election part viii

7/31/2019 Election Part VIII

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Roque, et. al. v. Comelec, et. al.G.R. No. 188456, September 10, 2000

Facts and Issues: This is a petition for certiorari, prohibition and mandamus with prayer for a restraining order and/orpreliminary injunction. Petitioners on this taxpayers suit are skeptic about the automated election system and theuntested technology Comelec has chosen, alleging that such technology could lead to failure of election due tomassive cheating facilitated by machines. They contend that the Comelec committed GAD amounting to lack orexcess of jurisdiction in awarding the 2010 automation project to private respondents TIM and Smartmatic for thefollowing reasons: (1) Comelec didnt conduct any pilot testing of the PCOS machines offered by private

respondents Smartmatic and TIM, in violation of RA 8346 as amended by RA 9369; (2) the PCOS machines do notsatisfy the minimum system capabilities set by aforementioned laws; (3) private respondents did not submit therequired documents during the bidding process that should establish the due existence, composition and scope oftheir joint venture, in violation of the Courts holding in Information Technology Foundation of the Philippines v.Comelec (G.R. No. 159139, January 13, 2004); and (4) there was no valid joint venture agreement betweenSmartmatic and TIM during the bidding, in violation of the ruling in aforementioned case. What is more,petitioners assert, private respondents PCOS machines do not satisfy the minimum system capabilities set by thesame law envisaged to ensure transparent and credible voting, counting and canvassing of votes. To a specificpoint, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy in therecording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission,storage results and accurate ballot counting. In this particular regard, petitioners allege that, based on Smartmaticswebsite, the PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% accuracy in the

counting of votes.

Held: It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporatedaggroupment during the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation was without a vitiating effect on the validity of the tender offers . For the bidding ground rules, asspelled out primarily in the RFP and the clarificatory bid bulletins, does not require, for bidding purposes, that therebe an incorporation of the bidding joint ventures or consortiums. x x x Unlike the purported Mega Pacific consortiumin Infotech, the existence in this case of the bidding joint venture of Smarmatic and TIM is properly documented andspread all over the bid documents. And to stress, TIM and Smartmatic, in their JVA, unequivocally agreed betweenthemselves to perform their respective undertakings. And over and beyond their commitments to each other, theyundertook to incorporate, if called for by the bidding results, a JVC that shall be solidarily liable with them for anyactionable breach of the automation contract.

Court now holds that pilot testing is not necessary. While the law makes reference to a 2007 pilot exercise, whatit really exacts is that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to beprocured must have demonstrated its capability and success in either a local or a foreign electoral exercise. And asexpressly declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusiveof the systems fitness. As determined by the Comelec, the PCOS system had been successfully deployed in previouselectoral exercises in foreign countries, such as Ontario, Canada; and New York, USA, albeit Smartmatic was notnecessarily the system provider. But then, RA 9369 does not call for the winning bidder of the 2010 automationproject and the deploying entity/provider in the foreign electoral exercise to be one and the same entity. Neitherdoes the law incidentally require that the system be first used in an archipelagic country or with a topography or avoting population similar to or approximating that of the Philippines.

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x xx is hereby authorized to use an automated election system or systems in the same election in differentprovinces, whether paper-based or a direct recording electronic election system as it may deem appropriateand practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of resultsof electoral exercises: Provided, that for the regular national and local elections, which shall be heldimmediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and twoprovinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That localgovernment units whose officials have been the subject of administrative charges within sixteen (16) monthprior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen withoutthe consent of the Sanggunian of the local government unit concerned. The term local government unit as usedin this provision shall refer to a highly urbanized city or province. In succeeding regular national or localelections, the AES shall be implemented.

RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the second week of


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February 2007 or thereabout. The regular national and local elections referred to after the effectivity of this Actcan be no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, be usedin at least two highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicial noticethat the May 2007 elections did not deploy AES, evidently due to the mix of time and funding constraints.

From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exerciseunder harsh conditions would have been the ideal norm in computerized system implementation. The underscoredproviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the2007 national elections in the areas thus specified is an absolute must for the machines use in the 2010

national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commandsthe Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice ofsystem in, or a prerequisite for, the full automation of the May 2010 elections.

Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general policydeclaration: that Comelec is authorized to automate the entire elections . The second part states that for theregular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option,however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be moreprecise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to bechosen by the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections,commands thus: [I]n succeeding regular national or local elections, the [automated election system] shall be

implemented. Taken in its proper context, the last part is indicative of the legislative intent for the May 2010electoral exercise to be fully automated, regardless of whether or not pilot testing was run in the 2007 polls.

To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine thepurpose of RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May2007, the country would theoretically be barred forever from having full automation.

Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional fullautomation in the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine quanon to putting the system in operation in the 2010 elections is tantamount to reading into said section somethingbeyond the clear intention of Congress, as expressed in the provision itself.

Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA8436, as amended, defines an AES as a system using appropriate technology which has been demonstrated in thevoting, counting, consolidating, canvassing and transmission of election results, and other electoral processes . Onthe other hand, PCOS refers to a technology wherein an optical ballot scanner, into which optical scan paperballots marked by hand by the voter are inserted to be counted. What may reasonably be deduced from thesedefinitions is that PCOS is merely one of several automated voting, counting or canvassing technologies comingwithin the term AES, implying in turn that the automated election system or technology that the Comelec shalladopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted two highlyurbanized cities and provinces.

The enactment of RA 9525 is to us a compelling indication that it was never Congress intent to make the pilottesting of a particular automated election system in the 2007 elections a condition precedent to its use or awardof the 2010 Automation Project. The comment-in-intervention of the Senate says as much.

Further, the highly charged issue of whether or not the 2008 ARMM electionscovering, as NCC observed, threeconflict-ridden island provincesmay be treated as substantial compliance with the pilot test requirement mustbe answered in the affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that thesystem has been tried and tested in the ARMM elections last year, so we have to proceed with the totalimplementation of the law.

We note, though, the conflicting views of the NCC and ITFP on the matter. Suffice it to state at this juncture that thesystem used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly admit, a similaritywith the PCOS. The following, lifted from the Comelecs comment, is to us a fair description of how the two systems(PCOS and CCOS) work and where the difference lies:

xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a systemwhich uses the Optical Mark Reader (OMR), the same technology as the PCOS.


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Under the CCOS, the voters cast their votes by shading or marking the circles in the paperballots which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, theballot boxes were brought to the counting centers where they were scanned, counted andcanvassed.

xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at theprecinct level. The election results at the precincts are then electronically transmitted to the nextlevel, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the

precincts to the counting centers.[73]

Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections inaccordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agreeas such proposition has no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5clearly states that the AESshallbe implemented nationwide.

