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706 Phil. 214

EN BANC

[ G.R. No. 203302, March 12, 2013 ]

MAYOR EMMANUEL L. MALIKSI, PETITIONER, VS. COMMISSION ON ELECTIONS AND HOMER T. SAQUILAYAN, RESPONDENTS.

R E S O L U T I O N

CARPIO, J.:

The Case

Before the Court is a petition for certiorari[1] assailing the 14 September 2012 Resolution[2] of the Commission on Elections (COMELEC) En Banc which affirmed the 15 August 2012 Resolution[3] of the COMELEC First Division in EAC (AE) No. A-22-2011.

The Antecedent Facts

Emmanuel L. Maliksi (Maliksi) and Homer T. Saquilayan (Saquilayan) were both mayoralty candidates for the Municipality of Imus, Cavite during the 10 May 2010 Automated National and Local Elections. The Municipal Board of Canvassers (MBC) proclaimed Saquilayan as the duly elected municipal mayor garnering a total of 48,181 votes as against Maliksi’s 39,682 votes. Thus, based on the MBC’s canvass, Saquilayan won over Maliksi by 8,499 votes.

Maliksi filed an election protest before the Regional Trial Court of Imus, Cavite, Branch 22 (trial court), questioning the results of the elections in 209 clustered precincts. The case was docketed as Election Protest No. 009-10. In its 15 November 2011 Decision, the trial court declared Maliksi as the duly elected Municipal Mayor of Imus, Cavite. The trial court ruled that Maliksi garnered 41,088 votes as against Saquilayan’s 40,423 votes. Thus, based on the trial court’s recount, Maliksi won over Saquilayan by a margin of 665 votes. The dispositive portion of the trial court’s decision reads:

WHEREFORE, in view of all the foregoing, this Court finds the Election Protest filed by Emmanuel L. Maliksi meritorious. Accordingly, Emmanuel L. Maliksi is hereby DECLARED as the duly elected Mayor of the Municipality of Imus, Province of Cavite after having obtained the highest number of legal votes of 41,088 as against Protestant Homer T. Saquilayan’s 40,423 votes or a winning margin of 665 votes in favor of the former.

Thus, the election and proclamation of Homer T. Saquilayan as Mayor of Imus, Cavite is hereby ANNULLED and SET ASIDE and he is COMMANDED to immediately CEASE and DESIST from performing the duties and functions of said office.

Finally, pursuant to Section 4, Rule 14 of A.M. 10-4-1-SC, the Clerk of Court is hereby DIRECTED to personally deliver the copy of the signed and promulgated decision on the counsels of the parties.

SO ORDERED.[4]

Saquilayan filed an appeal before the COMELEC, docketed as EAC (AE) No. A-22-2011. Meanwhile, in a Special Order dated 28 November 2011, the trial court granted Maliksi’s motion for execution pending appeal.

On 2 December 2011, Saquilayan also filed with the COMELEC a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and temporary restraining order or status quo order with prayer for early consideration, docketed as SPR (AE) No. 106-2011, assailing the trial court’s Special Order of 28 November 2011 granting execution pending appeal. A COMELEC First Division Order dated 20 December 2011[5] enjoining the trial court from enforcing its 28 November 2011 Special Order was not implemented since only Presiding Commissioner Rene V. Sarmiento (Sarmiento) voted to grant the temporary restraining order while Commissioners Armando C. Velasco (Velasco) and Christian Robert S. Lim (Lim) dissented.

The Resolution of the COMELEC First Division

The COMELEC First Division, after inspecting the ballot boxes, ruled that it was apparent that the integrity of the ballots had been compromised. To determine the true will of the electorate, and since there was an allegation of ballot tampering, the COMELEC First Division examined the digital images of the contested ballots stored in the Compact Flash (CF) cards. The COMELEC First Division used the following guidelines in appreciating the contested ballots:

1. On Marked Ballots. - The rule is that no ballot should be discarded as marked unless its character as such is unmistakable. The distinction should always be between marks that were apparently, carelessly, or innocently made, which do not invalidate the ballot, and marks purposely placed thereon by the voter with a view to possible future identification of the ballot, which invalidate it. In the absence of any circumstance showing that the intention of the voter to mark the ballot is unmistakable, or any evidence aliunde to show that the words or marks were deliberately written or put therein to identify the ballots, the ballots should not be rejected.

2. On ballots claimed to have been shaded by two or more persons. - Unlike in the manual elections where it is easy to identify if a ballot has been written by two persons, in case of an automated election, it would be very hard if not impossible to identify if two persons shaded a single ballot. The best way to identify if a ballot has been tampered is to go to the digital image of the ballot as the PCOS machine was able to capture such when the ballot was fed by the voter into the machine when he cast his vote. In the absence of any circumstance showing that the ballot was shaded by persons other than the voter, the ballots should not be rejected to give effect to the voter’s intent.

3. On ballots with ambiguous votes. - It has been the position of the Commission to always take into consideration [that] the intent of the voter shall be given effect, taking aside any technicalities. A ballot indicates the voter’s will. In the reading and appreciation of ballots, every ballot is presumed valid unless there is a clear reason to justify its rejection. The object in the appreciation of ballots is to ascertain and carry into effect the intention of the voter, if it can be determined with reasonable certainty.

4. On spurious ballots. - Ballots have security features like bar codes, ultra-violet inks and such other security marks to be able to preserve its integrity and the PCOS machines were programmed to accept genuine and valid ballots only. Further, the ballots used in the elections were precinct specific, meaning, the PCOS machine assigned to a specific precinct will only accept those ballots designated to such precinct. This follows that the digital images stored in the CF cards are digital images of genuine, authentic and valid ballots. In the absence of any evidence proving otherwise, the Commission will not invalidate a vote cast which will defeat the sovereign will of the electorate.

5. On over-voting. - It has been the position of the Commission that over-voting in a certain position will make the vote cast for the position stray but will not invalidate the entire ballot, so in case of over-voting for the contested position, such vote shall be considered stray and will not be credited to any of the contending parties.

