EN BANC
[ G.R. No. 203302, April 11, 2013 ]MAYOR EMMANUEL L. MALIKSI v. COMELEC +
MAYOR EMMANUEL L. MALIKSI, PETITIONER, VS. COMMISSION ON ELECTIONS AND HOMER T. SAQUILAYAN, RESPONDENTS.
R E S O L U T I O N
MAYOR EMMANUEL L. MALIKSI v. COMELEC +
MAYOR EMMANUEL L. MALIKSI, PETITIONER, VS. COMMISSION ON ELECTIONS AND HOMER T. SAQUILAYAN, RESPONDENTS.
R E S O L U T I O N
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration filed by petitioner Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing his petition for certiorari assailing the resolution dated
September 14, 2012 of the Commission on Elections (COMELEC) En Banc that sustained the declaration of respondent Homer T. Saquilayan as the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second highest number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite alleging that there were irregularities in the counting of votes in 209 clustered precincts. Subsequently, the RTC held a revision of the votes, and, based on the results of the revision, declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist from performing the functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the RTC granted Maliksi's motion for execution pending appeal, and Maliksi was then installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to defray the expenses for the decryption and printing of the ballot images. Later, it issued another order dated April 17, 2012 for Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTC's decision and declaring Saquilayan as the duly elected Mayor.[1]
Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process because he had not been notified of the decryption proceedings. He argued that the resort to the printouts of the ballot images, which were secondary evidence, had been unwarranted because there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksi's motion for reconsideration.[2]
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption, printing, and examination of the ballot images without prior notice to him, and to the use of the printouts of the ballot images in the recount proceedings conducted by the First Division.
In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksi's petition for certiorari. The Court concluded that Maliksi had not been denied due process because: (a) he had received notices of the decryption, printing, and examination of the ballot images by the First Division referring to the orders of the First Division directing Saquilayan to post and augment the cash deposits for the decryption and printing of the ballot images; and (b) he had been able to raise his objections to the decryption in his motion for reconsideration. The Court then pronounced that the First Division did not abuse its discretion in deciding to use the ballot images instead of the paper ballots, explaining that the printouts of the ballot images were not secondary images, but considered original documents with the same evidentiary value as the official ballots under the Rule on Electronic Evidence; and that the First Division's finding that the ballots and the ballot boxes had been tampered had been fully established by the large number of cases of double-shading discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be present at every stage thereof; (b) that he was deprived of such rights when he was not informed of the decryption, printing, and examination of the ballot images by the First Division; (c) that the March 28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch as the orders did not state the date, time, and venue of the decryption and printing of the ballot images; and (d) that he was thus completely deprived of the opportunity to participate in the decryption proceedings.
Maliksi contends that the First Division's motu proprio directive for the decryption, printing, and examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the decryption, printing, and examination should have taken place during the revision before the trial court and after the revision committee had determined that the integrity of the official ballots had not been preserved; (b) that the trial court did not make such determination; (c) that, in fact, Saquilayan did not allege or present any proof in the RTC to show that the ballots or the ballot boxes had been tampered, and had, in fact, actively participated in the revision proceedings; (d) that the First Division should not have entertained the allegation of ballot tampering belatedly raised on appeal; (e) that the First Division should have limited itself to reviewing the evidence on record; and (f) that the First Division did not even explain how it had arrived at the conclusion that the integrity of the ballots had not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been promulgated despite the absence from the deliberations and lack of signature of Justice Jose Portugal Perez.
Ruling
The Court grants Maliksi's Extremely Urgent Motion for Reconsideration, and reverses the decision promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him the right to due process by failing to give due notice on the decryption and printing of the ballot images. Consequently, the Court annuls the recount proceedings conducted by the First Division with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have conducted the assailed recount proceedings because it was then exercising appellate jurisdiction as to which no existing rule of procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city officials.[4]
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld the First Division's unwarranted deviation from the standard procedures by invoking the COMELEC's power to "take such measures as [the Presiding Commissioner] may deem proper," and even citing the Court's minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on Elections[5] to the effect that the "COMELEC has the power to adopt procedures that will ensure the speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so long as the parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections, the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases should still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims. The parties' right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc should not have upheld the First Division's deviation from the regular procedure in the guise of speedily resolving the election protest, in view of its failure to provide the parties with notice of its proceedings and an opportunity to be heard, the most basic requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of the original official ballots themselves.[6] In Vinzons-Chato v. House of Representatives Electoral Tribunal,[7] the Court held that "the picture images of the ballots, as scanned and recorded by the PCOS, are likewise 'official ballots' that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest."
That the two documents the official ballot and its picture image are considered "original documents" simply means that both of them are given equal probative weight. In short, when either is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the official ballots to be the primary or best evidence of the voters' will. In that regard, the picture images of the ballots are to be used only when it is first shown that the official ballots are lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10, 2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the printing of the image of the ballots should be made, to wit:
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction over election protests, provides:
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Also, the House of Representative Electoral Tribunal's Guidelines on the Revision of Ballots requires a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, to wit:
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the ballots may be resorted to only after the proper Revision/Recount Committee has first determined that the integrity of the ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in the CF cards and the printing of the decrypted images take place during the revision or recount proceedings. There is a good reason for thus fixing where and by whom the decryption and the printing should be conducted. It is during the revision or recount conducted by the Revision/Recount Committee when the parties are allowed to be represented, with their representatives witnessing the proceedings and timely raising their objections in the course of the proceedings. Moreover, whenever the Revision/Recount Committee makes any determination that the ballots have been tampered and have become unreliable, the parties are immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising original jurisdiction over the protest that made the finding that the ballots had been tampered, but the First Division in the exercise of its appellate jurisdiction, the parties should have been given a formal notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did not even issue any written resolution stating its reasons for ordering the printing of the picture images. The parties were formally notified that the First Division had found that the ballots had been tampered only when they received the resolution of August 15, 2012, whereby the First Division nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the resolution of the First Division to that effect was unusually mute about the factual bases for the finding of ballot box tampering, and did not also particularize how and why the First Division was concluding that the integrity of the ballots had been compromised. All that the First Division declared as justification was a simple generalization of the same being apparent from the allegations of ballot and ballot box tampering and upon inspection of the ballot boxes, viz:
It was the COMELEC En Banc's assailed resolution of September 14, 2012 that later on provided the explanation to justify the First Division's resort to the picture images of the ballots, by observing that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and the votes for Saquilayan had led to the belief that the ballots had been tampered. However, that explanation by the COMELEC En Banc did not cure the First Division's lapse and did not erase the irregularity that had already invalidated the First Division's proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELEC's finding of ballot tampering was a mere surplusage because there was actually no need for such finding before the ballots' digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC Resolution No. 8804, as amended by Resolution No. 9164, which states:
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot boxes before the COMELEC Division may grant the motion. He states that a determination by the parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which in turn pertinently states that:
The application of Section 3 to this case is inappropriate, considering that the First Division did not in any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayan's motion to print the ballot images. Instead, the First Division made therein a finding of tampering, thus:
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First Division merely resolved Saquilayan's motion for the printing of the ballot images; instead, it reinforced the First Division's finding that there was tampering of the ballots. The non-mention of Saquilayan's motion was a clear indication of the COMELEC's intention to act motu proprio; and also revealed its interpretation of its very own rules, that there must be justifiable reason, i.e. tampering, before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Division's denial of Maliksi's right to due process. For, if the First Division was really only acting on a motion to allow the printing of the ballot images, there was a greater reason for the First Division to have given the parties notice of its ruling thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of the ballot images should such party deem it necessary, and the COMELEC may grant such motion, is contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they may file a motion." The provision really envisions a situation in which both parties have agreed that the ballot images should be printed. Should only one of the parties move for the printing of the ballot images, it is not Section 3 that applies but Section 6(e), which then requires a finding that the integrity of the ballots has been compromised.