[74]It behooves this Court to follow the letter and

intent of the law for full automation in the May 2010 elections.

Court also holds that PCOS machines meets minimum capabilities standards provided by aforementioned laws. The presumption of regularity in the performance of regular duties, takes the demo-testing conducted by SBAC-TWGholds. On the question of the 2% to 10% failing rate, Court holds that such is irrelevant. Moreover, the PCOS, being a

paper-based technology, affords audit since the voter would be able to verify if the machine has scanned, recordedand counted his vote properly. The PCOS machine also has an LCD screen that can be programmed or configured todisplay to the voter his votes as read by the machine.

Court also holds that there has been no abdication of Comelecs mandate and responsibility when it comes to thepoll bodys constitutional mandate for election law enforcement. The proviso designating Smartmatic as the jointventure partner in charge of the technical aspect of the counting and canvassing wares does not to us translate,without more, to ceding control of the electoral process to Smartmatic. It bears to stress that the aforesaiddesignation of Smartmatic was not plucked from thin air, as it was in fact an eligibility requirement imposed, shouldthe bidder be a joint venture. Part of the automation contract also puts all prospective bidders under Comelecsupervision and control.

The role of Smartmatic TIM Corporation is basically to supply the goods necessary for the automation project, suchas but not limited to the PCOS machines, PCs, electronic transmission devices and related equipment, both hardwareand software, and the technical services pertaining to their operation. As lessees of the goods and the back-upequipment, the corporation and its operators would provide assistance with respect to the machines to be used bythe Comelec which, at the end of the day, will be conducting the election thru its personnel and whoever itdeputizes.

And if only to emphasize a point, Comelecs contract is with Smartmatic TIM Corporation of which Smartmatic is a40% minority owner, per the JVA of TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIMCorporation. Accordingly, any decision on the part or on behalf of Smartmatic will not be binding on Comelec. As anecessary corollary, the board room voting arrangement that Smartmatic and TIM may have agreed upon as jointventure partners, inclusive of the veto vote that one may have power over the other, should really be the leastconcern of the Comelec.
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Capalla, et. al. v. Comelec(consolidated with Guingona, et. al. v. Comelec and Smartmatic-TIM)G.R. No. 201112, June 13, 2012

Facts and Issues: Four consolidated cases. The Comelec issued Resolution No. 8608 awarding the automationcontract to Smartmatic-TIM. They entered into a contract for the provision of an automated election system for theMay 10, 2010 synchronized national and local elections (AES), which is a contract of lease of the AES with option topurchase (OTP) the goods listed in the contract. The Comelec was given until December 31 to exercise the option. On

September 23,2010, the Comelec partially exercised the OTP by purchasing 920 units for the special elections incertain areas in Basilan, Lanao del Sur, and Bulacan. Pursuant to this, Smartmatic-TIM Chair Flores proposed atemporary extension of the option period until March 31, 2011, waiving the storage and maintenance costs, but theComelec did not exercise the option within this period. Several extensions were thus given, until the final one inMarch 31, 2012.

On March 21, 2012, the Comelec issued Resolution No. 9376 resolving to exercise the OTP the PCOS and CCShardware and software in accordance with the AES contract between the Comelec and Smartmatic-TIM inconnection with the May 10, 2010 elections subject to the following conditions: (1) the warranties agreed upon inthe AES contract shall be in full force and effect; (2) the original price for the hardware and software covered by theOTP as specified in the AES contract shall be maintained, excluding the cost of the 920 units of PCOS and relatedperipherals previously purchased for use in the 2010 special elections; and (3) all other services related to the 2013

AES shall be subject to public bidding. On March 29, 2012, the Comelec issued Resolution No. 9377

[10]

resolving toaccept Smartmatic-TIMs offer to extend the period to exercise the OTP until March 31, 2012 and to authorizeChairman Brillantes to sign for and on behalf of the Comelec the Agreement on the Extension of the OTP Under theAES Contract

[11](Extension Agreement, for brevity). The aforesaid Extension Agreement was signed on March 30,

2012.[12]

On even date, the Comelec issued Resolution No. 9378[13]

resolving to approve the Deed of Sale betweenthe Comelec and Smartmatic-TIM to purchase the latters PCOS machines (hardware and software) to be used in theupcoming May 2013 elections and to authorize Chairman Brillantes to sign the Deed of Sale for and on behalf of theComelec. The Deed of Sale

[14]was forthwith executed.

First and second cases: Petitioners in this petition for certiorari, mandamus and prohibition impute GAD amountingto lack or excess of jurisdiction on part of the Comelec in issuing aforementioned resolutions and executing theExtension Agreement and Deed. They argue that if there is a necessity to purchase the PCOS machines, the Comelecshould follow RA 9184 requiring competitive public bidding. They also argue that the OTP clause in the Smarmatic-TIM contract should be invalid because such is a circumvention of the provisions of said law. They further assert thatthe Comelecs acceptance of Smartmatic-TIMs unilateral extension of the option period constitutes substantialamendment to the AES contract giving undue benefit to the winning bidder not available to the other bidders.Petitioners also contend that the Comelecs decision to purchase and use the PCOS machines is unconstitutional, as itallows the Comelec to abrogate its constitutional duty to safeguard the election process by subcontracting the sameto an independent provider (Smartmatic-TIM), who controls the software that safeguards the entire election process.The purchase of the PCOS machines for use in the May 2013 elections would be tantamount to a complete surrenderand abdication of the Comelecs constitutional mandate in favor of Smartmatic-TIM. The control of the software andprocess verification systems places the Comelec at the end of the process as it merely receives the report ofSmartmatic-TIM. This, according to petitioners, amounts to a direct transgression of the exclusive mandate of theComelec completely to take charge of the enforcement and administration of the conduct of elections. Lastly,petitioners aver that the Comelecs act of deliberately ignoring the palpable infirmities and defects of the PCOS

machines, as duly confirmed by forensic experts, is in violation of Section 2, Article V of the Constitution, as it fails tosafeguard the integrity of the votes.