6. On rejected ballots. - As correctly observed by [the] court a quo, with all the security features of the ballot, the PCOS machines will only accept genuine ballots and will reject it if, inter alia, fake, duplicate, ballots intended for another precinct, or has been fed an[d] accepted by the machines already. Bearing in mind the voter’s will, rejected ballots can still be claimed by the parties and be admitted as valid votes, if, upon further examination, it is found that the ballot is genuine and was inadvertently rejected by the machine.[6]

After the counting and appreciation of the ballot images in the CF cards of the appealed clustered precincts, the COMELEC First Division came up with the following findings:

Clustered
Precinct No.
Ruling of
Trial Court
Ruling of
COMELEC
  First Division
Votes for
Saquilayan
Votes for
Maliksi
96
84 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
235
270
61
68 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
230
173
51
133 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded. 2 ballots were declared stray because the slots for Maliksi and Astillero were both shaded.
Upon examining the digital images of the ballots, there was no over-voting.
212
182
42
207 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded. 1 ballot was declared stray because the slots for Maliksi and Astillero were both shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
273
231
36
92 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Maliksi.
154
202
03
33 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
73
89
49
172 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
279
265
50
153 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Maliksi.
313
275
34
155 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded. 1 ballot was declared stray because the slots for Maliksi and Dominguez were both shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
210
164
35
215 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Saquilayan.
286
288

146

216 ballots were declared stray because both slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
305
271
120
246 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
309
269
127
248 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting. were shaded. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
332
304
206
132 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (1 for Saquilayan, 2 for Maliksi) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
136
116
76
253 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
329
251
202
122 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
140
158
67
203 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
246
180
209
168 ballots were declared stray because both slots for Maliksi and Saquilayan were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
220
171
81
181 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
329
194
87
107 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
133
147
86
189 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (1 for Maliksi, 2 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
246
239
91
95 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (2 for Maliksi, 1 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
137
189
88
75 ballots were declared stray because 2 slots for the mayoralty position were shaded.

Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Maliksi.

142
223
68
113 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
243
180
45
120 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
216
211
43
101 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (2 for Maliksi, 1 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
256
182
85
89 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
184
213
74
114 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 7 ballots (2 for Maliksi, 5 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
179
161
47
186 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
250
226
128
105 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
272
223
107
77 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
127
178
97
220 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots (1 for Maliksi, 1 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
280
299
99
114 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
243
354
208
154 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
200
163
204
119 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Saquilayan.
269
119
201
108 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
143
131
207
338 ballots were declared stray because 2 slots for the mayoralty position were shaded.

Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.

419
117
109
136 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
173
257
131
140 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
297
165
52
98 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Maliksi.
118
87
117
146 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
302
265
100
90 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (2 for Maliksi, 1 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
370
228
95
215 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
288
270
98
103 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
218
304
94
257 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Maliksi.
270
150
93
105 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 2 ballots were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for Maliksi.
205
167
64
117 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
170
162
44
169 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
273
200
41
262 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting.
368
176
130
156 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (2 for Maliksi, 1 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
314
170
118
126 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (2 for Maliksi, 1 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
310
248
56
127 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 1 ballot was rejected by the PCOS machine but it was clear that the intent of the voter was to vote for Saquilayan.
202
223
205
153 ballots were declared stray because 2 slots for the mayoralty position were shaded.
Upon examining the digital images of the ballots, there was no over-voting. 3 ballots (1 for Maliksi, 2 for Saquilayan) were rejected by the PCOS machine but it was clear that the intent of the voters was to vote for the candidate of choice.
185
242

The COMELEC First Division found that Maliksi obtained a total of 40,092 votes, broken down as follows: (a) 29,170 votes in the clustered precincts not appealed as per statement of votes by precinct, and (b) 10,922 votes in the appealed clustered precincts. On the other hand, Saquilayan obtained a total of 48,521 votes, broken down as follows: (a) 35,908 votes in the clustered precincts not appealed as per statement of votes by precinct, and (b) 12,613 votes obtained in the appealed clustered precincts. Saquilayan won over Maliksi by 8,429 votes. Thus, in a Resolution promulgated on 15 August 2012, the COMELEC First Division nullified the trial court’s decision and declared Saquilayan as the duly-elected Municipal Mayor of Imus, Cavite. The COMELEC First Division noted that Maliksi attached a photocopy of an official ballot to his election protest. The COMELEC First Division stated that unless one of the clustered precincts had a photocopying machine, it could only mean that an official ballot was taken out of the polling place to be photocopied, in violation of Section 30(a) of COMELEC Resolution No. 8786.[7] The dispositive portion of the 15 August 2012 Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to:

1. NULLIFY the pronouncement of the lower court that protestant-appellee EMMANUEL L. MALIKSI is the duly-elected Municipal Mayor of Imus, Cavite and HEREBY DECLARES HOMER T. SAQUILAYAN as the duly-elected Municipal Mayor of the above-mentioned municipality;

2. Further, the Law Department is hereby DIRECTED:

i. To conduct an investigation as to who were responsible for the tampering of the ballot boxes for purposes of filing the appropriate information for violation of election laws; and

ii. To conduct an investigation as to possible violation of election laws and Comelec Resolutions by herein protestant-appellee EMMANUEL L. MALIKSI as to how he was able to secure a photocopy of the official ballot which he attached in his Election Protest.

SO ORDERED.[8]

Maliksi filed a motion for reconsideration of the COMELEC First Division’s Resolution and for the voluntary inhibition of Commissioners Sarmiento, Velasco, and Lim from further acting on the case.

The Resolution of the COMELEC En Banc

In its 14 September 2012 Resolution, the COMELEC En Banc denied Maliksi’s motion for reconsideration and affirmed the 15 August 2012 Resolution of the COMELEC First Division.