The disregard of Maliksi's right to be informed of the decision to print the picture images of the ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while Maliksi's claim of due process violation is directed only against the First Division's recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the chance to seek any reconsideration or even to assail the irregularly-held recount through a seasonable petition for certiorari in this Court. In that context, he had no real opportunity to assail the conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for the printing of the picture images did not sufficiently give Maliksi notice of the First Division's decision to print the picture images. The said orders did not meet the requirements of due process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to surmise on the factual bases for finding the need to print the picture images still violated the principles of fair play, because the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and recount proceedings to the parties, but also demands an opportunity to be present at such proceedings or to be represented therein. Maliksi correctly contends that the orders of the First Division simply required Saquilayan to post and augment his cash deposit. The orders did not state the time, date, and venue of the decryption and recount proceedings. Clearly, the First Division had no intention of giving the parties the opportunity to witness its proceedings.
Mendoza v. Commission on Elections[9] instructs that notice to the parties and their participation are required during the adversarial aspects of the proceedings. In that case, after the revision of the ballots and after the election protest case was submitted for decision, the ballots and ballot boxes were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in the SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile conducted proceedings within the SET's premises. Mendoza then claimed that his right to due process was violated because he had not been given notice by the COMELEC that it would be conducting further proceedings within the SET premises. The Court did not sustain his claim, however, and pointed out:
Here, the First Division denominated the proceedings it had conducted as an "appreciation of ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division were adversarial, in that the proceedings included the decryption and printing of the picture images of the ballots and the recount of the votes were to be based on the printouts of the picture images. The First Division did not simply review the findings of the RTC and the Revision Committee, but actually conducted its own recount proceedings using the printouts of the picture image of the ballots. As such, the First Division was bound to notify the parties to enable them to participate in the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC Resolution No. 9164, requires the parties' presence during the printing of the images of the ballots, thus:
We should not ignore that the parties' participation during the revision and recount proceedings would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only by their participation would the COMELEC's proceedings attain credibility as to the result. The parties' presence would have ensured that the requisite procedures have been followed, including the required authentication and certification that the images to be printed are genuine. In this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and printing of the picture images of the ballots and the recount proceedings. The COMELEC was merely content with listing the guidelines that the First Division had followed in the appreciation of the ballots and the results of the recount. In short, there was vagueness as to what rule had been followed in the decryption and printing proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest because the term of the position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the COMELEC's decision to use the digital images of the ballots and sustain its decision thereon. Although a remand of the election protest to the RTC would have been the appropriate procedure, we direct the COMELEC En Banc instead to conduct the decryption and printing of the digital images of the ballots and to hold recount proceedings, with due notice to all the parties and opportunity for them to be present and to participate during such proceedings. Nothing less serves the ideal objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance with this disposition, the COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010 Elections. That is not the concern of the Court as yet. The Court simply does not want to countenance a denial of the fundamental right to due process, a cornerstone of our legal system.[11] After all, it is the Court's primary duty to protect the basic rights of the people vis-à-vis government actions, thus:
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and DIRECTS the Commission on Elections En Banc to conduct proceedings for the decryption of the picture images of the ballots involved in the protest after due authentication, and for the recount of ballots by using the printouts of the ballot images, with notice to and in the presence of the parties or their representatives in accordance with the procedure laid down by Rule 15 of COMELEC Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.
Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Villarama, Jr., Mendoza, and Reyes, JJ., concur.
Sereno, C.J., Del Castillo, Abad, Perlas-Bernabe, and Leonen, JJ., joins the dissent of J. Carpio.
Carpio, J., see dissenting opinion.
Perez, J., concur in a separate opinion.
[1] Rollo, p. 125.
[2] Id. at 63
[3] Id. at 575-577.
[4] COMELEC Resolution No. 8804, Rule 6, Section 1.
[5] G.R. No. 199050, August 28, 2012.
[6] 2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3(r) defines "electronic document" as follows:
[8] Rollo, p. 102.
[9] G. R. No. 188308, October 15, 2009, 603 SCRA 692.
[10] Id. at 716-717.
[11] Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635, 653.
[12] Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 177.
CONCURRING OPINION
PEREZ, J.:
The issue as basic as due process of law and the opinion of as many as seven of us who saw that petitioner was deprived of the fundamental right highlights my duty to join the discussion. With the present motion for reconsideration providing the opportunity to look into the reasons that divided the Court, I do so.
1. The electoral contest is all about over-voting. Simply, it means that in the contested ballots both the slots separately for petitioner Maliksi and respondent Saquilayan who vied for the position of Mayor of Imus, Cavite, were shaded. The guideline in the appreciation of ballots with over-voting is embodied in Guideline No. 5 used by the COMELEC. Thus:
There is a correlated guideline, Guideline No. 2, in the sense that both guidelines refer to instances of shading. However, as regards the covered matter and the consequence, the two rules are hugely different. Guideline No. 2 is about an entire ballot that is claimed to have been shaded by two or more persons, and it states:
Clearly, in case of a ballot claimed to have been shaded by two or more persons, there is an inquiry to determine whether or not the ballot was shaded by person/s, other than the voter. The Guideline implies a presumption in favor of shading by the voter whose ballot should be rejected only if there is "any circumstance" showing shading by somebody else.
On the contrary, in case of over-voting which is the case at hand, Guideline No. 5 outrightly provides the consequence that the vote shall be considered stray and will not be credited to any of the contending parties.
The reason behind the significant variance in the consequences of the two kinds of shading can be debated endlessly. The obviousness of the difference outlined by the COMELEC, which is the sole judge of an election contest, forecloses such a debate. What the obviousness brings about, as it is my intention, is the grave abuse of discretion on the part of the COMELEC.
The COMELEC disobeyed its own rule that over-voting results in a stray vote. Relying on "allegations of ballot and ballot box tampering," which allegations are without proof from the proponent, the COMELEC nonetheless favors the allegations through its own inspection of the ballot boxes to support its conclusion that "it is apparent that the integrity of the ballots had been compromised." That was done on the first review of the appealed decision. On second review, the COMELEC resorted to the observation of "unprecedented number of double-votes" which left it "with no other option but to dispense with the physical ballots and resort to their digital image."
The grave abuse of discretion of the COMELEC is clear from its own words describing what it did in this case.
It can be implied from its own decision on first review that the COMELEC agrees that before the physical ballots can be disregarded and the digital image favored, the tampering of the ballot box must be prim·ly proven. It had to allude to ballot box tampering because without the defect, the integrity of the ballots is unassailable. No proof of tampering came from the contestants in this case. The COMELEC relied on its observations. And it did not even detail the circumstances of the inspection it made and the facts that make tampering "apparent."
Indeed, the over-voting itself cannot be the proof of ballot tampering. Even if we go by the Guideline on the claim of ballot shading by two or more persons, the presumption is that the ballot was shaded only by the voter, and this presumption prevails absent any circumstance showing that the ballot was shaded by persons other than the voter. Plainly, in the instant case, there is no circumstance independent of the fact of shading that such shading was done by someone other than the voter. Its odd reliance on the over-voting itself underscores the applicability of the presumption that, m this case, the voter himself/herself did the shadings.
The fact is that petitioner has in his Election Protest, come forward with an explanation about over-voting. Thus:
This proposition was evidently found tenable by the trial court which, upon the opening of the ballot boxes and ballots, applied the guideline that the over-votes are stray votes. That proposition based on facts reached the COMELEC via appeal. It should have at least merited a discussion.
2. I concur with the ponencia of Justice Bersamin. I discussed the lack of factual and legal premise for the decryption done by the COMELEC to punctuate its grave abuse of discretion that even went further and similarly characterized the process of decryption itself.
I thus join Justice Bersamin in the remand of this case to the COMELEC for immediate cleansing of the process, which after all, kindred to the purpose of Justice Bersamin, is the object of my participation in the resolution of this contest, not the pleasure of anyone of the contestants.
