testificandum to
witnesses whose testimonies would allegedly prove that a significant number of the revised ballots were
not the same ballots that had been read and counted by the Board of Election Inspectors (BEI) during the
election.
In an order dated April 25, 2005,
4
the Second Division ruled that the testimonies of the proposed
witnesses were "unnecessary" inasmuch as the Comelec had the authority and wherewithal to determine
by itself the ballots authenticity and, for that reason, denied the motion and directed petitioner to file
forthwith his formal offer of evidence.
Asserting his right to present evidence in his defense, petitioner filed on May 6, 2005 a motion for
reconsideration of the April 25, 2005 order. In an order dated May 12, 2005, the Second Division denied
the motion.
On June 4, 2005, petitioner filed an Ad Cautela (sic) Offer of Protestees Evidence
5
as a precautionary
measure against the foreclosure of his right to comply with the Second Divisions April 25, 2005 order.
Petitioners evidence included: (1) provincial election supervisor Serranos report that, at the time he took
custody of the ballot boxes, their security seals bore signs of having been tampered with and (2) the
affidavits of 157 BEI chairpersons who swore to the effect that the authenticating signatures on certain
ballots
6
identified and enumerated in their affidavits (that is, signatures purporting to be theirs) were clear
forgeries.
On June 15, 2005, petitioner filed in this Court a petition for certiorari
7
under Rule 65 of the Rules of Court
(docketed as G.R. No. 1628253) assailing the April 25 and May 12, 2005 orders of the Comelecs Second
Division for having been rendered with grave abuse of discretion. Petitioner complained, in substance,
that the Second Division had, by these orders, denied him due process by effectively depriving him of a
reasonable opportunity to substantiate with competent evidence his contention that the revised ballots
were not the same ballots cast and counted during the elections, meaning, the revised ballots were
planted inside the ballot boxes after the counting of votes (in place of the genuine ones) pursuant to a
fraudulent scheme to manufacture grounds for a successful election protest.
Meanwhile, the Second Division continued with the proceedings and, following the submission of the
parties memoranda, considered EPC No. 2004-61 submitted for resolution.
In a resolution
8
dated January 23, 2006, the Second Division then composed of only two sitting
members, namely, Presiding Commissioner Mehol Sadain (now retired) and Commissioner Florentino
Tuason, Jr. declared private respondent Imperial the winning candidate for mayor of Legaspi City and
ordered petitioner Rosal to vacate said office and turn it over peacefully to private respondent.
Commissioner Sadain, who wrote the main opinion, relied on the election return count only in precincts
the ballot boxes of which were found to contain fake ballots notwithstanding petitioners assertion that
39

genuine but otherwise invalid ballots might have been switched with the ones actually cast in the
elections. These numbered a mere 129 precincts. For the rest, he examined, appreciated and counted
the ballots themselves, invalidating in the process over 14,000 ballots cast for petitioner for having been
written by two persons or for being in groups written by one hand. Commissioner Sadain ended up
crediting private respondent with 32,660 valid votes over 30,517 for petitioner.
Commissioner Tuason filed a separate concurring opinion
9
manifesting disagreement with Commissioner
Sadains appreciation of certain ballots but arriving at the same practical result.
On January 30, 2006, petitioner filed a motion for reconsideration of the Second Divisions resolution. The
motion was denied by the Comelec en banc in a resolution dated May 29, 2006.
10
In due time, petitioner
came to this Court with a petition for certiorari and prohibition assailing the Comelec en banc resolution.
The case was docketed as G.R. No. 172741 and consolidated with G.R. No. 168253.
11

