Reframing PreProclamation Controversy

as a Remedy under the

PCOS Automated
Election System
The first nationwide automated elections held on 10 May 2010 highlighted some inadequacies in
the Philippine legal framework on elections. Although the country openly embraced the use of
technology to fast track the determination of election results and to ensure the credibility of the
electoral process, many aspects of the legal framework got stuck in the twilight zone such as the
provisions on pre-proclamation controversy.
In general, a pre-proclamation controversy is an administrative remedy to correct errors,
discrepancies, defects or fraud committed at the canvassing level. Summary in nature, the remedy
covers such errors, discrepancies, defects or fraud that are immediately discoverable on the face of
the election returns.[1] Its purpose is to ensure that the proclamation of winning candidates
is prima facie regular. Fraud or irregularity that are not immediately discoverable on the face of the
election returns such as those affecting the appreciation of the ballots or involving fake or
substituted ballots are properly subject of another remedy (an election protest).[2] Preproclamation controversy is explicitly recognized by the 1987 Constitution.[3]
Admittedly, however, pre-proclamation controversy has specific context under the manual election
system when the 1987 Constitution was drafted and ratified the manual preparation,
transmission and canvassing of election returns. The Omnibus Election Code,[4] which predates the
1987 Constitution, allows any candidate or any registered political party or coalition of political
parties to file a pre-proclamation petition on the following grounds:[5]
1.

Illegal composition or proceedings of the board of canvassers;

2.

The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in section 233 (i.e., when election returns are delayed, lost,
destroyed),[6] section 234 (i.e., when there are material defects in the election returns),

[7]section 235 (i.e., when election returns appears to be tampered with or falsified)[8] and
section 236 (i.e., where there are discrepancies in the election returns)[9] of the OEC;
3.

The election returns were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufactured or not authentic; and

4.

When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.

Rep. Act No. 7166,[10] adopted after the ratification of the 1987 Constitution, reaffirmed the
grounds for pre-proclamation controversy.[11] The 1993 COMELEC Rules of Procedure also
recognizes, as proper ground for a pre-proclamation controversy, the correction of manifest errors.
[12]
As a general rule, pre-proclamation controversy is not allowed for the elections for President, VicePresident, Senators and Member of the House of Representatives on matters relating to the
preparation, transmission, receipt, custody and appreciation of election returns or the certificates of
canvass, as the case may be, expect in the following instances:[13]
(a) There is a discrepancy in other authentic copies of the certificate of canvass or in any of its
supporting document such as statement of votes by city/municipality/by precinct or discrepancy in
the votes of any candidate in words and figures in the certificate;
(b) There is a discrepancy in the votes of any candidate in words and figures in the certificates of
canvass against the aggregate number of votes appearing in the election returns of precincts
covered by the certificate of canvass;
(c) When the certificate of canvass, duly certified by the board of canvass of each province, city of
district, appears to be incomplete; and
(d) When it appears that any certificate of canvass or supporting statement of votes by
city/municipality or by precinct bears erasures or alteration which may cast doubt as to the veracity
of the number of votes stated therein, and may affect the result of the election.
Rep. Act No. 9369,[14] which provides the general framework for automated elections, made no
mention of any change on the grounds that may be raised in pre-proclamation controversy despite
the contemplated shift in the processes of preparation, transmission and canvassing of election
returns as follows: First, unlike in the manual elections where the election returns is prepared by
hand, the election returns under the system adopted in 10 May 2010 elections is generated by the
Precinct Count Optical Scan (PCOS) machine. Second, the transmission of the election returns is
done through electronic means and received by the Central Canvassing Unit (CCU). Third, the CCU
also does the consolidation of the results automatically and generates the requisite Certificate of
Canvass (COC).

