EN BANC
G.R. No. 222731, March 08, 2016
BAGUMBAYAN-VNP MOVEMENT, INC., AND RICHARD J. GORDON, AS CHAIRMAN OF BAGUMBAYAN-VNP MOVEMENT, INC., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.
R E S O L U T I O N
LEONEN, J.:
A petition for mandamus may be granted and a writ issued when an agency "unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office."1
Petitioners Bagumbayan Volunteers for a New Philippines Movement, Inc. (Bagumbayan-VNP, Inc.) and Former Senator Richard J. Gordon (Gordon) filed this Petition2 for mandamus before this court to compel respondent Commission on Elections to implement the Voter Verified Paper Audit Trail security feature.
Bagumbayan-VNP, Inc. is a non-stock and non-profit corporation.3 It operates through Bagumbayan Volunteers for a New Philippines,4 a national political party duly registered with the Commission on Elections.5
Former Senator Gordon is a registered voter and taxpayer.6 He is an official candidate for the Senate of the Philippines7 and is the Chairperson of Bagumbayan-VNP, Inc. Gordon authored Republic Act No. 9369, the law that amended Republic Act No. 8436, otherwise known as the Automated Election System Law.8
The Commission on Elections is a government entity9 "vested by law to enforce and administer all laws relative to the conduct of elections in the country."10
On December 22, 1997, Republic Act No. 843611 authorized the Commission on Elections to use an automated election system for electoral exercises.12 After almost a decade, Republic Act No. 936913 amended Republic Act No. 8436. Republic Act No. 9369 introduced significant changes to Republic Act No. 8436, Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, and other election-related statutes.14
Automation is hailed as a key "towards clean and credible elections," reducing the long wait and discouraging cheating.15 In 2010 and 2013, the Commission on Elections enforced a nationwide automated election system using the Precinct Count Optical Scan (PCOS) machines. For the 2016 National and Local Elections, the Commission on Elections has opted to use the Vote-Counting Machine.16 The vote-counting machine is a "paper-based automated election system,"17 which is reported to be "seven times faster and more powerful than the PCOS because of its updated processor."18 Likewise, it is reported to have more memory and security features,19 and is "capable of producing the Voter Verification Paper Audit Trail (VVPAT)."20 This VVPAT functionality is in the form of a printed receipt and a touch screen reflecting the votes in the vote-counting machine.21
Petitioners allege that under Republic Act No. 8436, as amended by Republic Act No. 9369, there are several safeguards or Minimum System Capabilities to ensure the sanctity of the ballot. Among these is the implementation of the VVPAT security feature, as found in Section 6(e), (f), and (n).
The full text of Section 6 is as follows:
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SEC. 6. Minimum System Capabilities. - The automated election system must at least have the following functional capabilities:Petitioners claim that VVPAT "consists of physical paper records of voter ballots as voters have cast them on an electronic voting system."22 Through it, the voter can verify if the choices on the paper record match the choices that he or she actually made in the ballot.23 The voter can confirm whether the machine had actually read the ballot correctly. Petitioners seek to compel the Commission on Elections to have the vote-counting machine issue receipts once a person has voted.
(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 integrity which 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 and counting of votes and to consolidate, report and display election result in the shortest time possible;
(h) Accessibility to illiterates and disable 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. (Emphasis supplied).