Third and fourth cases: Petitioners pose that Resolution No. 9376 is totally null and void having been issued inviolation of the express provisions of RA 9184 and the AES contract. According to petitioners, the Comelec itselfprovided in its bid bulletins for a fixed and determinate period, and such period ended on December 31, 2010. Thus,Smartmatic-TIM could not have unilaterally extended the option period and the Comelec could not have also givenits consent to the extension. In extending the option period, it is tantamount to giving the winning bidder a benefitthat was not known and available to all bidders during the bidding of the 2010 AES, which is a clear violation of thebidding rules and the equal protection clause of the Constitution. Considering that the option period already expired,the purchase of the PCOS machines requires competitive public bidding. Lastly, petitioners claim that the Comeleccommitted grave abuse of discretion in opting to buy the PCOS machines and allied paraphernalia of Smartmatic-TIM

for the 2013 elections, despite incontrovertible findings of the glitches, malfunctions, bugs, and defects of the same.
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Simply stated, petitioners assail the validity and constitutionality of the Comelec Resolutions for the purchase of thesubject PCOS machines as well as the Extension Agreement and the Deed of Sale covering said goods mainly on threegrounds:

(1) the option period provided for in the AES contract between the Comelec and Smartmatic-TIM had already lapsedand, thus, could no longer be extended, such extension being prohibited by the contract;(2) the extension of the option period and the exercise of the option without competitive public bidding contravenethe provisions of RA 9184; and,(3) despite the palpable infirmities and defects of the PCOS machines, the Comelec purchased the same in

contravention of the standards laid down in RA 9369.

Smartmatic-TIM insists on the validity of the subject transaction based on the following grounds:(1) there is no prohibition either in the contract or provision of law for it to extend the option period; rather, thecontract itself allows the parties to amend the same;(2) the OTP is not an independent contract in itself, but is a provision contained in the valid and existing AES contract

that had already satisfied the public bidding requirements of RA 9184;(3) exercising the option was the most advantageous option of the Comelec; and(4) Smartmatic-TIM has an established track record in providing effective and accurate electoral solutions and itssatisfactory performance has been proven during the 2010 elections. The alleged glitches in the May 2010 elections,if at all, are not attributable to the PCOS machines.

Excerpts from the contract between Smartmatic-TIM and Comelec:

Article 4Contract Fee and Payment

x x x x

4.3. OPTION TO PURCHASE

In the event the COMELEC exercises its option to purchase the Goods as listed in Annex L,COMELEC shall pay the PROVIDER an additional amount of Two Billion One Hundred Thirty MillionSix Hundred Thirty- Five Thousand Forty-Eight Pesos and Fifteen Centavos (Php2,130,635,048.15) ascontained in the Financial Proposal of the joint venture partners Smartmatic and TIM.

In case COMELEC should exercise its option to purchase, a warranty shall be required in order toassure that: (a) manufacturing defects shall be corrected; and/or (b) replacements shall be made bythe PROVIDER, for a minimum period of three (3) months, in the case of supplies, and one (1) year,in the case of equipment, after performance of this Contract. The obligation for the warranty shallbe covered by retention money of ten percent (10%) of every option to purchase payment made.

The retention money will be returned within five (5) working days after the expiration of the abovewarranty, provided, however, that the goods supplied are in good operating condition free frompatent and latent defects, all the conditions imposed under the purchase contract have been fullymet, and any defective machines, except to those attributable to the COMELEC, have been either

repaired at no additional charge or replaced or deducted from the price under the Option toPurchase.

[32]

Article 6.6 thereof, in turn provides for the period within which the Comelec could exercise the option, thus:

Article 6COMELECs Responsibilities

x x x x

6.6. COMELEC shall notify the PROVIDER on or before 31 December 2010 of its option to purchasethe Goods as listed in Annex L.

[33]
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The Comelec did not exercise the option within the period stated in the above provision. Smartmatic, however,unilaterally extended the same until its final extension on March 31, 2012. The Comelec, thereafter, accepted theoption and eventually executed a Deed of Sale involving said goods. Now, petitioners come before the Courtassailing the validity of the extension, the exercise of the option and the Deed of Sale. In light of the AES contract,can Smartmatic-TIM unilaterally extend the option period? Can the Comelec accept the extension?

Held: Yes, Comelec can accept the extension. While the contract indeed specifically required the Comelec to notifySmartmatic-TIM of its OTP the subject goods until December 31, 2010, a reading of the other provisions of the AEScontract would show that the parties are given the right to amend the contract which may include the period within

which to exercise the option. There is, likewise, no prohibition on the extension of the period, provided that thecontract is still effective. Smartmatic-TIM categorically stated in its Consolidated Comment to the petitions that theComelec still retains P50M of the amount due Smartmatic-TIM as performance security. In short, the performancesecurity had not yet been released to Smartmatic-TIM which indicates that the AES contract is still effective and notyet terminated. Consequently, pursuant to Article 19[39] of the contract, the provisions thereof may still be amendedby mutual agreement of the parties provided said amendment is in writing and signed by the parties. In light of theprovisions of the AES contract, there is, therefore, nothing wrong with the execution of the Extension Agreement.

Considering, however, that the AES contract is not an ordinary contract as it involves procurement by a governmentagency, the rights and obligations of the parties are governed not only by the Civil Code but also by RA 9184.

The three principles of public bidding are:

(1) the offer to the public;(2) an opportunity for competition; and(3) a basis for the exact comparison of bids.

By its very nature, public bidding aims to protect public interest by giving the public the best possible advantagesthrough open competition. Competition requires not only bidding upon a common standard, a common basis, uponthe same thing, the same subject matter, and the same undertaking, but also that it be legitimate, fair and honestand not designed to injure or defraud the government. The essence of competition in public bidding is that thebidders are placed on equal footing which means that all qualified bidders have an equal chance of winning theauction through their bids. Another self-evident purpose of public bidding is to avoid or preclude suspicion offavoritism and anomalies in the execution of public contracts.

A winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon.However, such changes must not constitute substantial or material amendments that would alter the basicparameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the sameterms. The determination of whether or not a modification or amendment of a contract bidded out constitutes asubstantial amendment rests on whether the contract, when taken as a whole, would contain substantially differentterms and conditions that would have the effect of altering the technical and/or financial proposals previouslysubmitted by the other bidders. The modifications in the contract executed between the government and thewinning bidder must be such as to render the executed contract to be an entirely different contract from the onebidded upon.

Court rules however that the Smartmatic-TIM contract is not against public policy:(1) It was not granted additional rights not previously available to the other bidders. The AES contract is

primarily a contract of lease of goods listed in the contract and purchase of services also stated in the

contract. Section 4.3 thereof gives the Comelec the OTP the goods agreed upon. The same provision statesthe conditions in exercising the option, including the additional amount that the Comelec is required to payshould it exercise such right. It is, therefore, undisputed that this grant of option is recognized by bothparties and is already a part of the principal contract of lease. Having been included in the RFP and the bidbulletins, this right given to the Comelec to exercise the option was known to all the bidders and wasconsidered in preparing their bids.