For the 2010 election, the Commission on Elections (COMELEC) limited the grounds that may be
raised in a pre-proclamation petition to: (a) Illegal composition of the BOC, and (b) illegal
proceedings of the BOC (i.e.precipitate canvassing, terrorism, lack of sufficient notice to the
members of the BOCs, and improper venue).[15]
The poll body was of the opinion that aside from those pertaining to the composition and
proceedings of the BOC, legislative amendment is required so that the other grounds for preproclamation controversy could be applied in the context of an automated election since the
prevailing laws contemplate the manual preparation, transmission and canvassing of election
returns. Some COMELEC officials were also of the view that the feared discrepancies or errors in
the generation of election returns by the PCOS machine, or in its transmission and canvass, will
never occur. As a policy, COMELEC also favored the limitation on the grounds for pre-proclamation
controversies to speed up delivery of the results of the votes.[16] Unfortunately, some errors in the
transmission of election returns did occur. In the May 2010 elections, it has been reported that the
Final Testing and Sealing (FTS) results were erroneously transmitted, instead of the actual election
results, in at least fifty-seven provinces.[17]
It is my considered view that while legislative amendment is desirable so as to clearly lay down the
policy on pre-proclamation as a remedy, the general language used by existing laws allows its
application in an automated election. Incomplete, erroneous or fraudulent election returns and
certificates of canvass could very well happen in machine-generated and transmitted election
returns and certificates of canvass. In fact, it can even be reasonably argued that in retaining the
remedy of pre-proclamation controversy in Rep. Act No. 9369, Congress intended it to apply in the
context of automated election.
In my opinion, the better policy is not to obliterate pre-proclamation controversy as a remedy, but
to reframe and retool it in the context of the PCOS automated election. The automated system is
still in its infancy and rather than suppress legitimate grievances for the sake of expediency, preproclamation controversy should be appreciated in the light of its purpose to ensure that the
proclamation of winning candidates is prima facie regular. The alternative is to cast a blind eye to
the possible kinks in the system and to push the aggrieved parties to the more arduous and costly
remedy of election protest.
Thus, in addition to the illegal composition and proceedings of the BOC, it is recommended that
following[18] be considered by COMELE as proper grounds for pre-proclamation controversy:
1.

When the election returns or certificate of canvass, in appropriate cases, which are
electronically transmitted for canvass:

a. Are incomplete;
b. Contain votes or data that are different from those reflected in the other copies thereof, whether
printed or electronic;

c. Have come from non-existent precincts; or

d. Not from the appropriate PCOS machines.
e. Not from the appropriate Central Canvassing Unit (CCU)
2. When the votes in the same election return or certificate of canvass is tabulated more than
once;
3. When there are discrepancies in the figures reflected in the statement of votes and those in the
certificate of canvass;
4. When falsified election returns or certificate of canvass have been canvassed; and
5. When the CCU used for Canvassing is not the one officially appropriated by COMELEC for
canvassing.

[1] Lucman v. COMELEC, G.R. No. 166229, June 29, 2005.

[2] Utatalum v. COMELEC, G.R. Nos. 84843-44; Chu v. COMELEC, 319 SCRA 482.
[3] 1987 Const., Art. IX-C, sec. 2(2).
[4] Batas Pambansa Blg. 881, adopted on December 3, 1985.
[5] Batas Pambansa Blg. 881, Secs. 241 & 243.
[6] Sec. 233. When the election returns are delayed, lost or destroyed. In case its copy of the
election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such
missing election returns from the board of election inspectors concerned, or if said returns have
been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use
any of the authentic copies of said election returns or a certified copy of said election returns issued
by the Commission, and forthwith direct its representative to investigate the case and immediately
report the matter to the Commission.
The board of canvassers, notwithstanding the fact that not all the election returns have been
received by it, may terminate the canvass and proclaim the candidates elected on the basis of the
available election returns if the missing election returns will not affect the results of the election.
[7] Sec. 234. Material defects in the election returns. If it should clearly appear that some
requisites in form or data had been omitted in the election returns, the board of canvassers shall
call for all the members of the board of election inspectors concerned by the most expeditious
means, for the same board to effect the correction: Provided, That in case of the omission in the