Petitioners claim that the Commission on Elections refuses to implement the VVPAT function based on fears that the security feature may aid in vote-buying, and that the voting period may take longer.28 On February 9, 2016, petitioners read from ABS-CBN News Online that with a vote of 7-0, the Commission on Elections En Banc decided not to implement the VVPAT for the 2016 Elections.29 Petitioners attached a copy of the article.30 Other news reports state that the Commission on Elections ruled similarly against the voting receipts in 2010 and 2013.31
5. The system's hardware shall have a display panel that is capable to display customizable messages or prompts of each stage of the process execution, including prompts and messages for user interaction purposes. . . . 19. The system shall have a vote verification feature which shall display and print the voter's choices, which can be enabled or disabled in the configuration using the [Election Management System]. (Emphasis supplied)
[T]he poll body has decided against printing the receipt because it might be used for vote buying and that it would result in the vote-counting process being extended from six to seven hours since it takes about 13 seconds to print a receipt, meaning each machine would have to run for that long for the receipts.On February 11, 2016, the Commission on Elections issued Resolution No. 1005735 providing for "rules and general instructions on the process of testing and sealing, [as well as] voting, counting, and transmission of election results."36 Adopting Resolution No. 10057 by a vote of 7-0, the Commission on Elections En Banc made no mention using VVPAT receipts for the 2016 national elections.
Bautista said another "big concern" is that "there might be losing candidates who might question the results, basically instructing their supporters that when the machine prints out the receipt, regardless of what the receipt says, they will say that it's not correct."34ChanRoblesVirtualawlibrary
SEC. 6. Minimum System Capabilities. — The automated election system must at least have the following functional capabilities:Commission on Elections Resolution No. 10057 promulgated on February 11, 2016 did not include mechanisms for VVPAT. Under Part III of the Resolution, it merely stated:
. . . .
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the correctness of reported election results;
. . . .
(n) Provide the voter a system of verification to find out whether or not the machine has registered his choice;
SEC. 40. Manner of voting. -In a press conference last March 4, 2016, Commission on Elections Chairperson Andres Bautista manifested that the Commission on Elections decided "to err on the side of transparency" and resolved to allow voters to have 15-second on-screen verification of the votes they have casted through the vote-counting machine.69 Allowing on-screen verification is estimated to add two (2) hours to the voting period on May 9, 2016. As reported, the meeting of the Commission on Elections En Banc to pass this Resolution was on March 3, 2016, three (3) days after they were required to file a comment before this court.
a. The voter shall:
- Using a ballot secrecy folder and the marking pen provided by the Commission, fill his/her ballot by fully shading the circle beside the names of the candidates and the party, organization or coalition participating in the party-list system of representation, of his/her choice; and
- After accomplishing his/her ballot, approach the VCM, insert his/her ballot in the ballot entry slot;
b. The poll clerk/support staff shall:
- The VCM will display "PROCESSING.../PAKIHINTAY... KASALUKUYANG PINOPROSESO";
- The ballot shall automatically be dropped inside the ballot box. The VCM will then display the message "YOUR VOTE HAS BEEN CAST/ANG IYONG BOTO AY NAISAMANA."
- The VCM will display the message "AMBIGUOUS MARK DETECTED" if the ovals are not properly shaded or an unintentional mark is made. It will display the message "AMBIGUOUS MARKS DETECTED/MAY MALABONG MARKA SA BALOTA." The following options shall be provided "TO CAST BALLOT PRESS/PARA IPASOK ANG BALOTA, PINDUTIN" or "TO RETURN BALLOT, PRESS/PARA IBALIK ANG BALOTA, PINDUTIN." Press the "TO RETURN BALLOT, PRESS/PARA IBALIK ANG BALOTA, PINDUTIN" to return the ballot to the voter. Let the voter review the ballot and ensure that the ovals opposite the names of the candidate voted for are fully shaded.
- In case of illiterate voters, PWD voters who are visually-impaired, and senior citizens (SCs) who may need the use of headphones, the BEI shall insert the headphones so they can follow the instructions of the VCM.
- Monitor, from afar, the VCM screen to ensure that the ballot was successfully accepted;
- Thereafter, whether or not the voter's ballot was successfully accepted, apply indelible ink to the voter's right forefinger nail or any other nail if there be no forefinger nail; and
- Instruct the voter to return the ballot secrecy folder and marking pen, and then leave the polling place.