(2) Amendment of AES contract is not substantial. P11B budget, and bids were accepted as long as they werenot to exceed this amount. Smartmatic-TIM won the competitive public bidding and the AES contract wasexecuted. The AES contract not only indicated the contract price for the lease of goods and purchase ofservices which is P7,191,484,739.48, but also stated the additional amount that the Comelec has to pay if itdecides to exercise the option which is P2,130,635,048.15. Except for the period within which the Comeleccould exercise the OTP, the terms and conditions for such exercise are maintained and respected. Admittedly,

the additional amount the Comelec needed to pay was maintained (less the amount already paid when itpurchased 920 units of PCOS machines with corresponding CCS for the special elections in certain areas in


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the provinces of Basilan, Lanao del Sur and Bulacan) subject to the warranties originally agreed upon in theAES contract. The contract amount not only included that for the contract of lease but also for the OTP.Hence, the competitive public bidding conducted for the AES contract was sufficient. A new public biddingwould be a superfluity.

(3) Amendment to the AES contract is more advantageous to the public. Under the set-up, the owner of theproperty, which is Smartmatic-TIM, gives the optionee, which is the Comelec, the right to accept the formersoffer to purchase the goods listed in the contract for a specified amount, and within a specified period. Thus,the Comelec is given the right to decide whether or not it wants to purchase the subject goods. It is,therefore, uncertain whether or not the principal contract would be entered into. The owner of the property

would then have to wait for the optionee to make a decision. A longer option period would mean that moretime would be given to the optionee to consider circumstances affecting its decision whether to purchase thegoods or not. On the part of Smartmatic-TIM, it would have to wait for a longer period to determinewhether the subject goods will be sold to the Comelec or not, instead of freely selling or leasing them toother persons or governments possibly at a higher price. This is especially true in this case as the terms andconditions for the exercise of the option including the purchase price, had been included in the AES contractpreviously bidded upon. The parties are bound to observe the limitations embodied therein, otherwise, anew public bidding would be needed.

While there is skepticism that Smartmatic-TIM would be able to correct the supposed defects prior to the2013 elections because of its inaction during the two years prior to the exercise of the option, we agree withthe opinion of Chairman Sixto S. Brillantes, Jr. that it is absurd to expect Smartmatic-TIM to invest time,

money and resources in fixing the PCOS machines to the specifications and requirements of the Comelecwhen prior to the exercise of the OTP, they do not have the assurance from the Comelec that the latter willexercise the option.

As the Comelec is confronted with time and budget constraints, and in view of the Comelecs mandate toensure free, honest, and credible elections, the acceptance of the extension of the option period, theexercise of the option, and the execution of the Deed of Sale, are the more prudent choices available to theComelec for a successful 2013 automated elections. The alleged defects in the subject goods have beendetermined and may be corrected as in fact fixes and enhancements had been undertaken by Smartmatic-TIM. Petitioners could not even give a plausible alternative to ensure the conduct of a successful 2013automated elections, in the event that the Court nullifies the Deed of Sale.


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Republic Act No. 9369 January 23, 2007

Amending RA 8436

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 PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT

NO. 7166 AND OTHER RELATED ELECTIONS LAWS,

PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES"

Be it enacted by the Senate and the House of Representatives

of the Philippines in Congress assembled:

SECTION 1. Section 1 of Republic act No.8436 is hereby

amended to read as follows:

"SECTION 1.Declation of Policy. - It is policy of the

State to ensure free, orderly, honest, peaceful,

credible and informed elections, plebiscites,

referenda, recall and other similar electoral

exercises by improving on the election process and

adopting systems, which shall involve the use of an

automated election system that will ensure the

secrecy and sanctity of the ballot and all election,

consolidation and transmission documents on order

that the process shall be transparent and credible

and that the results shall be fast, accurate and

reflective of the genuine will of the people.

"The State recognizes the mandate and authority ofthe Commission to prescribe adoption and use of

the most suitable technology of demonstrated

capability taking into account the situation

prevailing in the area and the funds available for

the purpose."

SEC. 2. Section 2 of Republic Act No. 8436 is hereby amended

to read as follows:

"SEC. 2. Definition of Terms. - As used in this Act, the

following terms shall mean:

"1. Automated election system, hereinafter to as

AES - a system using appropriate technology which

has been demonstrated in the voting, counting,

consolidating, canvassing, and transmission of

election result, and other electoral process;

"2. Electronic transmission - conveying data in

electronic form from one location to other;

"3. Official ballot- where AES is utilized, refers to

the paper ballot, whether printed or generated by

the technology applied, that faithfully captures orrepresents the votes cast by a voter recorded or to

be recorded in electronic form;

"4. Election returns - a document in electronic and

printed form directly produced by the counting or

voting machine, showing the date of the election,

the province, municipality and the precinct in which

it is held and the votes in figures for each candidate

in a precinct in areas where AES is utilized;

"5. Statement of votes - a document containing the

votes obtained by candidates in each precinct in a

city/municipality;

"6. City/municipal/district/provincial certificate of

canvass - a document in electronic and printed form

containing the total votes in figures obtained by

each candidate in a city/ municipality/ district/

province as the case may be. The electronic

certificates of canvass shall be the official canvass

result in the aforementioned jurisdictions;

"7. Paper-based election system - a type of

automated election system that use paper ballots,

records and counts votes, tabulates,

consolidates/canvasses and transmits electronically

the results of the vote count;"

"8. Direct recording electronic election system - a

type or automated election system that 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 a computer

programs, record voting data and ballot images, and

transmits voting results electronically;

"9. Counting center- a public places within the

city/municipality or in such other places as may be

designated by the Commission where the official

ballots cast in various precincts of the

city/municipality shall be counted. Polling places or

voting centers may also be designated as counting

centers;

"10. Continuity plan - a list of contingency measures,

and the policies for activation of such, that are put in

place to ensure continuous operation of the AES;

"11. Disabled voters - a person with impaired

capacity to use the AES;

"12. Source code - human readable instructions that

define what the computer equipment will do; and

"13. Station- refers to a polling place, counting

center, municipal or provincial canvassing center."


to read as follows:

"SEC 3. Board of Election Inspectors. - Where AES

shall be adopted, at least one member of the Board

of Election Inspectors shall be an information
http://www.lawphil.net/statutes/repacts/ra1997/ra_8436_1997.htmlhttp://www.lawphil.net/statutes/repacts/ra1997/ra_8436_1997.htmlhttp://www.lawphil.net/statutes/repacts/ra1997/ra_8436_1997.html


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technology-capable person, who is trained or

certified by the DOST to use the EAS. Such

certification shall be issued by the DOST, free of

charge."

SEC. 4. Section 4 of Republic Act No. 8436 is hereby deleted.

The succeeding sections are hereby renumbered accordingly.


to read as follows:

"SEC. 4 Information Technology Support for the

Board of Canvassers. - To implement the AES, each

board of canvassers shall be assisted by an

information technology-capable person authorized

to operate the equipment adopted for the elections.