Interlocutory Orders and Rule 65
Before focusing on the merits of this case, the Court sees fit to address a procedural concern with respect
to G.R. No. 168253. Private respondent has persistently thrust upon us the proposition that the April 25,
2005 order subject of the petition in G.R. No. 168253, being, as it is, an interlocutory order rendered by a
division of the Comelec, cannot be assailed by means of a special civil action for certiorari, as only final
orders of the Comelec en banc can be brought to the Supreme Court by that mode.
We disagree. Section 1, Rule 65 of the Rules of Court, which governs petitions for certiorari, provides
that:
When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.
xxx xxx xxx
Under the foregoing provision, one may resort to a special civil action for certiorari under three conditions:
(1) the petition must be directed against a tribunal, board or officer exercising judicial or quasi-
judicial functions;
(2) the tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction; and
(3) there is no plain, speedy and adequate remedy in the ordinary course of law.
Other than these three, the Supreme Courts jurisdiction over petitions for certiorari has no preset
boundaries.Any act by an officer or entity exercising judicial or quasi-judicial functions, if done without or
in excess of jurisdiction or with grave abuse of discretion, may be assailed by means of a special civil
action for certiorari when no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law is available. In other words, no judicial or quasi-judicial act or order is excluded a priori from
the ambit of the Supreme Courts power to correct through the writ of certiorari. It is therefore incorrect to
say that interlocutory orders issued by a division of the Comelec, or by any judicial or quasi-judicial body
for that matter, are beyond the reach of this Court.
40

That the Supreme Court has jurisdiction over petitions for certiorari assailing interlocutory orders rendered
by a Comelec division from which no recourse to the Comelec en banc could be had was, in fact,
acknowledged inKho v. Commission on Elections.
12
In that case, Kho, an election protestant, filed a
petition for certiorari in the Supreme Court questioning the Comelec First Divisions interlocutory orders
relating to the admission of his opponents belatedly filed answer.
One of the issues in Kho was whether the controversial orders should have first been referred to the
Comelec en banc. Citing Section 5(c), Rule 3 of the Comelec Rules of Procedure which states that:
[a]ny motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division which shall be resolved by the
division which issued the order
this Court ruled that the authority to resolve such incidental matters fell on the division itself. The Court
went on to say that:
where the Commission in division committed grave abuse of discretion or acted without or in excess of
jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did
not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure
[which enumerates the cases in which the Comelec may sit en banc],
13
the remedy of the aggrieved party
is not to refer the controversy to the Commission en banc as this is not permissible under its present rules
but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court.
14

In fine, Kho tells us that an interlocutory order of a Comelec division should be challenged at the first
instance through a proper motion, such as a motion for reconsideration, filed with the division that
rendered the order. If that fails and no other plain, speedy and adequate remedy (such as recourse to the
Comelec en banc) is available, the party aggrieved by the interlocutory order may elevate the matter to
the Supreme Court by means of a petition for certiorari on the ground that the order was issued without or
in excess of jurisdiction or with grave abuse of discretion.
Private respondent asserts, however, that Kho has been superseded by the more recent case of Repol v.
Commission on Elections
15
from which he cites the dictum that:
[t]he Supreme Court has no power to review via certiorari an interlocutory order or even a final resolution
of a Division of the COMELEC. Failure to abide by this procedural requirement constitutes a ground for
dismissal of the action.
16

Again, we disagree.
There is no contradiction between Kho and Repol that calls for the application of the doctrine that a later
judgment supersedes a prior one in case of inconsistency. In Repol, the petitioner went directly to the
Supreme Court from an interlocutory order of the Comelec First Division without first filing a motion for
reconsideration with said division. That was properly a cause for concern inasmuch as failure to move for
reconsideration of the act or order before challenging it through a petition for certiorari often constitutes a
ground for dismissal for non-compliance with the condition in Rule 65: that resort to certiorari should be
justified by the unavailability of an appeal or any other plain, speedy and adequate remedy in the ordinary
course of law. In the end, however, the Court in Repol applied the ruling in ABS-CBN Broadcasting
Corporation v. COMELEC
17
that an exception to the procedural requirement of filing a motion for
reconsideration was warranted since there was hardly enough time to move for reconsideration and
obtain a swift resolution in time for the impending elections.
A sensible reading of our decision shows that Repol was not a negation or repudiation of this Courts
jurisdiction over petitions for certiorari from interlocutory orders rendered by a Comelec division. Had it
been so, then we would have dismissed the petition on the ground that it was beyond our jurisdiction.
41