The COMELEC En Banc ruled that the COMELEC First Division did not err in ordering the decryption, printing, and examination of the ballot images in the CF cards instead of recounting the physical ballots. The COMELEC En Banc stated that when the case was elevated to it on appeal, it immediately noted an “unprecedented number of double-votes involving 8,387 ballots – exclusively affecting the position of Mayor and specifically affecting the ballots for Saquilayan.”[9] The COMELEC En Banc further noted:

x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested) – thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those precincts. We find this too massive to have not been detected on election day, too specific to be random and too precise to be accidental – which leaves a reasonable mind no other conclusion except that those 8,387 cases of double-shading were purposely machinated. These dubious and highly suspicious circumstances left us with no other option but to dispense with the physical ballots and resort to their digital images. To recount the tampered ballots will only yield us tampered results defeating the point of this appeal.[10]

The COMELEC En Banc also ruled that it is free to adopt procedures that will ensure the speedy disposition of its cases as long as the parties are amply heard on their opposing claims. The COMELEC En Banc ruled that the decryption, printing, and examination of the ballot images in the CF cards are not without basis since a Division, through its Presiding Commissioner, may take such measures as he may deem proper to resolve cases pending before it. The COMELEC En Banc ruled that Maliksi was not denied due process because he never questioned the Order of decryption by the COMELEC First Division nor did he raise any objection in any of his pleadings. Further, the ballot images are not mere secondary images, as Maliksi claimed. The digital images of the physical ballots, which are instantaneously written in the CF cards by the PCOS[11] machines the moment the ballots are read and counted, are equivalent to the original for the purpose of the best evidence rule. The COMELEC En Banc accorded higher evidentiary value to the ballot images because their integrity are more secure for the following reasons:

(1) the digital images are encrypted to prevent unauthorized alteration or access;

(2) the ballot images cannot be decrypted or in anyway accessed without the necessary decryption key;

(3) the ballot images may only be decrypted using a special system designed by the COMELEC and not by any ordinary operating system or computer;

(4) the CF cards storing the digital images of all the ballots used in the 10 May 2010 elections are kept in a secured facility within the Commission to prevent unauthorized access.[12]

The COMELEC En Banc further ruled that the result of the revision proceedings in the trial court could not be admitted because of the finding by the COMELEC First Division that the recounted ballots were tampered. The COMELEC En Banc explained:

The allegation of post-election fraud of Saquilayan was in fact confirmed by the First Division when upon examination of the scanned digital images of all the double-shaded ballots, they were found to bear no traces of double-shading – instead they contain clear and unambiguous votes for Saquilayan. This finding of the First Division proves that double-votes did not exist when the PCOS machines counted them on election day, [w]hich in turn proves that the ballots recounted and admitted by the trial court were tampered and were clear products of post-election fraud. Under these circumstances, the doctrines in Rosal v. COMELEC and Varias v. COMELEC edict that the tampered revision result which was the basis of the appealed decision cannot be admitted and cannot be used to overturn the the official count.[13] (Emphasis in the original; citations omitted)

Finally, the COMELEC En Banc ruled that Maliksi had no basis to call for the inhibition of Commissioners Sarmiento and Velasco. Commissioner Lim voluntarily inhibited himself from the case.

The dispositive portion of the COMELEC En Banc’s 14 September 2012 Resolution reads:

WHEREFORE, premises considered, the MOTION FOR RECONSIDERATION of Protestant-Appellee EMMANUEL L. MALIKSI is hereby DENIED for lack of merit. Consequently, we are AFFIRMING the August 15, 2012 Resolution of the First Division NULLIFYING the November 15, 2011 Decision of the Regional Trial Court, Branch 22 of Imus, Cavite.

SO ORDERED.[14]

Hence, Maliksi filed the present petition before this Court.

In a Resolution dated 11 October 2012, this Court issued a temporary restraining order directing the COMELEC En Banc to desist from implementing its 14 September 2012 Resolution.

The Issues

The overriding issue in this petition for certiorari is whether the COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its assailed Resolution dated 14 September 2012. In resolving this issue, we shall examine:

(1)
whether Maliksi was deprived of due process when the COMELEC First Division ordered on appeal the decryption, printing, and examination of the ballot images in the CF cards;
(2)
whether the ballot images in the CF cards are mere secondary evidence that should only be used when the physical ballots are not available;
(3)
whether the issue of tampering of ballots and ballot boxes was belatedly raised by Saquilayan; and
(4)
whether there were grounds for the inhibition of Commissioners Sarmiento and Velasco.

The Ruling of this Court

We dismiss the petition.

The Alleged Violation of Due Process

Maliksi alleged that he was denied due process when the COMELEC First Division directed the decryption, printing, and examination of the ballot images in the CF cards for the first time on appeal without notice to him, thus depriving him of his right to be present and observe the decryption proceedings.

The records point to the contrary.

In a Motion dated 21 March 2011 filed before the trial court,[15] Saquilayan moved for the printing of the images of the ballots in the CF cards of the contested clustered precincts. Thus, it cannot be said that Saquilayan asked for decryption of the ballot images for the first time only on appeal. Saquilayan had called the attention of the trial court to the unusually large number of double-shaded ballots affecting only the position of Mayor, giving rise to a strong suspicion of tampering of the ballots and ballot boxes. However, the trial court did not immediately act on his motion, as shown by Saquilayan’s Omnibus Motion To Resolve and For Issuance of Order[16] dated 14 April 2011.

In an Omnibus Order[17] dated 3 May 2011, the trial court granted Saquilayan’s motion for the printing of the ballot images in the CF cards. The trial court gave Saquilayan a period of 30 days within which to accomplish the printing of the ballot images. Saquilayan received a copy of the Omnibus Order on 10 May 2011. On 11 May 2011, he sent a letter to the COMELEC requesting it to forward at the soonest time the CF cards of the protested precincts to the COMELEC Election Records and Statistics Department (ERSD) to enable the decrypting and printing of the ballot images. It turned out that the CF cards were still with the trial court. Thus, in a Manifestation and Request[18] dated 20 May 2011, Saquilayan asked the trial court to forward the CF cards of the protested precincts to the ERSD to enable the COMELEC to decrypt and print the ballot images.

In an Order[19] dated 17 June 2011, the trial court noted that the ERSD already specified the main and back-up CF cards that were used in the 10 May 2010 National and Local Elections in Imus, Cavite and the decryption and copying of the ballot images was scheduled to start on 21 June 2011. The trial court then requested the ERSD to specify the procedure that the ERSD would undertake for the decryption of the ballot images. In a letter[20] dated 20 June 2011, Maliksi wrote the ERSD requesting that further proceedings be deferred and held in abeyance in deference to the 17 June 2011 Order of the trial court requiring the ERSD to specify the procedure it would undertake for the decryption.