The Commission shall deputized information

technology personnel from among the agencies and

instrumentalities of the government, including

government-owned and controlled corporations.

Theper diem of the deputized personnel shall be the

same as that of the members of the board ofcanvassers."


to read as follows:

"SEC. 5Authority 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 or systems in the same

election in different provinces, whether paper-based

or a direct recording electronic election system as itmay deem appropriate and practical for the process

of voting, counting of votes and

canvassing/consolidation and transmittal of results

of electoral exercises: Provided, that for the regular

national and local election, which shall be held

immediately after effectivity of this Act, the AES

shall be used in at least two highly urbanized cities

and two provinces each in Luzon, Visayas and

Mindanao, to be chosen by the

Commission: Provided, further, That local

government units whose officials have been the

subject of administrative charges within sixteen (16)month prior to the May 14, 2007 election shall not

be chosen: Provided, finally, That no area shall be

chosen without the consent of the Sanggunian of

the local government unit concerned. The term local

government unit as used in this provision shall refer

to a highly urbanized city or province. In succeeding

regular national or local elections, the AES shall be

implemented nationwide."


to read the follows:

"SEC.6. Minimum System Capabilities. - "The

automated election system must at least have the

following functional capabilities:

(a) Adequate security against unauthorized access:

(b) Accuracy in recording and reading of votes as

well as in the tabulation, consolidation/canvassing,

electronic transmission, and storage of results;

(c) Error recovery in case of non-catastrophic failure

of device;

(d) System integritywhich ensures physical stability

and functioning of the vote recording and counting

process;

(e) Provision for voter verified paper audit trail;

(f) System auditability which provides supporting

documentation for verifying the correctness of

reported election results;

(g) An election management system for preparing

ballots and programs for use in the casting andcounting of votes and to consolidate, report and

display election result in the shortest time possible;

(h) Accessibility to illiterates and disabled voters;

(i) Vote tabulating program for election,

referendum or plebiscite;

(j) Accurate ballot counters;

(k) Data retention provision;

(l) Provide for the safekeeping, storing and

archiving of physical or paper resource used in the

election process;

(m) Utilize or generate official ballots as herein

defined;

(n) Provide the voter a system of verification to find

out whether or not the machine has registered his

choice; and

(o) Configure access control for sensitive system

data and function.

"In the procurement of this system, the Commission

shall develop and adopt an evaluation system to

ascertain that the above minimum system

capabilities are met. This evaluation system shall be

developed with the assistance of an advisory

council."

SEC.8. A new Section 7 is hereby provided to read as follows:

"SEC.7 Communication Channels for Electronic

Transmissions. - all electronic transmissions by and

among the EAS and its related components shall

utilizes secure communication channels as


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10

recommended by the Advisory Council, to ensure

authentication and integrity of transmission."

SEC. 9. New section 8,9, 10 and 11 are hereby provided to

read as follows:

"SEC.8. The Advisory Council. - The Commission shall

create an advisory Council, hereafter referred to as

the Council, which shall be convened not later than

eighteen (18) months prior to the next schedule

electoral exercise, and deactivated six months after

completion of canvassing: Provided, for purposes of

the 2007 elections, the Advisory Council shall be

immediately convened within ten (10) days after the

effectivity of this Act.

"The Council shall be composed of the following

members, who must be registered Filipino voters,

of known independence, competence and probity;

"(a) The Chairman of the Commission on

information and Communications Technology

(CICT) who shall act as the chairman of the council;

"(b) One member from the Department of Science

and Technology;

"(c) One member from the Department of

Education;

"(d) One member representing the academe, to be

selected by the chair of the Advisory Council from

among the list of nominees submitted by the

country's academic institutions;

"(e) Three members representing ICT professional

organizations to be selected by the chair of the

Advisory Council from among the list of nominees

submitted by Philippines-based ICT professional

organization. Nominees shall be individuals, at least

one of whom shall be experience in managing or

implementing large-scale IT projects.

"(f) Two members representing nongovernmental

electoral reform organizations, to be selected by

the chair of the Advisory Council from among the list

of nominees submitted by the country's

nongovernmental electoral reform organizations.

"A person who is affiliated with any political party

or candidate for any national position, or is related

to a candidate for any national position by affinity

or consanguinity within the fourth civil degree,

shall not be eligible for appointment or designation

to the Advisory Council. Should any such situation

arise at any time during the incumbency of a

member, the designation or appointment of that

member, shall ipso facto be terminated.

"Any member of the advisory council is prohibited

from engaging, directly or indirectly, with any entity

that advocates, markets, imports, produces or in

any manner handles software, hardware or any

equipment that may be used for election purposes

for personal gain".

"Any violation of the two immediate preceding

paragraphs shall disqualify said member from the

Advisory Council and shall be punishable as

provided in this Act and shall be penalized in

accordance with the Anti-Graft and Corrupt

Practices Act and other related laws.

"The council may avail itself of the expertise and

services of resource person who are known

independence, competence and probity, are

nonpartisan, and do not posses any of the

disqualifications applicable to a member of the

Advisory Council as provided herein. The resource

persons shall also be subject to the same

prohibitions and penalties as the members of the

Advisory Council.

"The commission on information and

communications technology (CICT), shall include in

its annual appropriation the funds necessary to

enable the council to effectively perform its

functions".

"SEC. 9. Function of the Advisory Council. - the

Council shall have the following functions:

1. Recommend the most appropriate, secure,

applicable and cost-effective technology to be

applied in the AES, in whole or in part, at thatspecific form in time.

2. Participate as nonvoting members of the Bids and

Awards Committee in the conduct of the bidding

process for the AES. Members of the Advisory

Council representing the ICT Professionals

organizations are hereby excluded from

participating in any manner in the Bids and Awards

Committee.

3. Participate as nonvoting members of the steering

committee tasked with the implementation of theAES, Members of the Advisory Council representing

the ICT professional organization are hereby

excluded from participating in any manner in the

steering committee.

4. Provide advice and assistance in the review of the

systems planning, inception, development, testing,

operationalization, and evaluation stages.

5. Provided advice and/or assistance in the

identification, assessment and resolution of systems

problems or inadequacies as may surface orresurface in the course of the bidding, acquisition,

testing, operationalization, re-use, storage or


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disposition of the AES equipment and/or resources

as the case may be.

6. Provided advice and/or assistance in the risk

management of the AES especially when a

contingency or disaster situation arises.

7. Prepare and submit a written report, which shall

be submitted within six months from the date of the

election to the oversight committee, evaluating the

use of the AES.

Nothing in the role of the Council or any outside

intervention or influence shall be construed as an

abdication or diminution of the Commission's

authority and responsibility for the effective

development, management and implementation of

the AES and this Act."