DISSENTING OPINION
CARPIO, J.:
For the Court's consideration is the Extremely Urgent Motion for Reconsideration filed by Emmanuel L. Maliksi (Maliksi) assailing this Court's 12 March 2013 Decision which affirmed the 14 September 2012 Resolution of the Commission on Elections (COMELEC) En Bane and declared Homer T. Saquilayan (Saquilayan) as the duly-elected Municipal Mayor of Imus, Cavite.
In his motion for reconsideration, Maliksi cited extensively fi·om the Dissenting Opinion[1] and asserted that he was denied due process when the COMELEC First Division decrypted, printed, and examined the ballot images without notice to him. Maliksi further alleged that this Court's 12 March 2013 Decision is null and void for having been promulgated in the absence of Associate Justice Jose Portugal Perez (Justice Perez).
First, I will discuss the issue of the absence of Justice Perez when the Court's 12 March 2013 Decision was promulgated.
Section 4, Rule 12 ofthe Internal Rules of the Supreme Court allows a member of this Court to leave his or her vme in writing. The Rule states:
As such, there was nothing irregular when Justice Perez lefl his vote in writing with the Chief Justice because he took part in the previous deliberation of the case.
Maliksi again assails the decryption and printing of the ballot images for the first time on appeal.
I reiterate that Saquilayan first requested for the printing of the ballot images before the trial court when he filed a Motion To Print Picture Images Of The Ballot Boxes Stored In The Memory Cards Of The Clustered Precincts[2] dated 21 March 2011. In that Motion, Saquilayan made the allegation of tampering citing that during the preliminary revision proceedings, he noticed an unusually large number of double-voted ballots only for the position of Mayor and that the recorded counts of all the revision committees show significant discrepancies between the ballot counts and the results reflected in the election returns.[3] It was only on 3 May 2011 that the trial court in an Omnibus Order granted Saquilayan's motion for the printing of the ballot images in the CF cards.[4] On 16 May 2011, the COMELEC Election Records and Statistics Department (ERSD) informed Saquilayan that the CF cards were still in the custody of the trial court. In a Manifestation and Request[5] dated 20 May 2011, Saquilayan asked the trial court to forward the CF cards of the protested precincts to the ERSD to enable the COMELEC to decrypt and print the ballot images. The decryption of the ballot images was set on 21 June 2011.
Maliksi then filed a Motion for Honorable Court to Request ERSD to Specify Procedure to Decrypt Compact Flash (CF) Cards. The trial court, in an Order[6] dated 17 June 20 11, requested the ERSD to specify the procedure that it would undertake during the proceedings and set the case for conference on 27 June 2011. In a letter[7] dated 20 June 2011, Maliksi wrote the ERSD requesting that further proceedings be deferred and held in abeyance in deference to the 17 June 2011 Order of the trial court. On 27 June 20 II, on the date the case was set for conference, Maliksi filed a Motion to Consider That Period Has Lapsed to Print Ballot's Picture Images[8] on the ground that Saquilayan only had 30 days from receipt of the Omnibus Order dated 3 May 2011 to accomplish the printing of the ballot images. Maliksi alleged that the 30-day period started on 10 May 2011 when Saquilayan received the 3 May 2011 Omnibus Order and ended on 22 June 2011. Thus, Saquilayan was already barred from having access to the electronic data in the COMELEC's back-up server and to print the ballot images in the CF cards. The trial court granted Maliksi's motion in its Order dated 3 August 2011[9] despite the fact that the delay in the decryption could not be attributed to Saquilayan's fault alone but also due to the failure of the trial court to turn over the CF cards to the ERSD and to Maliksi's motion for the ERSD to specify the procedure in decrypting the CF cards. Clearly, the issue of tampering, as well as the request for the decryption of the ballot images, was not raised for the first time on appeal.
Maliksi also echoed the Dissenting Opinion that the printing of the ballot images may only be resorted to after the proper Revision/Recount Committee had first determined that the integrity of the ballots and the ballot boxes was not preserved. Citing Section 6, Rule 15 of COMELEC Resolution No. 8804,[10] as amended by Resolution No. 9164,[11] Maliksi alleged that the decryption of the images stored in the CF cards and the printing of the decrypted images must take place during the revision or recount proceedings and that it should be the Revision/Recount Committee that determines whether the ballots are unreliable.
Section 6, Rule 15 should be read together with Rule 16 of Resolution No. 8804, as amended by Resolution No. 9164, particularly Section 3, which provides:
Section 3, Rule 16 does not require any allegation of tampering before the printing of ballot images may be requested by the parties. It does not require prior determination by the Revision/Recount Committee that the integrity of the ballots and the ballot boxes was not preserved. Under Section 3, Rule 16, the request may be made when the parties deem the printing of the ballot images necessary.
To repeat, the parties can request for the printing of the ballot images "in case the parties deem it necessary." This is a ground separate from that in Section 6(e), which refers to a determination ofthe integrity ofthe ballots by the Revision/Recount Committee. Section 3, Rule 16 provides that "[i]n case the parties deem it necessary, they may file a motion to be approved by the Division of the Commission requesting for the printing of ballot images in addition to those mentioned in the second paragraph of item (e)." The second paragraph of item (e) speaks of signs of tampering, or if the ballot box appears to have been compromised, thus:
Section 3, Rule 16 allows an additional ground for the printing of the ballot images: the determination by the parties that the printing is necessary. Clearly, even without signs of tampering or that the integrity of the ballots and the ballot boxes had been compromised, the parties may move for the printing of the ballot images. In this case, the COMELEC En Bane made it clear in its Comment[12] that the COMELEC First Division ordered the decryption, printing and examination of the digital images because the COMELEC First Division "discovered upon inspection that the integrity of the ballots themselves was compromised and that the ballot boxes were tampered."[13] However, applying Section 3 of Rule 16, the finding of tampering was not even necessary for the COMELEC First Division to allow the printing of the ballot images.
Saquilayan moved for the printing of the ballot images as early as 21 March 2011 before the trial court. Saquilayan reiterated his motion to have the ballot images printed when he filed his appeal brief[14] before the COMELEC First Division. Saquilayan pointed out that he filed reiterations ol his motion to print with copies furnished to Maliksi until the COMELEC First Division ordered the printing.[15] There is nothing in the records which showed that Maliksi opposed Saquilayan's motion.
Section 3, Rule 9 of Resolution No. 8808 provides:
When Maliksi did not oppose Saquilayan's motion for the printing of the ballot images, he is deemed to have waived his right to oppose the motion. The motion was deemed submitted for resolution. The COMELEC En Banc categorically stated that Maliksi "never questioned the Order of decryption of the First Division nor did he raise any objection in any of the pleadings he filed with this Commission - a fact which already places him under estoppel."[16] Maliksi could not claim that he was denied due process because he was not aware of the decryption proceedings. The Order[17] dated 28 March 2012 where the COMELEC First Division directed Saquilayan to deposit the required amount for expenses tor the supplies, honoraria, and fee for the decryption of the CF cards was personally delivered to Maliksi's counsel. The Order[18] dated 17 April 2012 where the COMELEC First Division required Saquilayan to deposit an additional amount for expenses for the printing of additional ballot images from four clustered precincts was again personally delivered to Maliksi's counsel. Maliksi feigned ignorance of the decryption proceedings until he received the COMELEC First Division's Resolution of 15 August 2012.
As regards Maliksi's claim that he was deprived of his right to be present during the authentication process and the actual printing of the ballot images, Section 3 of Resolution No. 8804, as amended by Resolution No. 9164, does not require the pa1ties or the.ir representatives to be present during the printing of the ballot images. Maliksi should have moved to be present at, or to observe, the decryption proceedings when he received the 28 March 2012 Order directing the decryption. Maliksi did not, and thus he waived whatever right he had to be present at, or to observe, the decryption proceedings.