Thereafter, Maliksi filed a Motion to Consider That Period Has Lapsed to Print Ballot’s Picture Images,[21] alleging that Saquilayan was only given a maximum of 30 days within which to accomplish the printing of the ballot images. Maliksi alleged that the period, which was until 22 June 2011, had lapsed and Saquilayan should be considered barred from having access to the electronic data in the COMELEC’s back-up server to print the ballot images in the CF cards. The trial court granted Maliksi’s motion in its Order dated 3 August 2011.[22] The trial court stated that Saquilayan should have included in his motion to have access to the electronic data a request for the trial court to turn over to the COMELEC the CF cards in its possession. As it turned out, the delay in the turn over of the CF cards likewise delayed the printing of the ballot images in the CF cards.

It is clear from the foregoing events that the delay in the printing of the ballot images could not be attributed to Saquilayan alone. In its 17 June 2011 Order, the trial court set a conference on 27 June 2011 upon Maliksi’s motion to request the ERSD to specify the procedure it would undertake in decrypting the CF cards. Maliksi then requested for the deferment of the printing of the ballot images in his 20 June 2011 letter to ERSD. However, during the 27 June 2011 hearing, Maliksi’s counsel filed in open court his Motion to Consider That Period Has Lapsed to Print Ballot’s Picture Images. The trial court acted on the motion by requiring Saguilayan’s counsel to comment within five days. The original reason for the hearing, which was for ERSD to specify the procedure it would undertake in decrypting the CF cards, was not even taken up. The trial court eventually granted Maliksi’s motion and declared that the period given to Saquilayan had lapsed. The failure of the trial court to turn over the CF cards to the ERSD, as well as the move of Maliksi for the ERSD to specify the procedure in decrypting the CF cards, contributed significantly to the delay in the printing of the ballot images.

The records also showed that Maliksi was aware of the decryption, printing, and examination of the ballot images by the COMELEC First Division. The COMELEC First Division issued an Order[23] dated 28 March 2012 directing Saquilayan to deposit the required amount for expenses for the supplies, honoraria, and fee for the decryption of the CF cards, and a copy of the Order was personally delivered to Maliksi’s counsel.[24] Maliksi’s counsel was likewise given a copy of Saquilayan’s Manifestation of Compliance with the 28 March 2012 Order.[25] In an Order[26] dated 17 April 2012, the COMELEC First Division directed Saquilayan to deposit an additional amount for expenses for the printing of additional ballot images from four clustered precincts, and a copy of the Order was again personally delivered to Maliksi’s counsel.[27] The decryption took weeks to finish.

Clearly, Maliksi was not denied due process. He received notices of the decryption, printing, and examination of the ballot images by the COMELEC First Division. In addition, Maliksi raised his objections to the decryption in his motion for reconsideration before the COMELEC En Banc. The Court has ruled:

x x x. The essence of due process, we have consistently held, is simply the opportunity to be heard; as applied to administrative proceedings, due process is the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential. The requirement is satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. x x x.[28]

There is no denial of due process where there is opportunity to be heard, either through oral arguments or pleadings.[29] It is settled that “opportunity to be heard” does not only mean oral arguments in court but also written arguments through pleadings.[30] Thus, the fact that a party was heard on his motion for reconsideration negates any violation of the right to due process.[31] The Court has ruled that denial of due process cannot be invoked where a party was given the chance to be heard on his motion for reconsideration.[32]

Evidentiary Value of the Digital Ballot Images

Maliksi assailed the use by the COMELEC First Division of the ballot images in the CF cards. He alleged that the best and most conclusive evidence are the physical ballots themselves, and when they cannot be produced or when they are not available, the election returns would be the best evidence of the votes cast.

We do not agree. We have already ruled that the ballot images in the CF cards, as well as the printouts of such images, are the functional equivalent of the official physical ballots filled up by the voters, and may be used in an election protest.

In the recent consolidated cases of Vinzons-Chato v. House of Representatives Electoral Tribunal and Panotes and Panotes v. House of Representatives Electoral Tribunal and Vinzons-Chato,[33] the Court ruled that “the picture images of the ballots, as scanned and recorded by the PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369.”[34] The Court declared that the printouts of the ballot images in the CF cards “are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest.” In short, both the ballot images in the CF cards and the printouts of such images have the same evidentiary value as the official physical ballots filled up by the voters.

In Vinzons-Chato and Panotes, the Court explained in length:

Section 2 (3) of R.A. No. 9369 defines “official ballot” where AES is utilized as the “paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form.”

An automated election system, or AES, is a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process. There are two types of AES identified under R.A. No. 9369: (1) paper-based election system; and (2) direct recording electronic system. A paper-based election system, such as the one adopted during the May 10, 2010 elections, is the type of AES that “use paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count. On the other hand, direct recording electronic election system “uses electronic ballots, records, votes by means of a ballot display provided with mechanical or electro-optical component that can be activated by the voter, processes data by means of computer programs, record voting data and ballot images, and transmits voting results electronically.

As earlier stated, the May 10, 2010 elections used a paper-based technology that allowed voters to fill out an official paper ballot by shading the oval opposite the names of their chosen candidates. Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan (PCOS) machine which scanned both sides of the ballots simultaneously, meaning, in just one pass. As established during the required demo tests, the system captured the images of the ballots in encrypted format which, when decrypted for verification, were found to be digitized representations of the ballots cast.

We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as scanned and recorded by the PCOS, are likewise “official ballots” that faithfully captures (sic) in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest.

It bears stressing that the digital images of the ballots captured by the PCOS machine are stored in an encrypted format in the CF cards. “Encryption is the process of encoding messages (or information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the use of an encryption key, which specifies how the message is to be encoded. Any adversary that can see the ciphertext, should not be able to determine anything about the original message. An authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually requires a secret decryption key, that adversaries do not have access to.”[35] (Citations omitted)

Hence, the COMELEC First Division did not gravely abuse its discretion in using the ballot images in the CF cards.

Maliksi further alleged that the ballot images in the CF cards should merely be considered as secondary evidence and should be resorted to only when the physical ballots are not available or could not be produced.

Maliksi is mistaken.

Rule 4 of A.M. No. 01-7-01-SC[36] is clear on this issue. It states:

SECTION 1. Original of an Electronic Document. - An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.

SECTION 2. Copies as equivalent of the originals. - When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.

Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. (Emphasis supplied)

The ballot images, which are digital, are electronically generated and written in the CF cards when the ballots are fed into the PCOS machine. The ballot images are the counterparts produced by electronic recording which accurately reproduce the original, and thus are the equivalent of the original. As pointed out by the COMELEC, “[t]he digital images of the physical ballots are electronically and instantaneously generated by the PCOS machines once the physical ballots are fed into and read by the machines.”[37] Hence, the ballot images are not secondary evidence. The official physical ballots and the ballot images in the CF cards are both original documents. The ballot images in the CF cards have the same evidentiary weight as the official physical ballots.

The Court notes that Maliksi did not raise any allegation that the use of the ballot images falls under any of the exceptions under Section 2, Rule 4 of A.M. No. 01-7-01-SC that would make their use inadmissible as original ballots.

Tampering of Ballots and Ballot Boxes

Maliksi alleged that there was no allegation of ballot and ballot box tampering before the trial court. He further alleged that the COMELEC First Division did not explain how it came to the conclusion that the integrity of the ballot boxes had been compromised or that there was ballot tampering.

The records reveal otherwise.

Contrary to Maliksi’s claim, Saquilayan questioned the integrity of the ballot boxes and election paraphernalia before the trial court. In an Urgent Manifestation of Concern and Objections[38] dated 8 June 2010, Saquilayan manifested his serious concern regarding the integrity of the ballot boxes and election paraphernalia which remained under the effective control of Maliksi. Saquilayan informed the trial court that his watchers were being limited to the outside of the building where the ballot boxes and election paraphernalia were kept, thus preventing them from looking over the security of the ballot boxes and election paraphernalia. In the same manifestation, Saquilayan categorically stated that he was “questioning the integrity of the ballot boxes and other election paraphernalia.”[39] Saquilayan also alleged in the same manifestation that the trial court could have prescribed a procedure that would allow his watchers to view the ballot boxes and other election paraphernalia that “would have prevented to some degree the tampering of the boxes and election material[s].”[40] Clearly, Saquilayan raised before the trial court the issue of tampering of the ballots and ballot boxes.

Further, the COMELEC En Banc clarified in its Comment[41] that the COMELEC First Division ordered the decryption, printing, and examination of the digital images because the COMELEC First Division “discovered upon inspection that the integrity of the ballots themselves was compromised and that the ballot boxes were tampered.”[42] The COMELEC First Division properly invoked Section 6(f), Rule 2 of the COMELEC Rules of Procedure which states:

Sec. 6. Powers and Duties of the Presiding Commissioner. - The powers and duties of the Presiding Commissioner of a Division when discharging its functions in cases pending before the Division shall be as follows:

x x x x

(f) To take such other measures as he may deem proper upon consultation with the other members of the Division.

In this case, the COMELEC En Banc categorically stated that the recounting of the physical ballots in the revision before the trial court yielded dubious results. The COMELEC En Banc stressed:

x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested) – thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those precincts. We find this too massive to have not been detected on election day, too specific to be random and too precise to be to be accidental – which leaves a reasonable mind no other conclusion except that those 8,387 cases of double-shading were purposely machinated. These dubious and highly suspicious circumstances left us with no other option but to dispense with the physical ballots and resort to their digital images. To recount the tampered ballots will only yield us tampered results defeating the point of this appeal.[43] (Emphasis supplied)

The tampering of the ballots and ballot boxes had been fully established and it justified the decryption of the ballot images in the CF cards.

Inhibition of Commissioners Sarmiento and Velasco

Maliksi alleged that the COMELEC En Banc gravely abused its discretion when it included in the body of its 14 September 2012 Resolution a discussion of his motion for the inhibition of Commissioners Sarmiento and Velasco instead of leaving it to their own discretion and prerogative.

We see nothing wrong with the inclusion of the matter of inhibition in the Resolution. Commissioners Sarmiento and Velasco signed the Resolution which means they concurred with the COMELEC En Banc’s ruling that the motion for their inhibition had no basis. Maliksi himself pointed out that the matter of inhibition is better left to the Commissioner’s discretion and thus, he could not impose the inhibition of Commissioners Sarmiento and Velasco just because Commissioner Lim inhibited himself from the case. Commissioners Sarmiento and Velasco are not even required, although they are neither prohibited, to individually explain their vote or to individually answer the motion for inhibition, like what Commissioner Lim did. In this case, the COMELEC En Banc ruled on the motion for inhibition. Moreover, the dissent of Commissioners Lim and Velasco in SPR (AE) No. 106-2011 is not a prejudgment of EAC (AE) No. A-22-2011. While the two cases involved the same parties, the only issue in SPR (AE) No. 106-2011 is the issuance of a temporary restraining order to stop the execution of the trial court’s decision pending appeal. Contrary to Maliksi’s allegation, the ruling in SPR (AE) No. 106-2011 on the temporary restraining order is not a confirmation of the validity of the decision subject of the appeal in EAC (AE) No. A-22-2011. In the same manner, the fact that Commissioner Elias R. Yusoph did not take part in SPR (AE) No. 106-2011 does not mean he should also take no part in EAC (AE) No. A-22-2011 considering that they involve different issues.

In sum, we find no grave abuse of discretion on the part of the COMELEC En Banc when it issued the assailed Resolution of 14 September 2012.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution promulgated on 14 September 2012 by the Commission on Elections En Banc which affirmed the 15 August 2012 Resolution of the Commission on Elections First Division declaring HOMER T. SAQUILAYAN as the duly-elected Municipal Mayor of Imus, Cavite. We LIFT the temporary restraining order issued on 11 October 2012. This decision is IMMEDIATELY EXECUTORY considering that the remainder of Saquilayan’s term of office is only less than five (5) months.

SO ORDERED.

Sereno, C.J., Del Castillo, Abad, Villarama, Jr., Perlas-Bernabe, and Leonen, JJ., concur.
Velasco, Jr., J., I join the dissent.
Leonardo-De Castro, Brion, Peralta, and Reyes, JJ., I join the dissent of J. Bersamin.
Bersamin, J., please see my dissent.
Perez, J., I certify that J. Perez left his vote of concurrence with the ponencia of J. Carpio.
Mendoza, J., I join the position of J. Bersamin.



[1] Under Rule 64 in relation to Rule 65 of the Rules of Court.

[2] Rollo, pp. 59-64. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene V. Sarmiento, Armando C. Velasco, and Elias R. Yusoph. Commissioner Lucenito N. Tagle took no part while Commissioner Christian Robert S. Lim inhibited himself from the case.