The Advisory Council shall be entitled to a just and

reasonable amount ofper diem allowances

and/orhonoraria to cover the expenses of the

services rendered chargeable against the budget of

the Commission."

"SEC. 10. The Technical Evaluation Committee. - The

Commission, in collaboration with the chairman of

the Advisory Council, shall establish an independent

technical evaluation committee, herein known as

the Committee, composed of a representative each

from the Commission, the Commission on

Information and Communications Technology and

the Department of Science and Technology who

shall act as chairman of the Committee.

"The Committee shall be immediately convened

within ten (10) days after the effectively of this Act."

"SEC. 11. Functions of the Technical Evaluation

Committee. - The Committee shall certify, through

an established international certification entity to be

chosen by the Commission from the

recommendations of the Advisory Council, not later

than three months before the date of the electoral

exercises, categorically stating that the AES,

including its hardware and software components, isoperating properly, securely, and accurately, in

accordance with the provisions of this Act based,

among others, on the following documented results:

1. The successful conduct of a field testing process

followed by a mock election event in one or more

cities/municipalities;

2. The successful completion of audit on the

accuracy, functionally and security controls of the

AES software;

3. The successful completion of a source code

review;

4. A certification that the source code is kept in

escrow with the Bangko Sentral ng Pilipinas;

5. A certification that the source code reviewed is

one and the same as that used by the equipment;

and

6. The development, provisioning, and

operationalization of a continuity plan to cover risks

to the AES at all points in the process such that a

failure of elections, whether at voting, counting or

consolidation, may be avoided.

For purposes of the 2007 elections, the certification

shall be done not later than eight weeks prior to the

date of the elections.

"If the Commission decides to proceed with the use

of the AES without the Committee's certification, it

must submit its reason in writing, to the Oversight

Committee, no less than thirty (30) days prior to the

electoral exercise where the AES will be used.

"The Committee may avail itself of the expertise and

service of resource persons who are of known

independence, competence and probity, are no

partisan, and who do not possess any of the

disqualification applicable to a member of the

Advisory Council as provided herein. The resource

persons shall also be subject to the same

prohibitions and penalties as the members of the

Advisory Council.

"The Committee shall closely coordinate with the

steering committee of the Commission tasked with

the implementation of the AES in the identification

and agreement of the project deliverables and

timelines, and in the formulation of the acceptance

criteria for each deliverable."

SEC. 10. Section 8 of Republic Act No. 8436 is hereby

amended to read as follow:

"SEC.12. Procurement of Equipment and Materials. -

To achieve the purpose of this Act, the Commission

in authorized to procure, in accordance with existing

laws, by purchase, lease, rent or other forms of

acquisition, supplies, equipment, materials,

software, facilities, and other service, from local or

foreign sources free from taxes and import duties,

subject to accounting and auditing rules and

regulation. With respect to the May 10, 2010

election and succeeding electoral exercises, the

system procured must have demonstrated

capability and been successfully used in a prior

electoral exercise here or board. Participation in

the 2007 pilot exercise shall not be conclusive of

the system's fitness.

"In determining the amount of any bid from a

technology, software or equipment supplier, the


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cost to the government of its deployment and

implementation shall be added to the bid price as

integral thereto. The value of any alternative use to

which such technology, software or equipment can

be put for public use shall not be deducted from the

original face value of the said bid."


amended to read as follow:

"SEC.13. Continuity Plan. - The AES shall be so

designed to include a continuity plan in case of a

systems breakdown or any such eventuality which

shall result in the delay, obstruction or

nonperformance of the electoral process.

Activation of such continuity and contingency

measures shall be undertaken in the presence of

representatives of political parties and citizen's arm

of the Commission who shall be notified by the

election officer of such activation.

"All political parties and party-lists shall be furnished

copies of said continuity plan at their official

addresses as submitted to the Commission. The list

shall be published in at least two newspaper of

national of circulation and shall be posted at the

website of the Commission at least fifteen (15) days

prior to the electoral activity concerned."



"SEC.14. Examination and Testing of Equipment or

Device of the AES and Opening of the Source Codefor Review. - The Commission shall allow the

political parties and candidates or their

representatives, citizens' arm or their

representatives to examine and test the equipment

or device to be used in the voting and counting on

the day of the electoral exercise, before voting

starts. Test ballots and test forms shall be provided

by the Commission.

"Immediately after the examination and testing of

the equipment or device, parties and candidates or

their representatives, citizen's arms or theirrepresentatives, may submit a written comment to

the election officer who shall immediately transmit

it to the Commission for appropriate action.

"The election officer shall keep minutes of the

testing, a copy of which shall be submitted to the

Commission together with the minute of voting."

"Once an AES technology is selected for

implementation, the Commission shall promptly

make the source code of that technology available

and open to any interested political party or groupswhich may conduct their own review thereof."

SEC. 13. Section 11 of republic Act No. 8436 is hereby


"SEC.15. Official Ballot. - The Commission shall

prescribe the format of the electronic display

and/or the size and form of the official ballot,

which shall contain the titles of the position to be

filled and/or the proposition to be voted upon in an

initiative, referendum or plebiscite. Where

practicable, electronic displays must be constructed

to present the names of all candidates for the same

position in the same page or screen, otherwise, the

electronic displays must be constructed to present

the entire ballot to the voter, in a series of

sequential pages, and to ensure that the voter sees

all of the ballot options on all pages before

completing his or her vote and to allow the voter to

review and change all ballot choices prior to

completing and casting his or her ballot. Under

each position to be filled, the names of candidates

shall be arranged alphabetically by surname and

uniformly indicated using the same type size . Themaiden or married name shall be listed in the official

ballot, as preferred by the female candidate. Under

each proposition to be vote upon, the choices

should be uniformly indicated using the same font

and size.

"A fixed space where the chairman of the board of

election inspector shall affix her/her signature to

authenticate the official ballot shall be provided.

"For this purpose, the Commission shall set the

deadline for the filing of certificate ofcandidacy/petition of registration/manifestation to

participate in the election. Any person who files his

certificate of candidacy within this period shall only

be considered as a candidate at the start of the

campaign period for which he filed his certificate of

candidacy: Provided, That, unlawful acts or

omissions applicable to a candidate shall effect only

upon that start of the aforesaid campaign

period: Provided, finally, That any person holding a

public appointive office or position, including active

members of the armed forces, and officers, and

employees in government-owned or-controlled

corporations, shall be considered ipso

factorresigned from his/her office and must vacate

the same at the start of the day of the filing of

his/her certification of candidacy.

"Political parties may hold political conventions to

nominate their official candidate within thirty (30)

days before the start of the period for filing

certificate of candidacy.