election returns of the name of any candidate and/or his corresponding votes, the board of
canvassers shall require the board of election inspectors concerned to complete the necessary data
in the election returns and affix therein their initials: Provided, further, That if the votes omitted in
the returns cannot be ascertained by other means except by recounting the ballots, the
Commission, after satisfying itself that the identity and integrity of the ballot box have not been
violated, shall order the board of election inspectors to open the ballot box, and, also after
satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of
election inspectors to count the votes for the candidate whose votes have been omitted with notice
thereof to all candidates for the position involved and thereafter complete the returns.The right of a
candidate to avail of this provision shall not be lost or affected by the fact that an election protest is
subsequently filed by any of the candidates.
[8] Sec. 235. When election returns appear to be tampered with or falsified. If the election
returns submitted to the board of canvassers appear to be tampered with, altered or falsified after
they have left the hands of the board of election inspectors, or otherwise not authentic, or were
prepared by the board of election inspectors under duress, force, intimidation, or prepared by
persons other than the member of the board of election inspectors, the board of canvassers shall
use the other copies of said election returns and, if necessary, the copy inside the ballot box which
upon previous authority given by the Commission may be retrieved in accordance with Section 220
hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not
authentic, prepared under duress, force, intimidation, or prepared by persons other than the
members of the board of election inspectors, the board of canvassers or any candidate affected
shall bring the matter to the attention of the Commission. The Commission shall then, after giving
notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate
that its identity and integrity have been violated, order the opening of the ballot box and, likewise
after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the
board of election inspectors to recount the votes of the candidates affected and prepare a new
return which shall then be used by the board of canvasser
[9] Sec. 236. Discrepancies in election returns. In case it appears to the board of canvassers that
there exists discrepancies in the other authentic copies of the election returns from a polling place
or discrepancies in the votes of any candidate in words and figures in the same return, and in
either case the difference affects the results of the election, the Commission, upon motion of the
board of canvassers or any candidate affected and after due notice to all candidates concerned,
shall proceed summarily to determine whether the integrity of the ballot box had been preserved,
and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the
polling place solely for the purpose of determining the true result of the count of votes of the
candidates concerned.
[10] An Act Providing For Synchronized National And Local Elections And For Electoral Reforms,
Authorizing Appropriations Therefor, And For Other Purposes

[11] Rep. Act No. 7166, Sec. 17. Pre-proclamation Controversies; How Commenced. Questions
affecting the composition or proceedings of the board of canvassers may be initiated in the board
or directly with the Commission. However, matters raised under Sections 233, 234, 235 and 236 of
the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and
appreciation of the election returns, and the certificates of canvass shall be brought in the first
instance before the board of canvassers only.
[12] Rule 27, Sec. 4(e).
[13] Rep. Act. No. 9369, Secs. 37 & 38, amending Rep. Act No. 7166, Secs. 15 & 30.
[14] An Act Amending Republic Act No. 8436, Entitled An Act Authorizing The Commission On
Elections To Use An Automated Election System In The May 11,1998 National Or Local Elections
And In Subsequent National And Local Electoral Exercises, To Encourage Transparency, Credibility,
Fairness And Accuracy Of Elections, Amending For the purpose Batas Pambansa Blg. 881, As
Amended, Republic Act No. 1166 And Other Related Election Laws, Providing Funds Therefor And
For Other Purposes, approved on January 23, 2007.
[15] COMELEC Resolution No. 8804, Rule 3, Sec. 1.
[16] Kristine Alave, Automated polls spawn automatic protests, Inquirer.net, 26 May
2010.<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100526-272065/Automatedpolls-spawn-automatic-protests> [Accessed on 15 December 2010] .
[17] Erroneous COCs in 57 provinces blamed on Smartmatics counting. <http://eucenpeg.com/top%20stories/june%202010/Erroneous%20COCs.html> [Accessed on 12 January
2011].
[18] Culled from the proposals of election law experts and practitioners who attended the
roundtable discussions and focused group discussions. SeeLibertas (2011) Issues and Challenges
on Election Dispute Resolution Under the PCOS Automated Elections, p.48.

SEC. 28. Section 29 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 35. Prohibited Acts and Penalties. - The following shall be penalized as provided in this Act,
whether or not said acts affect the electoral process or results:
"(a) Utilizing without authorization, tampering with, damaging, destroying or stealing:
"(1) Official ballots, election returns, and certificates of canvass of votes used in the system;
and
"(2) Electronic devices or their components, peripherals or supplies used in the AES such as
counting machine, memory pack/diskette, memory pack receiver and computer set;

"(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of
computer counting devices and the processing, storage, generation and transmission of election
results, data or information;
"(c) Gaining or causing access to using, altering, destroying or disclosing any computer data,
program, system software, network, or any computer-related devices, facilities, hardware or
equipment, whether classified or declassified;
"(d) Refusal of the citizens' arm to present for perusal its copy of election return to the board of
canvassers;
"(e) Presentation by the citizens' arm of tampered or spurious election returns;
"(f) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens''
arm their copy of election returns; and
"(g) The failure to post the voters' list within the specified time, duration and in the designated
location shall constitute an election offense on the part the election officer concerned."
"Any person convicted for violation of this Act, except those convicted of the crime of electoral
sabotage, shall be penalized with imprisonment of eight years and one day to twelve (12) years
without possibility of parole, and perpetual disqualification to hold public office and deprivation of the
right of suffrage. Moreover, the offender shall be perpetually disqualified to hold any non-elective
public office."