[3] Id. at 95-126. Signed by Commissioners Rene V. Sarmiento, Armando C. Velasco, and Christian Robert S. Lim.

[4] Id. at 95-96. The RTC decision was penned by Judge Cesar A. Mangrobang.

[5] Id. at 130-131.

[6] Id. at 102-104.
 
[7] Revised General Instructions for the Board of Election Inspectors (BEI) on the Voting, Counting, and Transmission of Results in Connection with the 10 May 2010 National and Local Elections.

[8] Rollo, pp. 125-126.

[9] Id. at 60.

[10] Id.

[11] Precinct Count Optical Scan.

[12] Rollo, p. 62.

[13] Id.

[14] Id. at 63.

[15] Id. at 283-285, Motion To Print Picture Images Of The Ballots Stored In The Memory Cards Of The Clustered Precincts.
 
[16] Id. at 286-292.

[17] Id. at 293-295.

[18] Id. at 298-300.

[19] Id. at 302-303.

[20] Id. at 304.

[21] Id. at 307-309.

[22] See rollo, p. 359. Omnibus Order dated 1 September 2011.

[23] Rollo, p. 362.

[24] Id. at 361.

[25] Id. at 363.

[26] Id. at 366.

[27] Id. at 365.

[28] Philippine Guardians Brotherhood, Inc. (PGBI) v. Commission on Elections, G.R. No. 190529, 29 April 2010, 619 SCRA 585, 596.

[29] Atty. Octava v. Commission on Elections, 547 Phil. 647 (2007).

[30] Salonga v. CA, 336 Phil. 514 (1997).

[31] See German Management & Services, Inc. v. Court of Appeals, 258 Phil. 289 (1989).

[32] Mendiola v. Civil Service Commission, G.R. No. 100671, 7 April 1993, 221 SCRA 295.

[33] G.R. Nos. 199149 and 201350, 22 January 2013.

[34] Republic Act No. 9369 refers to “AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED ‘AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMBANSA BLG. 881, AS AMENDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTIONS LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.’”

[35] Supra note 33.

[36] Rules on Electronic Evidence.

[37] Rollo, p. 507.

[38] Id. at 261-265.

[39] Id. at 262.

[40] Id. at 264.

[41] Id. at 484-516.

[42] Id. at 500.

[43] Id. at 60.





D I S S E N T


BERSAMIN, J.:

I DISSENT.

Petitioner Emmanuel L. Maliksi and respondent Homer T. Saquilayan vied for the position of Mayor of the Municipality of Imus, Cavite during the May 10, 2010 Elections. The Municipal Board of Canvassers (MBC) proclaimed Saquilayan as the winner garnering 48,181 votes, while Maliksi came in second with 39,682 votes. Maliksi filed an election protest in the Regional Trial Court (RTC) in Imus, Cavite, alleging discrepancies and irregularities in the counting of votes in 209 clustered precincts.

Based on the results of the revision, the RTC rendered its November 15, 2011 decision, declaring Maliksi as the duly-elected Mayor, thus:

x x x x

WHEREFORE, in view of all the foregoing, this Court finds the Election Protest filed by Emmanuel L. Maliksi meritorious. Accordingly, Emmanuel L. Maliksi is hereby DECLARED as the duly elected Mayor of the Municipality of Imus, Province of Cavite after having obtained the highest number of legal votes of 41,088 as against Protestant Homer T. Saquilayan’s 40,423 votes or a winning margin of 665 votes in favor of the former.

Thus, the election and proclamation of Homer T. Saquilayan as Mayor of Imus, Cavite is hereby ANNULLED and SET ASIDE and he is COMMANDED to immediately CEASE and DESIST from performing the duties and functions of said office.

Finally, pursuant to Section 4, Rule 14 of A.M. 10-4-1-SC, the Clerk of Court is hereby DIRECTED to personally deliver the copy of the signed and promulgated decision on the counsels of the parties.

SO ORDERED.[1]

Aggrieved, Saquilayan sought recourse from the Commission on Elections (COMELEC) by appeal (docketed as EAC (AE) No. A-22-2011).

In the meantime, Maliksi moved for execution pending appeal, and the RTC granted his motion. Thus, Maliksi was seated as Mayor, prompting Saquilayan to assail the grant of the motion via petition for certiorari in the COMELEC (docketed as SPR (AE) No. 106-2011).

After the parties filed their respective briefs in EAC (AE) No. A-22-2011, the COMELEC First Division issued an order dated March 28, 2012, requiring Saquilayan to deposit the amount necessary for the printing of the ballot images, thus:

x x x x

In as much as the printing of ballot image in the instant case would entail expense for supplies, honoraria, one-time fee for the use of the system in the decryption of the CF cards, and storage fee for the ballot boxes, it is hereby RESOLVED that the appellant be directed to deposit to the Cash Division of the Commission, the amount of One Hundred Nineteen Thousand Seven Hundred Fourteen Pesos (P119,714.00)

WHEREFORE, appellant shall deposit the required amount within three days from receipt hereof.

The Division Clerk of the Commission is DIRECTED to immediately purchase the necessary supplies needed in the printing of ballot image, hence, is authorized [to] withdraw the amount above stated. She shall submit the liquidation report on the cash advance within thirty (30) days from termination of proceedings.

SO ORDERED.[2]

The First Division later issued another order dated April 17, 2012, requiring Saquilayan to augment his cash deposit.[3]

Finally, on August 15, 2012, the First Division issued a resolution nullifying the RTC’s decision,[4] to wit:

x x x x

WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES, to:

1. NULLIFY the pronouncement of the lower court that protestant-appellee EMMANUEL L. MALIKSI is the duly-elected Municipal Mayor of Imus, Cavite and HEREBY DECLARES HOMER T. SAQUILAYAN as the duly-elected Municipal Mayor of the above-mentioned municipality;

2. Further, the Law Department is hereby DIRECTED:

  1. To conduct an investigation as to who were responsible for the tampering of the ballot boxes for purposes of filing the appropriate information for violation of election laws; and

  2. To conduct an investigation as to possible violation of election laws and Comelec Resolutions by herein protestant-appellee EMMANUEL L. MALIKSI as to how he was able to secure a photocopy of the official ballot which he attached in his Election Protest.
SO ORDERED.[5]

In its resolution, the First Division ratiocinated that:

x x x x

The Commission (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over the digital image of the appealed ballots.