I emphasize that there is no denial of due process where there is opportunity to be heard, either through oral arguments or pleadings.[19] Further, the fact that a party was heard on his motion for reconsideration negates any violation of the right to due process.[20] Maliksi's motion for reconsideration was directed against the entire resolution of the First Division, including the recount proceedings which he claimed to have violated his right to due process.
Maliksi alleged that the COMELEC First Division should have limited itself to reviewing the evidence on record, meaning the physical ballots, instead of using the decrypted images. Maliksi thus wanted the COMELEC First Division to ignore its finding of tampering. On this issue, the COMELEC En Bane stressed:
In his Reflections submitted to this Court, Justice Perez stated that the present electoral contest is all about over-voting. Justice Perez cited Guideline No. 5 used by the COMELEC which states:
Justice Perez added that "in case of over-voting which is the case at hand, Guideline No. 5 outrightly provides- the consequence that the vote shall be considered stray and will not be credited to any of the contending parties." Justice Perez stated that the COMELEC disobeyed its own rule that over-voting results in a stray vote.
This case is not a case of over-voting under Guideline No. 5. In over voting under Guideline No. 5, one person, that is, the voter himself, votes for two or more persons for one elective position. When the ballot is fed to the PCOS machine, the machine reads that two or more candidates for the same position had been shaded. The digital image will record two spaces shaded for one position. On the other hand, in double-shading, the voter shades the space for one candidate but another person, after the ballot is fed to the PCOS machine, surreptitiously shades another space for another candidate for the same position. In double-shading, the digital image shows only one shaded space for a candidate while the ballot shows two shaded spaces. In the present case, there was actually a double-shading (although it was inaccurately referred to as over-voting in the COMELEC First Division's Decision) which was done by person or persons other than the voter. When the ballot was fed to the PCOS machine, the machine read only one vote for one candidate for one position. After the double-shading, there were already two votes for two candidates for the same position, but the digital image still contains only one shaded space.
Here, the double-shading happened after the ballots were fed to and read by the PCOS machines because the digital images show only one shaded space while the ballots show two shaded spaces. Double-shading is a post-election operation. The double-shading covered 8,387 ballots, "exclusively affecting the position of Mayor and specifically affecting the ballots of Saquilayan"[22] and the 8,387 affected ballots surprisingly all came from 53 clustered precincts "specifically pinpointed by Maliksi as his pilot precincts."[23]
The situation here is the one covered by Guideline No. 2 cited by Justice Perez which states that "[t]he best way to identify if a ballot has been tampered is to go to the digital image of the ballot as the PCOS was able to capture such when the ballot was fed by the voter into the machine when he cast his vote." This is what the COMELEC First Division did and the COMELEC First Division discovered that there was no double-shading in the digital images of the ballots. Obviously, the double-shading was done by persons other than the voters.
Again, Saquilayan raised the issue of tampering of the ballots as early as 21 March 2011 before the trial court. The COMELEC First Division took into consideration the allegation of tampering. Even without the allegation of tampering, Section 3, Rule 16 of Resolution No. 8804, as amended by Resolution No. 9164, allows the parties to request for the printing of the ballot images if the parties deem it necessary. It is undisputed that Saquilayan requested the COMELEC for the printing of the ballot images and Maliksi did not file any opposition to Saquilayan's motions. Upon inspection of the ballots and ballot boxes, the COMELEC First Division found that the integrity of the ballots had been compromised. When the digital images of the ballots were examined, the COMELEC First Division found that there was no doubie-shading. As such, the ballots should not be considered stray under Guideline No. 5.
ACCORDINGLY, I vote to DENY with FINALITY the Extremely Urgent Motion for Reconsideration filed by Emmanuel L. Maliksi.
[1] Penned by Associate Justice Lucas P. Bersamin.
[2] Rollo, pp. 283-285.
[3] Id. at 283.
[4] Id. at 293-295.
[5] Id. at 298-300.
[6] Id.at302-303.
[7] Id. at 304.
[8] Id. at 307-309.
[9] Id. at 359. Omnibus Order dated 1 September 2011.
[10] In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10, 2010 Elections.
[11] In the Matter of Reinstating and Reimplementing Come lee Resolution No. 8804 with Amendments.
[12] Rollo, pp. 484-516.
[13] Id. at 500.
[14] Id. at 237, Saquilayan's Comment, p. 25.
[15] Id.
[16] Id. at 61.
[17] Id. at 362.
[18] Id. at 366.
[19] Atty. Octava v. Commission on Elections, 547 Phil 647 (2007).
[20] See German Management & Services, Inc. v. Court of Appeals, 258 Phil. 289 (1989).
[21] Rollo, p. 60.
[22] Id.
[23] Id.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second highest number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite alleging that there were irregularities in the counting of votes in 209 clustered precincts. Subsequently, the RTC held a revision of the votes, and, based on the results of the revision, declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist from performing the functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the RTC granted Maliksi's motion for execution pending appeal, and Maliksi was then installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to defray the expenses for the decryption and printing of the ballot images. Later, it issued another order dated April 17, 2012 for Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTC's decision and declaring Saquilayan as the duly elected Mayor.[1]
Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process because he had not been notified of the decryption proceedings. He argued that the resort to the printouts of the ballot images, which were secondary evidence, had been unwarranted because there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksi's motion for reconsideration.[2]
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption, printing, and examination of the ballot images without prior notice to him, and to the use of the printouts of the ballot images in the recount proceedings conducted by the First Division.
In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksi's petition for certiorari. The Court concluded that Maliksi had not been denied due process because: (a) he had received notices of the decryption, printing, and examination of the ballot images by the First Division referring to the orders of the First Division directing Saquilayan to post and augment the cash deposits for the decryption and printing of the ballot images; and (b) he had been able to raise his objections to the decryption in his motion for reconsideration. The Court then pronounced that the First Division did not abuse its discretion in deciding to use the ballot images instead of the paper ballots, explaining that the printouts of the ballot images were not secondary images, but considered original documents with the same evidentiary value as the official ballots under the Rule on Electronic Evidence; and that the First Division's finding that the ballots and the ballot boxes had been tampered had been fully established by the large number of cases of double-shading discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION, PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE BASIS FOR THE ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE COMELEC FIRST DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE OF THE COMELEC FIRST DIVISION SANS ANY NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME ON APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN UPHOLDING THE COMELEC FIRST DIVISION'S RULING TO DISPENSE WITH THE PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE FACT THAT THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE VOTERS' WILL, AND THAT BALLOT IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE, AND IN FACT THE INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS WAS PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY THE PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE SUPREME COURT EN BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT, FOR HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT JUSTICE JOSE PORTUGAL PEREZ AT THE TIME OF THE DELIBERATION AND VOTING ON THE 12 MARCH 2013 RESOLUTION IN THE INSTANT CASE.[3]
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be present at every stage thereof; (b) that he was deprived of such rights when he was not informed of the decryption, printing, and examination of the ballot images by the First Division; (c) that the March 28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch as the orders did not state the date, time, and venue of the decryption and printing of the ballot images; and (d) that he was thus completely deprived of the opportunity to participate in the decryption proceedings.
Maliksi contends that the First Division's motu proprio directive for the decryption, printing, and examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the decryption, printing, and examination should have taken place during the revision before the trial court and after the revision committee had determined that the integrity of the official ballots had not been preserved; (b) that the trial court did not make such determination; (c) that, in fact, Saquilayan did not allege or present any proof in the RTC to show that the ballots or the ballot boxes had been tampered, and had, in fact, actively participated in the revision proceedings; (d) that the First Division should not have entertained the allegation of ballot tampering belatedly raised on appeal; (e) that the First Division should have limited itself to reviewing the evidence on record; and (f) that the First Division did not even explain how it had arrived at the conclusion that the integrity of the ballots had not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been promulgated despite the absence from the deliberations and lack of signature of Justice Jose Portugal Perez.