Rather, this Court in Repolmerely applied the rule that a petition for certiorari must be justified by the
absence of a plain, speedy and adequate remedy in the ordinary course of law; we said that the rule had
been satisfied inasmuch as a motion for reconsideration was not a plain, speedy and adequate remedy
under the circumstances.
Repol therefore merely serves as a reminder that, in a petition for certiorari from an interlocutory order,
the petitioner bears the burden of showing that the remedy of appeal taken after a judgment or final order
(as opposed to an interlocutory one) has been rendered will not afford adequate and expeditious
relief,
18
as it is often the better practice for a party aggrieved by an interlocutory order to continue with the
case in due course and, in the event of an adverse decision, appeal from it and include the interlocutory
order as one of the errors to be corrected by the reviewing body.
In this instance, petitioner filed a motion for reconsideration of the Second Divisions order. When that
failed, no other speedy and adequate remedy against the unpardonable vices attending the Second
Divisions treatment of the election protest was left to him except recourse to this Court under Rule 65.
Under the circumstances, he was without the shadow of a doubt justified in taking it.
Election Protest and Ballots As Evidence
It will be recalled that the Second Division had been apprised of the ballot boxes impaired condition even
prior to the commencement of the revision proceedings. This notwithstanding, it brushed aside
petitioners protestations that he was the victim of an ingenious post-election fraud involving infiltration of
the ballot boxes and the clever switching of ballots actually cast with invalid ones to ensure his defeat in
the election protest. The division ruled that:
mere allegations cannot suffice to convince this Commission that switching of ballots has occurred,
absent any positive and direct evidence in the form of fake ballots themselves being found among
genuine ballots. Regardless of any technical examination that may have been conducted or testimonial
evidence presented, as emphatically moved by the protestee but denied by the Commission, the best
proof of the alleged substitution of ballots is the ballots themselves. And the process by which this proof is
established is by way of an evaluation of the ballots by the Commission itself during its appreciation of the
revised ballots.
19

On the basis of this reasoning, the Second Division proceeded with an appreciation and recount of the
ballots from over 300 precincts and set aside the physical count of the revised ballots in favor of the
election returns only in precincts the ballot boxes of which were found to contain spurious ballots.
In view of the facts of this case, the Court cannot but hold that the Second Division adopted a manifestly
unreasonable procedure, one totally unfit to address the single most vital threshold question in an election
protest, namely, whether the ballots found in the ballot boxes during the revision proceedings were the
same ballots that were cast and counted in the elections.
The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board
of canvassers is the true and lawful choice of the electorate.
20
Such a proceeding is usually instituted on
the theory that the election returns, which are deemed prima facie to be true reports of how the electorate
voted on election day
21
and which serve as the basis for proclaiming the winning candidate, do not
accurately reflect the true will of the voters due to alleged irregularities that attended the counting of
ballots. In a protest prosecuted on such a theory, the protestant ordinarily prays that the official count as
reflected in the election returns be set aside in favor of a revision and recount of the ballots, the results of
which should be made to prevail over those reflected in the returns pursuant to the doctrine that "in an
election contest where what is involved is the number of votes of each candidate, the best and most
conclusive evidence are the ballots themselves."
22

42

It should never be forgotten, though, that the superior status of the ballots as evidence of how the
electorate voted presupposes that these were the very same ballots actually cast and counted in the
elections. Thus, it has been held that before the ballots found in a box can be used to set aside the
returns, the court (or the Comelec as the case may be) must be sure that it has before it the same ballots
deposited by the voters.
23