In appreciating the appealed ballots, the Commission used the following guidelines:

x x x x

Pursuant to this principle, to be able to determine fully the true will of the electorate, we scrutinized the appealed ballots by using its digital images since there is an allegation of ballot tampering.

x x x x

After counting and appreciation of the appealed clustered precincts by this Commission (First Division), protestant-appellee Maliksi got FORTY THOUSAND NINETY-TWO (40,092) votes while protestee-appellant Saquilayan got FORTY-EIGHT THOUSAND FIVE HUNDRED TWENTY-ONE (48,521) or a difference of EIGHT THOUSAND FOUR HUNDRED TWENTY-NINE (8,429) votes.[6]

x x x x

Maliksi filed an omnibus motion,[7] seeking, inter alia, the reconsideration of the First Division Resolution based on the following arguments, namely: (a) the decryption proceedings violated his right to due process and were null and void for being held without notice to the parties; and (b) ballot images were secondary evidence that could be resorted to only in the event that the ballots were unavailable, or when sufficient proof existed that tampering or substitution had taken place.

On September 14, 2012, the COMELEC En Banc issued a resolution, disposing as follows:

x x x x

WHEREFORE, premises considered, the MOTION FOR RECONSIDERATION of Protestant-Appellee EMMANUEL L. MALIKSI is hereby DENIED for lack of merit. Consequently, we are AFFIRMING the August 15, 2012 Resolution of the First Division NULLIFYING the November 15, 2011 Decision of the Regional Trial Court, Branch 22 of Imus, Cavite.

SO ORDERED.[8]

Maliksi brought this special civil action for certiorari, reiterating that: (a) his right to due process of law was violated when he was not notified of the decryption, printing and examination of the digital images of the ballots; and (b) the printouts of the picture images of the ballots were secondary evidence to be resorted to only when the ballots were not available, or when there was evidence that the integrity of the ballots had not been preserved.

I vote to grant the petition for certiorari.

I submit that the proceedings conducted by the First Division, the results of which became the basis of the questioned resolution, were void and ineffectual for being in abject violation of Maliksi’s right to due process of law.

The picture images of the ballots are electronic documents that are regarded as the equivalents of the original official ballots themselves.[9] In Vinzons-Chato v. House of Representatives Electoral Tribunal,[10] the Court held that “the picture images of the ballots, as scanned and recorded by the PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369.  As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest.”

That the two documents — the official ballot and its picture image — are considered “original documents” simply means that both of them are given equal probative weight. In short, when either is presented as evidence, one is not considered as weightier than the other.

But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the official ballots to be the primary or best evidence of the voters’ will.  In that regard, the picture images of the ballots are to be used only when it is first shown that the official ballots are lost or their integrity has been compromised.

For instance, Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction over election protests, provides:

(m) In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount.

A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:

Rule 43. Conduct of the revision. – The revision of votes shall be done through the use of appropriate PCOS machines or manually and visually, as the Tribunal may determine, and according to the following procedures:

x x x x

(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or images stored are genuine and not merely substitutes. It is only upon such determination that the printed picture image can be used for the revision of votes.

x x x x

Also, the House of Representative Electoral Tribunal’s Guidelines on the Revision of Ballots requires a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, to wit:

Section 10. Revision of Ballots

x x x x

(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture images of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the revision. (as amended per Resolution of February 10, 2011).

x x x x

Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10, 2010 Elections) itself requires that “the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that (the ballots) cannot be recounted” before the printing of the image of the ballots should be made, and that such printing should be done “in the presence of the parties,” to wit:

x x x x

(g) Only when the Recount Committee, through its chairman, determines that the integrity of the ballots has been preserved or that no signs of tampering of the ballots are present, will the recount proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet or are otherwise in such a condition that it could not be recounted, the Recount Committee shall follow paragraph (l) of this rule.

x x x x

(l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes. (As amended by COMELEC Resolution No. 9164, March 16, 2011)

x x x x

All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the ballots may be resorted to only after the proper Revision/Recount Committee has first determined that the integrity of the ballots and the ballot box was not preserved. The foregoing rules further require that the decryption of the images stored in the CF cards and the printing of the decrypted images take place during the revision or recount proceedings, and that it is the Revision/Recount Committee that determines whether the ballots are unreliable.

There is a good reason for thus fixing where and by whom the decryption and the printing should be conducted. It is during the revision or recount conducted by the Revision/Recount Committee when the parties are allowed to be represented, with their representatives witnessing the proceedings and timely raising their objections in the course of the proceedings. Moreover, whenever the Revision/Recount Committee makes any determination that the ballots have been tampered and have become unreliable, the parties are immediately made aware of such determination.

Here, however, it was not the Revision/Recount Committee or the RTC exercising its original jurisdiction over the protest that made the finding that the ballots had been tampered, but the First Division in the exercise of its appellate jurisdiction. Maliksi was not immediately made aware of that crucial finding because the First Division did not even issue any written resolution stating its reasons for ordering the printing of the picture images.

The parties were formally notified that the First Division had found that the ballots had been tampered only when they received the resolution of August 15, 2012, whereby the First Division nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the resolution of the First Division that effect was unusually mute about the factual bases for the finding of ballot box tampering, and did not also particularize how and why the First Division was concluding that the integrity of the ballots had been compromised. All that the First Division uttered as justification was a simple generality of the same being apparent from the allegations of ballot and ballot box tampering and upon inspection of the ballot boxes, viz:

x x x x

The Commission (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over the digital image of the appealed ballots.[11] (Emphasis supplied)

x x x x

It was the COMELEC En Banc’s assailed resolution of September 14, 2012 that later on provided the explanation to justify the First Division’s resort to the picture images of the ballots, by observing that the “unprecedented number of double-votes” exclusively affecting the position of Mayor and the votes for Saquilayan had led to the belief that the ballots had been tampered.  However, that observation did not cure the First Division’s lapse and did not erase the irregularity that had already invalidated the First Division’s proceedings.

The blatant disregard of Maliksi’s right to be informed of the decision to print the picture images of the ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while  Maliksi’s claim of due process violation is directed only against the First Division’s recount proceedings that resulted in the prejudicial result rendered against him. I note that the First Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the chance to seek any reconsideration or even to assail the irregularly-held recount through a seasonable petition for certiorari in this Court. In that context, he had no real opportunity to assail the conduct of the recount proceedings.