The Court grants Maliksi's Extremely Urgent Motion for Reconsideration, and reverses the decision promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him the right to due process by failing to give due notice on the decryption and printing of the ballot images. Consequently, the Court annuls the recount proceedings conducted by the First Division with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have conducted the assailed recount proceedings because it was then exercising appellate jurisdiction as to which no existing rule of procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city officials.[4]
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld the First Division's unwarranted deviation from the standard procedures by invoking the COMELEC's power to "take such measures as [the Presiding Commissioner] may deem proper," and even citing the Court's minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on Elections[5] to the effect that the "COMELEC has the power to adopt procedures that will ensure the speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so long as the parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections, the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases should still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims. The parties' right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc should not have upheld the First Division's deviation from the regular procedure in the guise of speedily resolving the election protest, in view of its failure to provide the parties with notice of its proceedings and an opportunity to be heard, the most basic requirements of due process.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of the original official ballots themselves.[6] In Vinzons-Chato v. House of Representatives Electoral Tribunal,[7] the Court held that "the picture images of the ballots, as scanned and recorded by the PCOS, are likewise 'official ballots' that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest."
That the two documents the official ballot and its picture image are considered "original documents" simply means that both of them are given equal probative weight. In short, when either is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the official ballots to be the primary or best evidence of the voters' will. In that regard, the picture images of the ballots are to be used only when it is first shown that the official ballots are lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10, 2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the printing of the image of the ballots should be made, to wit:
x x x x
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the ballots has been preserved or that no signs of tampering of the ballots are present, will the recount proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet or are otherwise in such a condition that it could not be recounted, the Recount Committee shall follow paragraph (l) of this rule.
x x x x
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes. (Emphases supplied.)
x x x x
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction over election protests, provides:
x x x x
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount. (Emphases supplied.)
x x x x
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. The revision of votes shall be done through the use of appropriate PCOS machines or manually and visually, as the Tribunal may determine, and according to the following procedures:
x x x x
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or images stored are genuine and not merely substitutes. It is only upon such determination that the printed picture image can be used for the revision of votes. (Emphases supplied.)
x x x x
Also, the House of Representative Electoral Tribunal's Guidelines on the Revision of Ballots requires a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, to wit:
Section 10. Revision of Ballots
x x x x
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture images of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the revision. (As amended per Resolution of February 10, 2011; Emphases supplied.)
x x x x
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the ballots may be resorted to only after the proper Revision/Recount Committee has first determined that the integrity of the ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in the CF cards and the printing of the decrypted images take place during the revision or recount proceedings. There is a good reason for thus fixing where and by whom the decryption and the printing should be conducted. It is during the revision or recount conducted by the Revision/Recount Committee when the parties are allowed to be represented, with their representatives witnessing the proceedings and timely raising their objections in the course of the proceedings. Moreover, whenever the Revision/Recount Committee makes any determination that the ballots have been tampered and have become unreliable, the parties are immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising original jurisdiction over the protest that made the finding that the ballots had been tampered, but the First Division in the exercise of its appellate jurisdiction, the parties should have been given a formal notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did not even issue any written resolution stating its reasons for ordering the printing of the picture images. The parties were formally notified that the First Division had found that the ballots had been tampered only when they received the resolution of August 15, 2012, whereby the First Division nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the resolution of the First Division to that effect was unusually mute about the factual bases for the finding of ballot box tampering, and did not also particularize how and why the First Division was concluding that the integrity of the ballots had been compromised. All that the First Division declared as justification was a simple generalization of the same being apparent from the allegations of ballot and ballot box tampering and upon inspection of the ballot boxes, viz:
x x x x
The Commission (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over the digital image of the appealed ballots.[8] (Emphasis supplied)
x x x x
It was the COMELEC En Banc's assailed resolution of September 14, 2012 that later on provided the explanation to justify the First Division's resort to the picture images of the ballots, by observing that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and the votes for Saquilayan had led to the belief that the ballots had been tampered. However, that explanation by the COMELEC En Banc did not cure the First Division's lapse and did not erase the irregularity that had already invalidated the First Division's proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELEC's finding of ballot tampering was a mere surplusage because there was actually no need for such finding before the ballots' digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC Resolution No. 8804, as amended by Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion to be approved by the Division of the Commission requesting for the printing of ballot images in addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the necessary materials in the printing of images such as but not limited to copying papers, toners and printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy of the ballot images contained in a secured/hashed disc on the condition that the ballot images be first printed, at the expense of the requesting party, and that the printed copies be signed by the parties' respective revisors or representatives and by an ERSD IT-capable representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot boxes before the COMELEC Division may grant the motion. He states that a determination by the parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which in turn pertinently states that:
Section 6. Conduct of the Recount
x x x x
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as that of the locks or locking mechanism and record the condition in the recount report. From its observation, the Recount Committee must also make a determination as to whether the integrity of the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been compromised, the Recount Committee shall still proceed to open the ballot box and make a physical inventory of the contents thereof. The committee shall, however, record its general observation of the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First Division did not in any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayan's motion to print the ballot images. Instead, the First Division made therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First Division merely resolved Saquilayan's motion for the printing of the ballot images; instead, it reinforced the First Division's finding that there was tampering of the ballots. The non-mention of Saquilayan's motion was a clear indication of the COMELEC's intention to act motu proprio; and also revealed its interpretation of its very own rules, that there must be justifiable reason, i.e. tampering, before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Division's denial of Maliksi's right to due process. For, if the First Division was really only acting on a motion to allow the printing of the ballot images, there was a greater reason for the First Division to have given the parties notice of its ruling thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of the ballot images should such party deem it necessary, and the COMELEC may grant such motion, is contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they may file a motion." The provision really envisions a situation in which both parties have agreed that the ballot images should be printed. Should only one of the parties move for the printing of the ballot images, it is not Section 3 that applies but Section 6(e), which then requires a finding that the integrity of the ballots has been compromised.
The disregard of Maliksi's right to be informed of the decision to print the picture images of the ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while Maliksi's claim of due process violation is directed only against the First Division's recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the chance to seek any reconsideration or even to assail the irregularly-held recount through a seasonable petition for certiorari in this Court. In that context, he had no real opportunity to assail the conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for the printing of the picture images did not sufficiently give Maliksi notice of the First Division's decision to print the picture images. The said orders did not meet the requirements of due process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to surmise on the factual bases for finding the need to print the picture images still violated the principles of fair play, because the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and recount proceedings to the parties, but also demands an opportunity to be present at such proceedings or to be represented therein. Maliksi correctly contends that the orders of the First Division simply required Saquilayan to post and augment his cash deposit. The orders did not state the time, date, and venue of the decryption and recount proceedings. Clearly, the First Division had no intention of giving the parties the opportunity to witness its proceedings.
Mendoza v. Commission on Elections[9] instructs that notice to the parties and their participation are required during the adversarial aspects of the proceedings. In that case, after the revision of the ballots and after the election protest case was submitted for decision, the ballots and ballot boxes were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in the SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile conducted proceedings within the SET's premises. Mendoza then claimed that his right to due process was violated because he had not been given notice by the COMELEC that it would be conducting further proceedings within the SET premises. The Court did not sustain his claim, however, and pointed out:
After consideration of the respondents' Comments and the petitioner's petition and Reply, we hold that the contested proceedings at the SET ("contested proceedings["]) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioner's Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged. We find it significant that the private respondent's Comment fully supported the COMELEC's position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest.