Procedure to Address Post-Election Fraud
How, then, can one establish that the ballots sought to be revised are the same ballots cast by the voters
during the elections? Obviously, the proof cannot be supplied by an examination of the ballots
themselves, their identity being the very fact in dispute. Answers may be found in abundance in the early
case of Cailles v. Gomez
24
in which the following doctrines were quoted with favor:
In an election contest the ballots cast by the voters is the primary and best evidence of the intention of the
voters, but the burden of proof is on the contestor to show that the ballots have been preserved in the
manner provided by law and have not been tampered with, and the fact that the ballots have been in the
custody of the proper officers from the time of the canvass to the time of the recount is only prima facie
and not conclusive proof of their integrity.
In an election contest the rule that as between the ballots and the canvass of them, the ballots control,
has no application where the ballots have been tampered with. The court must be sure that it has before it
the identical and unaltered ballots deposited by the voters before they become controlling as against the
certificate of the election officers of the result of the canvass.
xxx xxx xxx
Where an official count has been made, it is better evidence of who was elected than the ballots, unless
he who discredits the count shows affirmatively that the ballots have been preserved with a care which
precludes the opportunity of tampering and all suspicion of change, abstraction or substitution.
The law is well settled that the burden of proof is on the plaintiff, when he seeks to introduce the ballots to
overturn the official count, to show affirmatively that the ballots have not been tampered with, and that
they are the genuine ballots cast by the voters.
In an action to contest the right of a party to an office to which he has been declared elected, the returns
of the election boards should be received as prima facie true. In order to overcome this evidence by a
recount of the ballots cast at the election, the contestant must affirmatively prove that the ballots have not
been tampered with, and that they remained in the same condition as they were when delivered to the
proper custody by the judges of election. If it appear to the satisfaction of the court that the ballots have
not been tampered with, it should adopt the result as shown by the recount, and not as returned by the
election board.
xxx xxx xxx
The principles of law and the rules of evidence governing cases such as this have been so often declared
that a review of the many authorities is unnecessary. Those curious or interested in pursuing the subject
will find in the reporter's notes, preceding, many instructive cases collated by the industry of counsel.
Suffice it here to say that, while the ballots are the best evidence of the manner in which the electors have
voted, being silent witnesses which can neither err nor lie, 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, as presented
to the court, are intact and genuine. Where a mode of preservation is enjoined by the statute proof must
be made of a substantial compliance with the requirements of that mode. But such requirements are
construed as directory merely, the object looked to being the preservation inviolate of the ballots. If this is
43

established it would be manifestly unjust to reject them merely because the precise mode of reaching it
had not been followed.
So, too, when a substantial compliance with the provisions of the statute has been shown, the burden of
proof shifts to the contestee of establishing that, notwithstanding this compliance, 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. But this proof is not made by a naked showing that it was possible for one to
have molested them. The law cannot guard against a mere possibility, and no judgment of any of its
courts is ever rendered upon one.
The probative value of the result of the return made by the board of inspectors is a question already
settled at various times by the courts of the United States. In the case of Oakes vs. Finlay, the following
doctrine was laid:
"The returns of an election board, when legally and properly authenticated, are not only conclusive upon
the board of canvassing officers, but are also prima facie evidence of the number of votes cast, in a
proceeding to contest the election; and the burden of proof is upon the person who assails the
correctness of these returns."
In the case of Stafford vs. Sheppard, the court said:
"Certificates of the result of an election, made by the commissioners at the precincts, are prima facie
evidence of the result of the election. The ballots, if identified as the same cast, are primary and higher
evidence; but, in order to continue the ballots as controlling evidence, it must appear that they have been
preserved in the manner and by the officers prescribed by the statute, and that, while in such custody,
they have not been changed or tampered with." (internal citations omitted)
25

We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the official count as
reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved
with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or
substitution; (2) the burden of proving that the integrity of the ballots has been preserved in such a
manner is on the protestant; (3) where a mode of preserving the ballots is enjoined by law, proof must be
made of such substantial compliance with the requirements of that mode as would provide assurance that
the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving
that end; (4) it is only when the protestant has shown substantial compliance with the provisions of law on
the preservation of ballots that the burden of proving actual tampering or the likelihood thereof shifts to
the protestee and (5) only if it appears to the satisfaction of the court or Comelec that the integrity of the
ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the
election returns.
Our election laws are not lacking in provisions for the safekeeping and preservation of the ballots. Among
these are Sections 160, 217, 219 and 220 of the Omnibus Election Code
26
which provide:
SECTION 160. Ballot boxes. (a) There shall be in each polling place on the day of the voting a ballot
box one side of which shall be transparent which shall be set in a manner visible to the voting public
containing two compartments, namely, the compartment for valid ballots which is indicated by an interior
cover painted white and the compartment for spoiled ballots which is indicated by an interior cover
painted red. The boxes shall be uniform throughout the Philippines and shall be solidly constructed and
shall be closed with three different locks as well as three numbered security locks and such other safety
devices as the Commission may prescribe in such a way that they can not be opened except by means of
three distinct keys and by destroying such safety devices.
(b) In case of the destruction or disappearance of any ballot box on election day, the board of election
inspectors shall immediately report it to the city or municipal treasurer who shall furnish another box or
44