"With respect to a paper-based election system, 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


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contact the services of private printers upon

certification by the National Printing Office/Bangko

Sentral ng Pilipinasthat it cannot meet the printing

requirements. Accredited political parties and

deputized citizen's arms of the Commission shall

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

necessary safeguards, such as, but not limited to,

bar codes, holograms, color shifting ink,

microprinting, are provided on the ballot.

"The official ballots shall be printed and distributed

to each city/municipality at the rate of one ballot for

every registered voter with a provision of additional

three ballots per precinct."

SEC. 14. Section 13 of republic Act No. 8436 is hereby


"SEC. 17. Ballot box. - Where applicable, 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."



"SEC. 18. Procedure in voting. - The Commission

shall prescribe the manner and procedure of

voting, which can be easily understood and

followed by the voters, taking into consideration,

among other things, the secrecy of the voting."



"SEC. 19. Closing of polls.- The Commission shall

prescribe the time, manner and procedure of closing

the polls and the steps for the correct reporting of

votes cast and the proper conduct of counting for

areas covered by the AES."



"SEC. 20. Notice of Designation of Counting Centers.

- The election officer shall post prominently in

his/her office, in the bulletin boards at the

city/municipal hall and in three other conspicuous

places in the city/municipality, the notice on the

designated counting center(s) for at least three

weeks prior to election day. The notice shall specify

the precincts covered by each counting center and

the number of registered voters in each of said

precincts. The election officer shall also furnish a

copy of the notice to the headquarters or official

address of the political parties or independent

candidates within the same period. The election

officer shall post in the Commission website

concerned the said notice and publish the notice in

the local newspaper. Where the polling place or

voting center is also the designated counting center,

such information shall be contained in the notice.

"The Commission may not designate as counting

center any building or facility located within the

premises of a camp, reservation compound,

headquarters, detachment, or field office of the

military, police, prison or detention bureau, or any

law enforcement or investigation agency."



"SEC. 21. Counting procedure. - The Commission

shall prescribe the manner and procedure of

counting the votes under the automated

system: Provided, that apart from the electronically

stored result, thirty (30) copies of the election returnare printed."



"SEC. 22. Electronic Returns. - Each copy of the of

the printed election returns shall bear appropriate

control marks to determine the time and place of

printing. Each copy shall be signed and

thumbmarked by all the members of the board of

election inspectors and the watchers present. If any

member of the board of election inspectors presentrefuses to sign, the chairman of the board shall note

the same copy in each copy of the printed election

returns. The member of the board of election

inspectors concerned refusing to sign shall be

compelled to explain his or her refusal to do so.

Failure to explain an unjustifiable refusal to sign

each copy of the printed election return by any

member of the board of election inspectors shall be

punishable as provided in this Act. The chairman of

the boards shall then publicly read and announce

the total numbers of registered voters, the total

number of voters who actually voted and the totalnumbers 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;


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3) The third copy, to the commission;

4) The fourth copy, to the citizen's arm authorized

by the Commission to conduct an unofficial count

5) The fifth copy, to the dominant majority party as

determined by the Commission in accordance with

law;

6) The six copy, to the dominant minority party as


law; and

7) The seventh copy shall be deposited inside the

compartment of the ballot box for valid ballots.

8) The eight copy to the Provincial Board of

canvassers;

9) The ninth to the eighteenth copies, shall be given

to the ten (10) accredited major national parties,excluding the dominant majority and minority

parties, in accordance with a voluntary agreement

among them. If no such agreement is reached, the

Commission shall decide which parties shall receive

the copies on the basis of the criteria provided in

Section 26 of Republic Act No. 7166;

10) The nineteenth and twentieth copies, to the two

accredited major local parties in accordance with a

voluntary agreement among them. If no such

agreement is reached, the commission shall decide

which parties shall receive the copies on the basis of

criteria analogous to that provided in Section 26 of

Republic Act No. 7166;

11) The twenty-first to the twenty-fourth copies, to

national broadcast or print media entities as may be

equitably determined by the Commission in view of

propagating the copies to the widest extent

possible;

12) The twenty-fifth and twenty-six copies, to local

broadcast or print media entities as may be



possible; and

13) The twenty-seventh to the thirtieth copies, to

the major citizen's arms, including the accredited

citizen's arm, and other non-partisan groups or

organization enlisted by the Commission pursuant to

Section 52(k) of Batas Pambansa Blg. 881. Such

citizens' arm, groups and organization may use the

four certified copies of election returns for the

conduct of citizens' quick counts at the local or

national levels;

"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;

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 authorizedby the Commission to conduct an unofficial count;

5) The fifth copy, to the dominant majority party as


law;

6) The sixth copy, to the dominant minority party as


law; and

7) The seventh copy shall be deposited inside the

copy shall deposited inside the compartment of theballot box for valid ballots.

8) The eight copy to be posted conspicuously on a

wall within the premises of the polling place or

counting center;

9) The ninth to the eighteenth copies, shall be given

to the ten (10) accredited major national parties,

excluding the dominant majority and minority



Commission shall decide which parties shall receivethe copies on the basis of the criteria provided in


10) The nineteenth and twentieth copies shall be

given to the two accredited major local parties in

accordance with a voluntary agreement among

them. If no such agreement is reached, the


the copies on the basis of criteria analogous to that

provided in Section 26 of republic Act No. 7166;

11) The twenty-first to the twenty-fifth copies, tonational broadcast or print media entities as may be



possible;

12) The twenty-sixth and twenty-seventh copies, to

local broadcast or print media entities as may be



possible; and

13) The twenty-eighth to the thirtieth copies to themajor citizens' arms, including the accredited

citizens' arm, and other non-partisan groups or


section 52(k) of Batas Pambansa Blg. 881. Such


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citizens' arms, groups and organization may use the

five certified copies of election returns for the


national levels.

"Immediately after the eight copy is printed, the poll

clerk shall announce the posting of said copy on a

wall within the premises of the polling place or

counting center, which must be sufficiently lighted

and accessible to the public. Any person may view or

capture an image of the election return by means of

any data capturing device such as, but not limited to

cameras at any time of the day for forty-eight (48)

hours following its posting. After such period, the

chairman of the board of election inspectors shall

detach the election return from the wall and keep

the same in his custody to be produced as may be

requested by any voter for image or data capturing

or for any lawful purpose as may be ordered by

competent authority.

"Within one hour after the printing of the electionreturns, the chairman of the board of election

inspectors 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, electronically

transmit the precinct results to the respective levels

of board of canvassers, to the dominant majority

and minority party, to the accredited citizen's arm,

and to the Kapisanan ng mga Brodcaster ng

Pilipinas (KBP).