To conclude, the rights to notice and to be heard are not material considerations in the COMELEC's handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.[10] (Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an "appreciation of ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division were adversarial, in that the proceedings included the decryption and printing of the picture images of the ballots and the recount of the votes were to be based on the printouts of the picture images. The First Division did not simply review the findings of the RTC and the Revision Committee, but actually conducted its own recount proceedings using the printouts of the picture image of the ballots. As such, the First Division was bound to notify the parties to enable them to participate in the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC Resolution No. 9164, requires the parties' presence during the printing of the images of the ballots, thus:
x x x x
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes.
x x x x
We should not ignore that the parties' participation during the revision and recount proceedings would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only by their participation would the COMELEC's proceedings attain credibility as to the result. The parties' presence would have ensured that the requisite procedures have been followed, including the required authentication and certification that the images to be printed are genuine. In this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and printing of the picture images of the ballots and the recount proceedings. The COMELEC was merely content with listing the guidelines that the First Division had followed in the appreciation of the ballots and the results of the recount. In short, there was vagueness as to what rule had been followed in the decryption and printing proceeding.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest because the term of the position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the COMELEC's decision to use the digital images of the ballots and sustain its decision thereon. Although a remand of the election protest to the RTC would have been the appropriate procedure, we direct the COMELEC En Banc instead to conduct the decryption and printing of the digital images of the ballots and to hold recount proceedings, with due notice to all the parties and opportunity for them to be present and to participate during such proceedings. Nothing less serves the ideal objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance with this disposition, the COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010 Elections. That is not the concern of the Court as yet. The Court simply does not want to countenance a denial of the fundamental right to due process, a cornerstone of our legal system.[11] After all, it is the Court's primary duty to protect the basic rights of the people vis-à-vis government actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people. But then again, it is important to remember this ethical principle: "The end does not justify the means." No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles.[12]
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and DIRECTS the Commission on Elections En Banc to conduct proceedings for the decryption of the picture images of the ballots involved in the protest after due authentication, and for the recount of ballots by using the printouts of the ballot images, with notice to and in the presence of the parties or their representatives in accordance with the procedure laid down by Rule 15 of COMELEC Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.
Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Villarama, Jr., Mendoza, and Reyes, JJ., concur.
Sereno, C.J., Del Castillo, Abad, Perlas-Bernabe, and Leonen, JJ., joins the dissent of J. Carpio.
Carpio, J., see dissenting opinion.
Perez, J., concur in a separate opinion.
[1] Rollo, p. 125.
[2] Id. at 63
[3] Id. at 575-577.
[4] COMELEC Resolution No. 8804, Rule 6, Section 1.
[5] G.R. No. 199050, August 28, 2012.
[6] 2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3(r) defines "electronic document" as follows:
[7] G.R. No. 199149, January 22, 2013.x x x xLikewise, COMELEC Resolution No. 8804 (In Re: COMELEC Rules of Procedure on Disputes in an Automated Election System in Connection with the May 10, 2010 Elections), Rule 2, Section 1(q) defines "electronic document" as follows:
(r) Electronic document refers to the record of information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally-signed documents and any printout or output, readable by sight or other means that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the picture image of the ballots or the electronic copies of the electronic returns, the statements of votes, the certificates of canvass, the audit log, and other electronic data processed by the PCOS and consolidation machines.
x x x x
x x x x
(q) Electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means which accurately reflects the electronic document.
For purposes of these Rules, electronic documents refer to either the picture image of the ballots and the electronic copies of the electronic returns, the statements of votes, the certificates of canvass, the audit log, and of the other electronic data relative to the processing done by the PCOS machines and the various consolidation machines.
x x x x
[8] Rollo, p. 102.
[9] G. R. No. 188308, October 15, 2009, 603 SCRA 692.
[10] Id. at 716-717.
[11] Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635, 653.
[12] Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 177.
PEREZ, J.:
The issue as basic as due process of law and the opinion of as many as seven of us who saw that petitioner was deprived of the fundamental right highlights my duty to join the discussion. With the present motion for reconsideration providing the opportunity to look into the reasons that divided the Court, I do so.
1. The electoral contest is all about over-voting. Simply, it means that in the contested ballots both the slots separately for petitioner Maliksi and respondent Saquilayan who vied for the position of Mayor of Imus, Cavite, were shaded. The guideline in the appreciation of ballots with over-voting is embodied in Guideline No. 5 used by the COMELEC. Thus:
5. On over-voting. It has been the position of the Commission that over-voting in a certain position will make the vote cast for that position STRAY but will not invalidate the entire ballot, so IN CASE OF OVER VOTING FOR THE CONTESTED POSITION, SUCH VOTE SHALL BE CONSIDERED STRAY AND WILL NOT BE CREDITED TO ANY OF THE CONTENDING PARTIES. (Emphasis supplied)
There is a correlated guideline, Guideline No. 2, in the sense that both guidelines refer to instances of shading. However, as regards the covered matter and the consequence, the two rules are hugely different. Guideline No. 2 is about an entire ballot that is claimed to have been shaded by two or more persons, and it states:
2. On ballots claimed to have been shaded by two or more persons. - Unlike in manual elections where it is easy to identify if a ballot has been written by two persons. in case of an automated election, it would be very hard if not impossible to identify if two persons shaded a single ballot. The best way to identify if a ballot has been tampered is to go to the digital image of the ballot as the PCOS machine was able to capture such when the ballot was Jed by the voter into the machine when he cast his vote. In the absence of any circumstance showing that the ballot was shaded by persons other than the voter, the ballots should not be rejected to give effect to the voter's intent.
Clearly, in case of a ballot claimed to have been shaded by two or more persons, there is an inquiry to determine whether or not the ballot was shaded by person/s, other than the voter. The Guideline implies a presumption in favor of shading by the voter whose ballot should be rejected only if there is "any circumstance" showing shading by somebody else.
On the contrary, in case of over-voting which is the case at hand, Guideline No. 5 outrightly provides the consequence that the vote shall be considered stray and will not be credited to any of the contending parties.
The reason behind the significant variance in the consequences of the two kinds of shading can be debated endlessly. The obviousness of the difference outlined by the COMELEC, which is the sole judge of an election contest, forecloses such a debate. What the obviousness brings about, as it is my intention, is the grave abuse of discretion on the part of the COMELEC.
The COMELEC disobeyed its own rule that over-voting results in a stray vote. Relying on "allegations of ballot and ballot box tampering," which allegations are without proof from the proponent, the COMELEC nonetheless favors the allegations through its own inspection of the ballot boxes to support its conclusion that "it is apparent that the integrity of the ballots had been compromised." That was done on the first review of the appealed decision. On second review, the COMELEC resorted to the observation of "unprecedented number of double-votes" which left it "with no other option but to dispense with the physical ballots and resort to their digital image."
The grave abuse of discretion of the COMELEC is clear from its own words describing what it did in this case.
It can be implied from its own decision on first review that the COMELEC agrees that before the physical ballots can be disregarded and the digital image favored, the tampering of the ballot box must be prim·ly proven. It had to allude to ballot box tampering because without the defect, the integrity of the ballots is unassailable. No proof of tampering came from the contestants in this case. The COMELEC relied on its observations. And it did not even detail the circumstances of the inspection it made and the facts that make tampering "apparent."
Indeed, the over-voting itself cannot be the proof of ballot tampering. Even if we go by the Guideline on the claim of ballot shading by two or more persons, the presumption is that the ballot was shaded only by the voter, and this presumption prevails absent any circumstance showing that the ballot was shaded by persons other than the voter. Plainly, in the instant case, there is no circumstance independent of the fact of shading that such shading was done by someone other than the voter. Its odd reliance on the over-voting itself underscores the applicability of the presumption that, m this case, the voter himself/herself did the shadings.