SECTION 1. Declaration of Policy. — It is the 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 in 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.By setting the minimum system capabilities of our automated election system, the law intends to achieve the purposes set out in this declaration. A mechanism that allows the voter to verify his or her choice of candidates will ensure a free, orderly, honest, peaceful, credible, and informed election. The voter is not left to wonder if the machine correctly appreciated his or her ballot. The voter must know that his or her sovereign will, with respect to the national and local leadership, was properly recorded by the vote-counting machines.
The State recognizes the mandate and authority of the Commission to prescribe the 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.
Endnotes:
1 RULES OF COURT, Rule 67, sec. 3.
2Rollo, pp. 3-27.
3 Id. at 7.
4 Id.
5 COMELEC's List of Registered/Accredited Political Parties <http://www.comelec.gov.ph/?r=Archives/RegularElections/2016NLE/PoliticalParties> (visited March 8, 2016).
6Rollo, p. 7.
7 Filing of Certificates of Candidacy in Connection with the 2016 National and Local Elections (Senator) <http://www.comelec.gov.ph/uploads/Archives/RegularElections/2016NLE/Candidates/COCFiled2016NLE/Senator_Filed_2016NLE.pdf> (visited March 8, 2016).
8Rollo, p. 7.
9 CONST., art. IX-C, sec. 1(1).
10Rollo, p. 7.
11 Rep. Act No. 8436, An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes (1997).
12 Rep. Act No. 8436, sec. 5, as amended.
13 Rep. Act No. 9369, 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 Election Laws, Providing Funds Therefor and for Other Purposes" (2007).
14 Rep. Act No. 7166 (1991); Rep. Act No. 8045 (1995); Rep. Act No. 8436 (1997); Rep. Act No. 8173 (1995).
15Roque, et al. v. COMELEC, et al., 615 Phil. 149, 190 (2009) [Per J. Velasco, Jr., En Banc].
16 Paterno Esmaquel II, Bad labels prompt Comelec to rename voting machines, Rappler, September 17, 2015 <http://www.rappler.com/nation/politics/elections/2016/106232-comelec-rename-vote-counting-machines> (visited March 8, 2016). During a congressional hearing on September 17, 2016, COMELEC Chairperson Andres Bautista supposedly explained the reason for renaming: "Yung PCOS, tinatawag, Hocus-PCOS. Tapos po Hong OMR naman, may narinig po kami, 'O-Mar' daw. Kaya sabi ko, para ano, VCM na lang" ("The PCOS was called Hocus-PCOS. Then on the OMR, we heard something like, 'O-Mar.' So I said, let's just call it VCM.")
17 COMELEC Resolution No. 10057 dated February 11, 2016.
18 Pia Gutierrez, What new poll machines can do which PCOS cannot, ABS-CBN News, December 11, 2015 <http://devnews.abs-cbn.com/focus/12/11/15/what-new-poll-machines-can-do-which-pcos-cannot> (visited March 8, 2016).
19 Id.
20 Id.
21 JC Gotinga, Comelec holds demo of vote counting machines, CNN Philippines <http://cnnphilippines.com/news/2016/01/25/comelec-demo-vote-counting-machines.html> (visited March 8, 2016).
22Rollo, p. 5.
23 Id.
24 Id. at 8-9.cralawred
25 Id. at 5, citing Capalla, et al. v. COMELEC, 687 Phil. 617 (2012) [Per J. Peralta, En Banc].
26 Id.cralawred
27 2016 National and Local Elections Automation Project, Terms of Reference, pp. 4-7 <http://www.comelec.gov.ph/uploads/AboutCOMELEC/BidsandAwards/ProcurementProjects/BAC012014AESOMR/BAC012014AESOMRITB_TermsOfReference.pdf> (visited March 8, 2016)
28Rollo, p. 9.