receptacle as equally adequate as possible. The election registrar shall report the incident and the
delivery of a new ballot box by the fastest means of communication on the same day to the Commission
and to the provincial election supervisor.
SECTION 217. Delivery of the ballot boxes, keys and election supplies and documents. Upon the
termination of the counting of votes, the board of election inspectors shall place in the compartment for
valid ballots, the envelopes for used ballots hereinbefore referred to, the unused ballots, the tally board or
sheet, a copy of the election returns, and the minutes of its proceedings, and then shall lock the ballot box
with three padlocks and such safety devices as the Commission may prescribe. Immediately after the box
is locked, the three keys of the padlocks shall be placed in three separate envelopes and shall be sealed
and signed by all the members of the board of election inspectors. The authorized representatives of the
Commission shall forthwith take delivery of said envelopes, signing a receipt therefor, and deliver without
delay one envelope to the provincial treasurer, another to the provincial fiscal and the other to the
provincial election supervisor.
The ballot box, all supplies of the board of election inspectors and all pertinent papers and documents
shall immediately be delivered by the board of election inspectors and the watchers to the city or
municipal treasurer who shall keep his office open all night on the day of election if necessary for this
purpose, and shall provide the necessary facilities for said delivery at the expense of the city or
municipality. The book of voters shall be returned to the election registrar who shall keep it under his
custody. The treasurer and the election registrar, as the case may be, shall on the day after the election
require the members of the board of election inspectors who failed to send the objects referred to herein
to deliver the same to him immediately and acknowledge receipt thereof in detail.
SECTION 219. Preservation of the ballot boxes, their keys and disposition of their contents. (a) The
provincial election supervisor, the provincial treasurer and the provincial fiscal shall keep the envelope
containing the keys in their possession intact during the period of three months following the election.
Upon the lapse of this period, unless the Commission has ordered otherwise, the provincial election
supervisor and the provincial fiscal shall deliver to the provincial treasurer the envelope containing the
keys under their custody.
(b) The city and municipal treasurer shall keep the ballot boxes under their responsibility for three
months and stored unopened in a secure place, unless the Commission orders otherwise
whenever said ballot boxes are needed in any political exercise which might be called within the
said period, provided these are not involved in any election contest or official investigation, or the
Commission or other competent authority shall demand them sooner or shall order their
preservation for a longer time in connection with any pending contest or investigation. However,
upon showing by any candidate that the boxes will be in danger of being violated if kept in the
possession of such officials, the Commission may order them kept by any other official whom it
may designate. Upon the lapse of said time and if there should be no order to the contrary, the
Commission may authorize the city and municipal treasurer in the presence of its representative
to open the boxes and burn their contents, except the copy of the minutes of the voting and the
election returns deposited therein which they shall take and keep.
(c) In case of calamity or fortuitous event such as fire, flood, storm, or other similar calamities
which may actually cause damage to the ballot boxes and/or their contents, the Commission may
authorize the opening of said ballot boxes to salvage the ballots and other contents by placing
them in other ballot boxes, taking such other precautionary measures as may be necessary to
preserve such documents.
SECTION 220. Documents and articles omitted or erroneously placed inside the ballot box. If after the
delivery of the keys of the ballot box to the proper authorities, the board of election inspectors shall
discover that some documents or articles required to be placed in the ballot box were not placed therein,
the board of election inspectors, instead of opening the ballot box in order to place therein said
documents or articles, shall deliver the same to the Commission or its duly authorized representatives. In
45