A History of Automated Elections in the Philippines

As early as 1992, the Commission on Elections (Comelec) has identified the modernization of the
electoral process as a goal of what was called Operation Modex (Modex for Modernization and Excellence). In the following
year, Comelec commissioned foreign consultants to conduct studies on modernizing elections in the Philippines. Several
Comelec officials also travelled to the United States to inspect the voting system there. A US company was chosen to supply
canvassing equipment. No contract between the government and the supplier could be signed, however, pending the passage
of a law on the use of a new election system. Meanwhile, Comelec conducted public demonstrations of the new system using
two units on loan from the supplier.
The change in administration in Comelec led to a repeat process of public bidding, and another supplier was chosen to
provide the equipment that was later used in the pilot-testing of the new system in the 1996 ARMM Elections. The new
equipment consisted of machines with optical mark recognition (OMR) capacities in scanning and tallying computerized
ballots. Comelec personnel and ARMM field officials were trained to handle the whole electoral process. Results were

determined just 48 to 72 hours after the end of Election Day on September 9. Demonstrations of the new system to the public
followed suit.
In 1997, RA 8436 was passed into law, authorizing Comelec to implement an automated system in the May 1998 elections,
and in subsequent national and local elections. However, lack of preparation, time and funding led to the use of the
automated process only in Lanao del Sur, Maguindanao, Sulu, and Tawi-Tawi in the 1998 elections. In 2001, the COMELECs
failure to launch a public education campaign on the new election process led to the unintended exclusion of an estimated 3 to
6 million voters (Schaffer, 2009).
By 2003, Comelec had started to build a centralized computer database of all registered voters, including digital photos,
fingerprints, and signatures. With $18 M worth of newly purchased data-capturing machines, the poll body had asked all
registered voters to have their registration validated in order to purge the voters list of ineligible, fictitious, and double voters
(Schaffer, 2009). However, the scheme of validating the voters registrations crashed because the software used in the old
voters list turned out to be incompatible with that of the new list. Many names disappeared when the two lists were merged.
With the May 2004 elections fast approaching and a solution not in view, COMELEC hastily instructed their field officers to just
use their own records. The use of an automated system in counting the votes was also stopped due to controversies of
electoral fraud.
In 2007, RA 9369, amending RA 8436, was passed to encourage transparency, credibility, fairness, and accuracy of
elections. An automated electoral process on a nationwide scale was first enforced in the 2010 elections, which brought
President Benigno Noynoy Aquino III to power. The multinational company, Smartmatic, was chosen to supply the hardware
and software for electronic voting. A few weeks before the elections, the memory chips of the vote counting machines were
found to be faulty, and candidates like former President Joseph Estrada petitioned to postpone the elections and revert to
manual polls. Elections pushed through as scheduled, however, because all technical problems were deemed to have been
addressed. Four hundred sixty-five vote counting machines were reported as malfunctional, but 75,882 machines worked
smoothly. Compared to past elections where the winners were known after weeks or months, local winners were determined in
a few hours, while half of the national winners were known after a day. As Rep. Raymond Palatino wrote, Most people are
satisfied with the election process and the voting results. Foreign media and world leaders have already congratulated the
Philippines for the successful conduct of its first automated elections.
The second nationwide automated elections will take place on May 13, 2013. In a report dated February 18, 2013, Automated
Election System Watch (AES Watch) writes that in the 2013 elections, compact-flash or CF cards will still be used to store the
software responsible for counting the votes and scans. CF cards, they say, are insecure, as these cards can be transplanted
with new data.AES Watch also demands that the automated election system equipment, particularly the source code of the
vote counting machines, be reviewed by political parties and other interested groups in order to ensure the credibility of the
whole system.
An international group of observers of the 2010 Elections pointed out that the new system did not prevent the usual problems
like vote-buying, intimidation of voters, harassment of candidates, campaigning against militant groups, and the presence of
military men and armed goons in precincts (PDI, May 14, 2010). The group found that irregularities and glitches were
pervasive; and they lauded the eager voters and resilient poll precinct workers as the real heroes of that election. As the
groups leader reported, The people made it happen, and not Smartmatic or Comelec!