"The election results at the city/municipalitycanvassing centers shall be transmitted in the same

manner by the election officer or any official

authorized by the commission to the district or

provincial canvassing centers.

"The election returns transmitted electronically and

digitally signed shall be considered as official

election results and shall be used as the basis for the

canvassing of votes and the proclamation of a

candidate."

"After the electronic results have been transmittedadditional copies not to exceed thirty (30) may be

printed and given to requesting parties at their own

expense."



"SEC. 25. 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, organization or coalitions participatingunder the party-list system by consolidating the

electronically transmitted 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 or more legislative districts shall canvass the

votes for president, vice-president, senators,

members of the House Representatives and elective

city officials by consolidating the certificates of

canvass electronically transmitted or the results

contained in the data storage devices used in the

printing of the election returns. Upon completion of

the canvass, the board shall procedure the canvass

of votes for president, vice-president, and senators

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 votesfor president, vice-president, senators, members of

the House of Representatives and elective municipal

officials by consolidating the electronically

transmitted results or the results contained in the

data storage devices used in the printing of the

election returns. Upon completion of the canvass, it

shall produce the certificate of canvass of votes for

president, vice-president, and senators and


House Representatives and municipal officials.

"Each component municipality in a legislative districtin 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 electronically

transmitted from the counting centers or 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 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 certificates

of canvass electronically transmitted from the

city/municipal consolidating centers or 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 produce a certificate of the canvass votes for

president, vice-president, senators and thereafter,

proclaim the elected members of the House of

Representatives in the legislative district.


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"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 electronically transmitted from the

city/municipal consolidating centers or 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 produce the certificates of canvass votes forpresident, vice-president and senators and


House of Representatives and the provincial official.

"The municipal, city, district and provincial

certificates of canvass of votes shall each be

supported by a statement of votes.

"Within one hour after the canvassing, the Chairman

of the district or provincial Board of Canvassers or

the city board of canvassers of those cities which

comprise one or more legislative districts shallelectronically transmit the certificate of canvass to

the commission sitting as the national board of

canvassers for senators and party-list

representatives and to the Congress as the National

Board of Canvassers for the president and vice

president, directed to the President of the Senate.

"The Commission shall adopt adequate and effective

measures to preserve the integrity of the certificates

of canvass transmitted electronically and the results

in the storage devices at the various levels of the

boards of canvassers.

"The certificates of canvass transmitted

electronically and digitally signed shall be

considered as official election results and shall be

used as the basis for the proclamation of a winning

candidate."



"SEC. 26. Number of Copies of Certificates of Canvass

of Votes and their distribution. - (a) The certificate ofcanvass of votes for president, vice-president,

senators, members of the House of Representatives,

parties, organization or coalitions participating

under the party-list system and elective provincial

officials shall be produced 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, organization or coalitions participatingunder 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 citizen 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.

"(5) The fifth copy to Congress, directed to the

President of Senate;

"(6) The sixth copy to be posted on a wall within the

premises of the canvassing center;

"(7) The seventh and eighth copies shall be given to

the dominant majority and minority parties;

"(8) The ninth to eighteenth copies shall be given to

the ten (10) accredited major national parties,

excluding the dominant majority and minority




the copies on the basis of the criteria provided in

Section 26 of Republic Act no. 7166;

"(9) The nineteenth and twentieth copies shall be

given to the two accredited major local parties in

accordance with a voluntary agreement among

them. If no such agreement is reached, the


the copies on the basis of criteria analogous to that

provided in Section 26 of Republic Act No. 7166;

"(10) The twenty-first to the twenty-fifth copies to

national broadcast or print media entities as may be



possible;

"(11) The twenty-six and twenty-seven copies, to

local broadcast or print media entities as may be



possible; and

"(12) The twenty-eighth to the thirtieth copies, to

the major citizens' arms, including the accredited

citizens' arm, and other non-partisan groups or

organizations enlisted by the commission pursuant

to Section 52(k) of Batas Pambansa Blg. 881. Such

citizens' arms, groups and organization may use the

three certified copies of election returns for the


national levels;


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"The board of canvassers shall furnish all other

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, organization or

coalitions participating under the party-list system

shall be produced 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

canvass 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 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.

"(5) The fifth copy to Congress, directed to the

President of the Senate;

"(6) The six copy to be posted on a wall within the

premises of the canvassing center;

"(7) The seventh and eight copies to the dominant

majority and minority parties;

"(8) The ninth and tenth copies to two accredited

major national parties representing the majority and

minority, excluding the dominant majority and

minority parties, to be determined by the

Commission on the basis of the criteria provided in


"(9) The eleventh to thirteenth copies to broadcast

media entities as may be equitably determined by

the Commission in view of propagating the copies to

the widest extent possible; and

"(10) The fourteenth copy to another citizens' arm

or in the absence thereof, to a non-partisan group or


Section 52(k) of Batas Pambansa Blg. 881. Such

citizens' arm or non-partisan group or organization

may use the copy of election return for the conduct

of citizens' quick counts at the local or national

levels.

"The board of canvassers shall furnish all other

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 thumb marked 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."

"Immediately after the six copy and its supporting

statement of votes are printed, the chairman of the

board of canvassers shall announce the posting of

said prints on a wall within the premises of the

canvassing center, which must be sufficiently lighted

and accessible to the public. Any person may view or

capture an image of the Certificate of Canvass or the

supporting statement of votes by means of any data

capturing device such as, but not limited to, cameras

at any time of the day for forty-eight (48) hours

following the posting. After such period, the

chairman of the board of canvassers shall detach the

election return from the wall and keep the same inhis custody to be produced as may be requested by

any voter for image or data capturing or for any

lawful purpose as may be ordered by competent

authority."



"SEC. 27. National Board of Canvassers for Senators

and Party-List Representatives. - The chairman and

members of the Commission on Election sitting en

banc, shall compose the national board ofcanvassers for senators and party-list

representatives. It shall canvass the results by

consolidating the certificates of canvass

electronically transmitted. Thereafter, the national

board shall proclaim the winning candidates for

senators and party-list representatives."



"SEC. 28. Congress as the National Board of

Canvassers for President and Vice-President. - TheSenate and the House of Representatives in joint

public session shall compose the national board of

canvassers for president and vice-president. The

certificate of canvass for president and vice-


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president duly certified by the board of canvassers

of each province or city, shall be electronically

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 dueexecution thereof in the manner provided by law,

canvass all the results for president and vice-

president and thereafter, proclaim the winning

candidates."

SEC. 24. A new Section 29 is hereby provided to reads as

follows:

"SEC 29. Random Manual Audit. - Where the AES is

used, there shall be a random manual audit in one

precinct per congressional distri

election part viii

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