no instance shall the ballot box be reopened to place therein or take out therefrom any document or
article except to retrieve copies of the election returns which will be needed in any canvass and in such
excepted instances, the members of the board of election inspectors and watchers of the candidates shall
be notified of the time and place of the opening of said ballot box: Provided, however, That if there are
other copies of the election returns outside of the ballot box which can be used in canvass, such copies of
the election returns shall be used in said canvass and the opening of the ballot box to retrieve copies of
the election returns placed therein shall then be dispensed with.
Additional safeguards were provided for in Comelec Resolution No. 6667 (General Instructions for the
Boards of Election Inspectors on the Casting and Counting of Votes in Connection with the May 10, 2004
National and Local Elections) which laid down the following directives:
Section 50. Disposition of ballot boxes, keys, election returns and other documents. - Upon the
termination of the counting of votes and the announcement of the results of the election in the precinct,
the BEI shall:
a. Place the following documents inside the compartment of the ballot box for valid ballots.
1. Envelope containing used/counted official ballots;
2. Envelope containing excess/marked/spoiled/half of torn unused official ballots;
3. Envelope containing the copy of the election returns for the ballot box;
4. Envelope containing one copy of the Minutes of Voting and Counting of Votes (copy for
the ballot box);
5. Tally Board; and
6. Stubs of used pads of official ballots.
b. Close the inner compartments of the ballot box, lock them with one (1) self-locking fixed-length
seal and then lock the outer cover with the (3) padlocks and one (1) self-locking fixed-length seal.
The three keys to the padlocks shall be placed in separate envelopes which shall be sealed and
signed by all members of the BEI;
c. Deliver the ballot box to the city or municipal treasurer. In case the ballot box delivered by the
BEI was not locked and/or sealed, the treasurer shall lock and/or seal the ballot box. The
treasurer shall include such fact, including the serial number of the self-locking fixed-length seal
used, in his report to the Commission;
d. Deliver to the Election Officer:
xxx xxx xxx
5. Three (3) envelopes, each containing a key to a padlock of the ballot box which shall be
delivered, under proper receipt, by the election officer to the provincial election supervisor, the
provincial prosecutor and the provincial treasurer. In the case of cities whose voters do not vote
for provincial officials, and municipalities in the National Capital Region, the election officer shall
retain one envelope and distribute the two other envelopes to the city/municipal prosecutor and
city/municipal treasurer, as the case may be.
xxx xxx xxx
46

The ballot box, all supplies of the BEI and all pertinent papers and documents shall immediately be
delivered by the BEI, accompanied by watchers, to the city/municipal treasurer. For this purpose, the
city/municipal treasurer shall, if necessary, keep his office open all night on the day of the election and
shall provide the necessary facilities for said delivery at the expense of the city/municipality.
Section 52. Omission or erroneous inclusion of documents in ballot box. - If after locking the ballot box,
the BEI discovers that some documents or articles required to be placed in the ballot box were not placed
therein, the BEI, instead of opening the ballot box in order to place therein said documents or articles,
shall deliver the same to the election officer. In no instance shall the ballot box 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 Commission, or its duly authorized official, to retrieve copies of the election returns which
will be needed in any canvass. In such instance, the members of the BEI and the watchers shall be
notified of the time and place of the opening of said ballot box. However, if there are other copies of the
election returns outside of the ballot box which can be used in the canvass, such copies of the election
returns shall be used in said canvass and the opening of the ballot box to retrieve copies of the election
returns placed therein shall then be dispensed with.
In case the BEI fails to place the envelope containing the counted ballots inside the ballot box, the
election officer shall, with notice to parties, deposit said envelopes in a separate ballot box which shall be
properly sealed, padlocked and stored in a safe place in his office. Said ballot boxes shall remain sealed
unless otherwise ordered by the Commission.
As made abundantly clear by the foregoing provisions, the mode of preserving the ballots in this
jurisdiction is for these to be stored safely in sealed and padlocked ballot boxes which, once closed, shall
remain unopened unless otherwise ordered by the Comelec in cases allowed by law. The integrity of the
ballots and therefore their probative value, as evidence of the voters will, are contingent on the integrity
of the ballot boxes in which they were stored. Thus, it is incumbent on the protestant to prove, at the very
least, that the safety features meant to preserve the integrity of the ballot boxes and their contents were
installed and that these remained in place up to the time of their delivery to the Comelec for the revision
proceedings. If such substantial compliance with these safety measures is shown as would preclude a
reasonable opportunity of tampering with the ballot boxes contents, the burden shifts to the protestee to
prove that actual tampering took place. If the protestee fails to discharge this burden, the court or the
Comelec, as the case may be, may proceed on the assumption that the ballots have retained their
integrity and still constitute the best evidence of the election results. However, where a ballot box is found
in such a condition as would raise a reasonable suspicion that unauthorized persons could have gained
unlawful access to its contents, no evidentiary value can be given to the ballots in it and the official count
reflected in the election return must be upheld as the better and more reliable account of how and for
whom the electorate voted.
The procedure adopted by the Second Division was a complete inverse of the one outlined above and
was contrary to reason. There was complete arbitrariness on its part.
First, there was no indication at all that it ever considered the condition of the ballot boxes at the time they
were delivered to the Comelec for revision. We find this rather puzzling, considering that it had been
apprised of such information even before revision and even its own Rules of Procedure on election
protests requires the revision committee to "make a statement of the condition in which the ballot boxes
and their contents were found upon the opening of the same"
27
in recognition of the vital significance of
such facts.
Second, it placed the burden of proving actual tampering of the ballots on petitioner herein (the protestee
below) notwithstanding private respondents previous manifestation that most of the ballot boxes bore
"overt signs of tampering"
28
and only 79 ballot boxes were found intact.
47