I disagree that the service of the orders requiring Saquilayan to make the cash deposits for the printing of the picture images made Maliksi aware of the First Division’s decision to print the picture images. The orders still did not meet the requirement of due process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to surmise on the factual bases for finding the need to print  the picture images still violated the principles of fair play, because the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of the First Division.

As I see it, the First Division arbitrarily arrogated unto itself the conduct of the revision/recount proceedings and recounted the ballots, contrary to the regular procedure of remanding the protest to the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the revision of the ballots on the basis thereof.  Quite unexpectedly, the COMELEC En Banc upheld the First Division’s unwarranted deviation from the standard procedures by invoking the COMELEC’s power to “take such measures as [the Presiding Commissioner] may deem proper,” and even citing the Court’s minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on Elections[12] to the effect that the “COMELEC has the power to adopt procedures that will ensure the speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so long as the parties are amply heard on their opposing claims.”[13]

The COMELEC En Banc should not have upheld the deviation of the First Division. Based on the pronouncement in Alliance of Barangay Concerns v. COMELEC, the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases should still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims. The parties’ right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused to the parties, or to any of them.

Mendoza v. Commission on Elections[14] is instructive on when notice to and the participation of the parties are required. In that case, after the revision of the ballots and after the election protest case was submitted for decision, the ballots and ballot boxes were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending therein. The petitioner later learned that the COMELEC, with the permission of the SET, had meanwhile conducted proceedings within the SET’s premises. The petitioner claimed that his right to due process was violated because he was not given notice by the COMELEC that it would be conducting further proceedings within the SET premises. The Court held otherwise, however, and pointed out:

After consideration of the respondents’ Comments and the petitioner’s petition and Reply, we hold that the contested proceedings at the SET (“contested proceedings[”]) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioner's Reply:

“However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting “further proceedings” requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality.”

In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged. We find it significant that the private respondent’s Comment fully supported the COMELEC’s position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest.

To conclude, the rights to notice and to be heard are not material considerations in the COMELEC’s handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.[15] (Emphasis supplied.)

Here, the First Division denominated the proceedings it conducted as an “appreciation of ballots” like in Mendoza. Unlike in Mendoza, however, the proceedings conducted by the First Division were adversarial, in that the proceedings included the decryption and printing of the picture images of the ballots and the recount of the votes were to be based on the printouts of the picture images. The First Division did not simply review the findings of the RTC and the Revision Committee, but actually conducted its own recount proceedings using the printouts of the picture image of the ballots. As such, the First Division was bound to notify the parties to enable them to participate in the proceedings.

We should not ignore that the parties’ participation during the revision/recount proceedings would not benefit only the parties. Such participation was as vital and significant for the COMELEC as well, for only by their participation would the COMELEC’s proceedings attain credibility as to the result. In this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and printing of the picture images of the ballots and the recount proceedings. The COMELEC En Banc was merely content with listing the guidelines that the First Division had followed in the appreciation of the ballots and the results of the recount. In short, there was vagueness as to what rule had been followed in the decryption and printing proceeding.

Moreover, I respectfully point out that the First Division should not conduct the proceedings now being assailed because it was then exercising appellate jurisdiction as to which no existing rule of procedure allowed the First Division to conduct the recount in the first instance. The recount proceedings authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, are to be conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city officials
.[16]

On the other hand, we have Section 6 (l), Rule 15 of COMELEC Resolution No. 8804, as amended by COMELEC Resolution No.  9164, which clearly requires the parties’ presence during the printing of the images of the ballots, thus:

x x x x

(l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes. (Emphasis supplied.)

x x x x

I write this dissent not to validate the victory of any of the parties in the 2010 Elections. That is not the concern of the Court as yet. I dissent only because the Court should not countenance a denial of the fundamental right to due process, which is a cornerstone of our legal system.[17]

I am mindful of the urgent need to speedily resolve this protest because the term of the Mayoralty position involved is about to end. Accordingly, I urge that we quickly remand this case to the COMELEC, instead of to the RTC, for the conduct of the decryption, printing and recount proceedings, with due notice to all the parties and opportunity for them to be present and to participate during such proceedings. Nothing less serves the ideal objective safeguarded by the Constitution.

IN VIEW OF THE FOREGOING, I vote to GRANT the petition for certiorari, and to REMAND the protest to the Commission on Elections for the decryption of the picture images of the ballots after due authentication, for the printing of the decrypted ballot images, and for the conduct of the recount proceedings using the printouts of the ballot images, with notice to and in the presence of the parties or their representatives.



[1] Rollo, pp. 95-96

[2] Id. at 362.

[3] Id. at 366.

[4] Id. at 95-126.

[5] Id. at 125.

[6] Id. at 102-124.

[7] Id. at 76-92

[8] Id. at 63.

[9] 2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3 (r) defines “electronic document” as follows:

x x x x

(r) Electronic document—refers to the record of information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally-signed documents and any printout or output, readable by sight or other means that accurately reflects the electronic document.

For purposes of these Rules, an electronic document refers to either the picture image of the ballots or the electronic copies of the electronic returns, the statements of votes, the certificates of canvass, the audit log, and other electronic data processed by the PCOS and consolidation machines.

x x x x

Likewise, COMELEC Resolution No. 8804 (In Re: COMELEC Rules of Procedure on Disputes in an Automated Election System in Connection with the May 10, 2010 Elections), Rule 2, Section 1(q) defines “electronic document” as follows:

x x x x

(q) Electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means which accurately reflects the electronic document.

For purposes of these Rules, electronic documents refer to either the picture image of the ballots and the electronic copies of the electronic returns, the statements of votes, the certificates of canvass, the audit log, and of the other electronic data relative to the processing done by the PCOS machines and the various consolidation machines.

x x x x

[10] G.R. No. 199149, January 22, 2013.

[11] Rollo, p. 102.

[12] G.R. No. 199050, August 28, 2012.

[13] Rollo, pp. 60-61.

[14]  G.R. No. 188308, October 15, 2009, 603 SCRA 692.

[15] Id. at 716-717.

[16] COMELEC Resolution No. 8804, Rule 6, Section 1.

[17] Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635.

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