The fact is that petitioner has in his Election Protest, come forward with an explanation about over-voting. Thus:
4.A.6. In Official Sample Ballot with Voters Information Sheet (VIS) issued by the Commission on Elections, the number four candidate for Mayor of Imus, Cavite is Emmanuel L. Maliksi which appears on the first row, third column in the said COMELEC official sample ballot, x x x. However, in the Official Ballot, the name of Emmanuel L. Maliksi appears on the second row, second column as number four candidate and the name of the fifth candidate Homer T. Saquilayan was moved from the first row fourth column to first row third column where the name of Emmanuel L. Maliksi was originally located on the sample ballot, x x x. This evidently resulted in the confusion and mistake in the shading of the proper space for mayoralty candidate Emmanuel L. Maliksi.
This proposition was evidently found tenable by the trial court which, upon the opening of the ballot boxes and ballots, applied the guideline that the over-votes are stray votes. That proposition based on facts reached the COMELEC via appeal. It should have at least merited a discussion.
2. I concur with the ponencia of Justice Bersamin. I discussed the lack of factual and legal premise for the decryption done by the COMELEC to punctuate its grave abuse of discretion that even went further and similarly characterized the process of decryption itself.
I thus join Justice Bersamin in the remand of this case to the COMELEC for immediate cleansing of the process, which after all, kindred to the purpose of Justice Bersamin, is the object of my participation in the resolution of this contest, not the pleasure of anyone of the contestants.
CARPIO, J.:
For the Court's consideration is the Extremely Urgent Motion for Reconsideration filed by Emmanuel L. Maliksi (Maliksi) assailing this Court's 12 March 2013 Decision which affirmed the 14 September 2012 Resolution of the Commission on Elections (COMELEC) En Bane and declared Homer T. Saquilayan (Saquilayan) as the duly-elected Municipal Mayor of Imus, Cavite.
In his motion for reconsideration, Maliksi cited extensively fi·om the Dissenting Opinion[1] and asserted that he was denied due process when the COMELEC First Division decrypted, printed, and examined the ballot images without notice to him. Maliksi further alleged that this Court's 12 March 2013 Decision is null and void for having been promulgated in the absence of Associate Justice Jose Portugal Perez (Justice Perez).
First, I will discuss the issue of the absence of Justice Perez when the Court's 12 March 2013 Decision was promulgated.
Section 4, Rule 12 ofthe Internal Rules of the Supreme Court allows a member of this Court to leave his or her vme in writing. The Rule states:
SEC. 4. Leaving a vote. - A Member who goes on leave or is unable to attend the voting on any decision, resolution, or matter may leave his or her vote in writing, addressed to the Chief Justice or the Division Chairperson, and the vote shall be counted, provided that he or she took part in the deliberation.
As such, there was nothing irregular when Justice Perez lefl his vote in writing with the Chief Justice because he took part in the previous deliberation of the case.
Maliksi again assails the decryption and printing of the ballot images for the first time on appeal.
I reiterate that Saquilayan first requested for the printing of the ballot images before the trial court when he filed a Motion To Print Picture Images Of The Ballot Boxes Stored In The Memory Cards Of The Clustered Precincts[2] dated 21 March 2011. In that Motion, Saquilayan made the allegation of tampering citing that during the preliminary revision proceedings, he noticed an unusually large number of double-voted ballots only for the position of Mayor and that the recorded counts of all the revision committees show significant discrepancies between the ballot counts and the results reflected in the election returns.[3] It was only on 3 May 2011 that the trial court in an Omnibus Order granted Saquilayan's motion for the printing of the ballot images in the CF cards.[4] On 16 May 2011, the COMELEC Election Records and Statistics Department (ERSD) informed Saquilayan that the CF cards were still in the custody of the trial court. In a Manifestation and Request[5] dated 20 May 2011, Saquilayan asked the trial court to forward the CF cards of the protested precincts to the ERSD to enable the COMELEC to decrypt and print the ballot images. The decryption of the ballot images was set on 21 June 2011.
Maliksi then filed a Motion for Honorable Court to Request ERSD to Specify Procedure to Decrypt Compact Flash (CF) Cards. The trial court, in an Order[6] dated 17 June 20 11, requested the ERSD to specify the procedure that it would undertake during the proceedings and set the case for conference on 27 June 2011. In a letter[7] dated 20 June 2011, Maliksi wrote the ERSD requesting that further proceedings be deferred and held in abeyance in deference to the 17 June 2011 Order of the trial court. On 27 June 20 II, on the date the case was set for conference, Maliksi filed a Motion to Consider That Period Has Lapsed to Print Ballot's Picture Images[8] on the ground that Saquilayan only had 30 days from receipt of the Omnibus Order dated 3 May 2011 to accomplish the printing of the ballot images. Maliksi alleged that the 30-day period started on 10 May 2011 when Saquilayan received the 3 May 2011 Omnibus Order and ended on 22 June 2011. Thus, Saquilayan was already barred from having access to the electronic data in the COMELEC's back-up server and to print the ballot images in the CF cards. The trial court granted Maliksi's motion in its Order dated 3 August 2011[9] despite the fact that the delay in the decryption could not be attributed to Saquilayan's fault alone but also due to the failure of the trial court to turn over the CF cards to the ERSD and to Maliksi's motion for the ERSD to specify the procedure in decrypting the CF cards. Clearly, the issue of tampering, as well as the request for the decryption of the ballot images, was not raised for the first time on appeal.
Maliksi also echoed the Dissenting Opinion that the printing of the ballot images may only be resorted to after the proper Revision/Recount Committee had first determined that the integrity of the ballots and the ballot boxes was not preserved. Citing Section 6, Rule 15 of COMELEC Resolution No. 8804,[10] as amended by Resolution No. 9164,[11] Maliksi alleged that the decryption of the images stored in the CF cards and the printing of the decrypted images must take place during the revision or recount proceedings and that it should be the Revision/Recount Committee that determines whether the ballots are unreliable.
Section 6, Rule 15 should be read together with Rule 16 of Resolution No. 8804, as amended by Resolution No. 9164, particularly Section 3, which provides:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion to be approved by the Division of the Commission requesting for the printing of ballot images in addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the necessary materials in the printing of images such as but not limited to copying papers, toners and printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy of the ballot images contained in a secured/hashed disc on the condition that the ballot images be first printed, at the expense of the requesting party, and that the printed copies be signed by the parties' respective revisors or representatives and by an ERSD IT-capable representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics Department (ERSD), for the printing or images. Said director shall in turn designate a personnel who will be responsible in the printing of ballot images. (Emphasis supplied)
Section 3, Rule 16 does not require any allegation of tampering before the printing of ballot images may be requested by the parties. It does not require prior determination by the Revision/Recount Committee that the integrity of the ballots and the ballot boxes was not preserved. Under Section 3, Rule 16, the request may be made when the parties deem the printing of the ballot images necessary.
To repeat, the parties can request for the printing of the ballot images "in case the parties deem it necessary." This is a ground separate from that in Section 6(e), which refers to a determination ofthe integrity ofthe ballots by the Revision/Recount Committee. Section 3, Rule 16 provides that "[i]n case the parties deem it necessary, they may file a motion to be approved by the Division of the Commission requesting for the printing of ballot images in addition to those mentioned in the second paragraph of item (e)." The second paragraph of item (e) speaks of signs of tampering, or if the ballot box appears to have been compromised, thus:
Section 6. Conduct of the Recount - x x x. xxxx
(e) Before· the opening of the ballot box, the Recount Committee shall note its condition as well as that of the locks or locking mechanism and record the condition in the recount report. From its observation, the Recount Committee must also make a determination as to whether the integrity of the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been compromised, the Recount Committee shall still proceed to open the ballot box and make a physical inventory of the contents thereof The committee shall, however, record its general observation of the ballots and other documents found in the ballot box. (Emphasis supplied)
Section 3, Rule 16 allows an additional ground for the printing of the ballot images: the determination by the parties that the printing is necessary. Clearly, even without signs of tampering or that the integrity of the ballots and the ballot boxes had been compromised, the parties may move for the printing of the ballot images. In this case, the COMELEC En Bane made it clear in its Comment[12] that the COMELEC First Division ordered the decryption, printing and examination of the digital images because the COMELEC First Division "discovered upon inspection that the integrity of the ballots themselves was compromised and that the ballot boxes were tampered."[13] However, applying Section 3 of Rule 16, the finding of tampering was not even necessary for the COMELEC First Division to allow the printing of the ballot images.