29 Id.
30 Id. at 38-39.
31 Paterno Esmaquel II, Comelec defends decision vs. voting receipts, Rappler, February 17, 2016 Court asked to order COMELEC to obey law, issue vote receipts, Business Mirror, February 22, 2016 <http://www.businessmirror.com.ph/court-asked-to-order-comelec-to-obey-law-issue-vote-receipts> (visited March 8, 2016).
32 Joint Congressional Oversight Committee on the Automated Election System - Notice of Public Hearing <https://www.senate.gov.ph/16th_congress/ctte_notice/JCOC-AES_Feb3.pdf>.
33 Paterno Esmaquel II, Comelec defends decision vs. voting receipts, Rappler, February 17, 2016 <http://www.rappler.com/nation/politics/elections/2016/122683-comelec-decision-voting-receipts> (visited March 8, 2016).
34 Joel R. San Juan, Court asked to order COMELEC to obey law, issue vote receipts, Business Mirror, February 22, 2016 <http://www.businessmirror.com.ph/court-asked-to-order-comelec-to-obey-law-issue-vote-receipts> (visited March 8, 2016).
35 General Instructions for the Boards of Election Inspectors (BEI) on the Testing and Sealing of Vote Counting Machines (VCMs), and Voting, Counting and Transmission of Election Results in connection with the May 09, 2016 National and Local Elections.
36 COMELEC Resolution No. 10057 dated February 11, 2016.
37Rollo, p. 5.
38 Id. at 40-45, Position Paper of Atty. Glenn Ang Chong.
39 Id. at 9.cralawred
40 Id. at 14.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id. at 15.
46 Id.
47 Id. at 8.
48 Id. at 9.
49 Id. at 5.
50 Id. at 8.
51 Id. at 19-20.
52 Id. at 20.
53 Id. at 7.
54 Id. at 6-7.
55 Id. at 7.
56 Id. at 5. The phrasing in the law states: "The automated election system must have at least the following functional capabilities. . . ."
57 Id. at 12.
58 Id. at 16.
59 Id.
60 Id. at 13.
61 Id. at 79-84, Motion for Additional Time to File Comment.
62 Id. at 79.
63 Id. at 71.
64Yabut v. Ventura, 11 Phil. 493, 495 (1946) [Per J. Tuason, En Banc].
65Daisug v. Court of Appeals, 148-B Phil. 467, 473 (1971) [Per J. Barredo, En Banc]: "No party should assume that his motion for extension will be granted, for, to start with, ... the granting of any extension of time to parties for compliance with any rule or order is not a matter of right but of sound judicial discretion. The Court notes that inspite of its abovecited repeated pronouncements, there are still parties who would regard them lightly. Naturally, such attitude can only be condemned and such parties must suffer the consequences of their indifference."
66 RULES OF COURT, Rule 65, sec. 3.
67Pacheco v. Court of Appeals, 389 Phil. 200, 203 (2000) [Per J. Pardo, First Division].
68 Rep. Act No. 9369, in amending Rep. Act No. 8436, removed Section 4 of the latter law, which is why the numbering of the Sections moved up. Hence, Section 7 in Rep. Act No. 8436, which was amended by Section 7 in Republic Act No. 9369, became the new Section 6 in Rep. Act No. 8436.
69 Tina G. Santos, Comelec OKs on-screen vote confirmation, but not receipt, Philippine Daily Inquirer, March 5, 2016 <http://newsinfo.inquirer.net/770987/comelec-oks-on-screen-vote-confirmation-but-not-receipt> (visited March 8, 2016).
70 Rep. Act No. 8436, as amended by Rep. Act No. 9369, sec. 1 (2007).
71 706 Phil. 214 (2013) [Per J. Carpio, En Banc Decision]; G.R. No. 203302, April 11, 2013 (Resolution), 693 SCRA 272 [Per J. Bersamin, En Banc].
72 Rep. Act No. 8436, as amended by Rep. Act No. 9369, sec. 29 (2007).
73 CONST., art. 5, sec. 2.