Third, instead of diligently examining whether the ballot boxes were preserved with such care as to
preclude any reasonable opportunity for tampering with their contents, the Second Division made the
probative value of the revised ballots dependent solely on whether spurious ballots were found among
them. It failed to recognize that, in view of reports that the ballot boxes had been tampered with and
allegations that their contents had been switched with genuine but invalid ballots, the question of whether
the revised ballots could be relied on as the same ones cast and counted during the elections could not
obviously be settled by an examination of the ballots themselves. Clearly, the time when these were
deposited in the ballot boxes a detail of utmost importance could not possibly have been
determined by that means.
These errors on the part of the Second Division were infinitely far from harmless; the proper legal
procedure could have made a substantial difference in the result of the election protest and most certainly
could have led to a better approximation of the true will of the electorate. This, in the final analysis, is
what election protests are all about.
Under the circumstances, the question as to who between the parties was duly elected to the office of
mayor cannot be settled without further proceedings in the Comelec. In keeping with the precepts laid
down in this decision, the Comelec must first ascertain, after due hearing, whether it has before it the
same ballots cast and counted in the elections. For this purpose, it must determine: (1) which ballot boxes
sufficiently retained their integrity as to justify the conclusion that the ballots contained therein could be
relied on as better evidence than the election returns and (2) which ballot boxes were in such a condition
as would afford a reasonable opportunity for unauthorized persons to gain unlawful access to their
contents. In the latter case, the ballots must be held to have lost all probative value and cannot be used to
set aside the official count reflected in the election returns.
WHEREFORE, the petitions are GRANTED. The April 25 and May 12, 2005 orders and the January 23,
2006 resolution of the Commission on Elections Second Division and the May 29, 2006 resolution of the
Commission on Elections en banc in EPC No. 2004-61 are hereby declared null and void. The
Commission on Elections is hereby DIRECTED to determine, with utmost dispatch and all due regard for
the parties right to be heard, the true result of the 2004 elections for mayor of Legaspi City. To this end, it
shall:
(1) identify the precincts the ballot boxes of which were found intact with complete and
undamaged seals and padlocks or were otherwise preserved with such substantial compliance
with statutory safety measures as to preclude a reasonable opportunity for tampering with their
contents. The ballots from these precincts shall be deemed to have retained their integrity in the
absence of evidence to the contrary and the Commission on Elections may consider them in the
recount.
(2) ascertain the precincts the ballot boxes of which were found in such a condition as would
afford a reasonable opportunity for unlawful access to their contents. The Commission on
Elections shall exclude from the recount the ballots from these precincts and shall rely instead on
the official count stated in the election returns.
The status quo ante order issued by this Court on June 7, 2006 is, for all intents and purposes consistent
with this decision, hereby MAINTAINED.
SO ORDERED.