Saquilayan moved for the printing of the ballot images as early as 21 March 2011 before the trial court. Saquilayan reiterated his motion to have the ballot images printed when he filed his appeal brief[14] before the COMELEC First Division. Saquilayan pointed out that he filed reiterations ol his motion to print with copies furnished to Maliksi until the COMELEC First Division ordered the printing.[15] There is nothing in the records which showed that Maliksi opposed Saquilayan's motion.
Section 3, Rule 9 of Resolution No. 8808 provides:
Section 3. No hearings on motions. Motions shall not be set for hearing unless the Commission directs otherwise. Oral argument in support thereof shall be allowed only upon the discretion of the Commission. The adverse party may file opposition five days from receipt of the motion, upon the expiration of which such motion is deemed submitted for resolution. The Commission shall resolve the motion within five days. (Emphasis supplied)
When Maliksi did not oppose Saquilayan's motion for the printing of the ballot images, he is deemed to have waived his right to oppose the motion. The motion was deemed submitted for resolution. The COMELEC En Banc categorically stated that Maliksi "never questioned the Order of decryption of the First Division nor did he raise any objection in any of the pleadings he filed with this Commission - a fact which already places him under estoppel."[16] Maliksi could not claim that he was denied due process because he was not aware of the decryption proceedings. The Order[17] dated 28 March 2012 where the COMELEC First Division directed Saquilayan to deposit the required amount for expenses tor the supplies, honoraria, and fee for the decryption of the CF cards was personally delivered to Maliksi's counsel. The Order[18] dated 17 April 2012 where the COMELEC First Division required Saquilayan to deposit an additional amount for expenses for the printing of additional ballot images from four clustered precincts was again personally delivered to Maliksi's counsel. Maliksi feigned ignorance of the decryption proceedings until he received the COMELEC First Division's Resolution of 15 August 2012.
As regards Maliksi's claim that he was deprived of his right to be present during the authentication process and the actual printing of the ballot images, Section 3 of Resolution No. 8804, as amended by Resolution No. 9164, does not require the pa1ties or the.ir representatives to be present during the printing of the ballot images. Maliksi should have moved to be present at, or to observe, the decryption proceedings when he received the 28 March 2012 Order directing the decryption. Maliksi did not, and thus he waived whatever right he had to be present at, or to observe, the decryption proceedings.
I emphasize that there is no denial of due process where there is opportunity to be heard, either through oral arguments or pleadings.[19] Further, the fact that a party was heard on his motion for reconsideration negates any violation of the right to due process.[20] Maliksi's motion for reconsideration was directed against the entire resolution of the First Division, including the recount proceedings which he claimed to have violated his right to due process.
Maliksi alleged that the COMELEC First Division should have limited itself to reviewing the evidence on record, meaning the physical ballots, instead of using the decrypted images. Maliksi thus wanted the COMELEC First Division to ignore its finding of tampering. On this issue, the COMELEC En Bane stressed:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested) -- thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those precincts. We find this too massive to have not been detected on election day, too specific to be random and too precise to be accidental which leaves a reasonable mind no other conclusion except that those 8,387 cases of double-shading were purposely machinated. These dubious and highly suspicious circumstances left us with no other option but to dispense with the physical ballots and resort to their digital images. To recount the tampered ballots will only yield us tampered results defeating the point of this appeal.[21]
In his Reflections submitted to this Court, Justice Perez stated that the present electoral contest is all about over-voting. Justice Perez cited Guideline No. 5 used by the COMELEC which states:
5. On over-voting. It has been the position of the Commission that over voting in a certain position will make the vote cast for that position stray but will not invalidate the entire ballot, so in case of over-voting for the contested position, such vote shall be considered stray and will not be credited to any of the contending parties.
Justice Perez added that "in case of over-voting which is the case at hand, Guideline No. 5 outrightly provides- the consequence that the vote shall be considered stray and will not be credited to any of the contending parties." Justice Perez stated that the COMELEC disobeyed its own rule that over-voting results in a stray vote.
This case is not a case of over-voting under Guideline No. 5. In over voting under Guideline No. 5, one person, that is, the voter himself, votes for two or more persons for one elective position. When the ballot is fed to the PCOS machine, the machine reads that two or more candidates for the same position had been shaded. The digital image will record two spaces shaded for one position. On the other hand, in double-shading, the voter shades the space for one candidate but another person, after the ballot is fed to the PCOS machine, surreptitiously shades another space for another candidate for the same position. In double-shading, the digital image shows only one shaded space for a candidate while the ballot shows two shaded spaces. In the present case, there was actually a double-shading (although it was inaccurately referred to as over-voting in the COMELEC First Division's Decision) which was done by person or persons other than the voter. When the ballot was fed to the PCOS machine, the machine read only one vote for one candidate for one position. After the double-shading, there were already two votes for two candidates for the same position, but the digital image still contains only one shaded space.
Here, the double-shading happened after the ballots were fed to and read by the PCOS machines because the digital images show only one shaded space while the ballots show two shaded spaces. Double-shading is a post-election operation. The double-shading covered 8,387 ballots, "exclusively affecting the position of Mayor and specifically affecting the ballots of Saquilayan"[22] and the 8,387 affected ballots surprisingly all came from 53 clustered precincts "specifically pinpointed by Maliksi as his pilot precincts."[23]
The situation here is the one covered by Guideline No. 2 cited by Justice Perez which states that "[t]he best way to identify if a ballot has been tampered is to go to the digital image of the ballot as the PCOS was able to capture such when the ballot was fed by the voter into the machine when he cast his vote." This is what the COMELEC First Division did and the COMELEC First Division discovered that there was no double-shading in the digital images of the ballots. Obviously, the double-shading was done by persons other than the voters.
Again, Saquilayan raised the issue of tampering of the ballots as early as 21 March 2011 before the trial court. The COMELEC First Division took into consideration the allegation of tampering. Even without the allegation of tampering, Section 3, Rule 16 of Resolution No. 8804, as amended by Resolution No. 9164, allows the parties to request for the printing of the ballot images if the parties deem it necessary. It is undisputed that Saquilayan requested the COMELEC for the printing of the ballot images and Maliksi did not file any opposition to Saquilayan's motions. Upon inspection of the ballots and ballot boxes, the COMELEC First Division found that the integrity of the ballots had been compromised. When the digital images of the ballots were examined, the COMELEC First Division found that there was no doubie-shading. As such, the ballots should not be considered stray under Guideline No. 5.
ACCORDINGLY, I vote to DENY with FINALITY the Extremely Urgent Motion for Reconsideration filed by Emmanuel L. Maliksi.
[1] Penned by Associate Justice Lucas P. Bersamin.
[2] Rollo, pp. 283-285.
[3] Id. at 283.
[4] Id. at 293-295.
[5] Id. at 298-300.
[6] Id.at302-303.
[7] Id. at 304.
[8] Id. at 307-309.
[9] Id. at 359. Omnibus Order dated 1 September 2011.
[10] In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10, 2010 Elections.
[11] In the Matter of Reinstating and Reimplementing Come lee Resolution No. 8804 with Amendments.
[12] Rollo, pp. 484-516.
[13] Id. at 500.
[14] Id. at 237, Saquilayan's Comment, p. 25.
[15] Id.
[16] Id. at 61.
[17] Id. at 362.
[18] Id. at 366.
[19] Atty. Octava v. Commission on Elections, 547 Phil 647 (2007).
[20] See German Management & Services, Inc. v. Court of Appeals, 258 Phil. 289 (1989).
[21] Rollo, p. 60.
[22] Id.
[23] Id.