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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."
SEC. 3. Section 3 of Republic Act No. 8436 is hereby amended
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
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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.
SEC. 5. Section 5 of Republic Act No. 8436 is hereby amended
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."
SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended
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."
SEC. 7. Section 7 of Republic Act No. 8436 is hereby amended
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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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."
SEC. 11. Section 9 of Republic Act No. 8436 is hereby
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. 12. Section 10 of Republic Act No. 8436 is hereby
amended to read as follows:
"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
amended to read as follows:
"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
amended to read as follows:
"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. 15. Section 14 of Republic Act No. 8436 is hereby
amended to read as follows:
"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. 16. Section 15 of Republic Act No. 8436 is hereby
amended to read as follows:
"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. 17. Section 16 of Republic Act No. 8436 is hereby
amended to read as follows:
"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. 18. Section 17 of Republic Act No. 8436 is hereby
amended to read as follows:
"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. 19. Section 18 of Republic Act No. 8436 is hereby
amended to read as follows:
"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
determined by the Commission in accordance with
law; and
7) The seventh copy shall be deposited inside the
compartment of the ballot box for valid ballots.
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
equitably determined by the Commission in view of
propagating the copies to the widest extent
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
determined by the Commission in accordance with
law;
6) The sixth copy, to the dominant minority party as
determined by the Commission in accordance with
law; and
7) The seventh copy shall be deposited inside the
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
parties, in accordance with a voluntary agreement
among them. If no such agreement is reached, the
Commission shall decide which parties shall receivethe copies on the basis of the criteria provided in
Section 26 of Republic Act No. 7166;
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
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-fifth copies, tonational 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-sixth and twenty-seventh copies, to
local broadcast or print media entities as may be
equitably determined by the Commission in view of
propagating the copies to the widest extent
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
organization enlisted by the Commission pursuant to
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
conduct of citizens' quick counts at the local or
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. 20. Section 21 of Republic Act No. 8436 is hereby
amended to read as follows:
"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
thereafter, proclaim the elected members of the
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
thereafter, proclaim the elected members of the
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. 21. Section 22 of Republic Act No. 8436 is hereby
amended to read as follows:
"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
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;
"(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
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;
"(10) The twenty-first to the twenty-fifth 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;
"(11) The twenty-six and twenty-seven copies, to
local broadcast or print media entities as may be
equitably determined by the Commission in view of
propagating the copies to the widest extent
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
conduct of citizens' quick counts at the local or
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
Section 26 of Republic Act No. 7166;
"(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
organization enlisted by the Commission pursuant to
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. 22. Section 23 of Republic Act No. 8436 is hereby
amended to read as follows:
"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. 23. Section 24 of Republic Act No. 8436 is hereby
amended to read as follows:
"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
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