August 25, 2009
2:00 – 5:00 pm Ilustrado’s
Calle Real, Intramuros, Manila
Atty. Vincent Pepito F. Yambao, Jr., Project Director of the Libertás Election Adjudication Project introduced the FGD participants.
Identification of FGD goals:
Taking off from the June 3, 2009 forum on the prospects of election adjudication under an automatic election system (AES) in the Philippines where areas for dispute under the AES were identified, this FGD intends to:
- Identify certain areas for reform
- Identify possible solutions
- Propose revision or augmentation of Comelec rules
Proposed timetable:
September 4, 2009 - Validation meeting
September 12, 2009 – writeshop for the making of a final proposal to Comelec
DISCUSSION:
Director Benjamin started off the discussion by identifying the areas that will be affected by the AES. He gave a rundown of possible problems that may occur, according to the stages of electoral process. Answers as given by the other participants are also indicated.
A. Inclusion of Voters
Suppose inclusion orders will reach election officers after the machines have been configured/programmed. How shall we allow the voters to vote?
How do we address this, taking into consideration Sec 32 para (g) on inclusion: Petitions shall be heard and decided within 10 days from filing. Cases on appeal shall be decided by RTC within 10 days from appeal. In all cases, the court shall decide these petitions not later than 15 days before election. Note also Sec. 37 (voters excluded thru inadvertence or registered under an erroneous name): the voter may apply for reinstatement anytime before elections.
He/She can be included in voters’ list but may not be included in the configuration of the machine.
Commissioner Ferrer said that the machine is configured in such a way that the number of registered voters is already built in. Anything over that given number will be rejected by the machine. Director Benjamin said that it will be a problem for many field officers who will receive inclusion orders too close to the election. In the 2007 elections, one Iloilo election officer received 920 inclusion orders four days before the elections.
B. Filing of certificate of candidacy
How do we effect substitution of candidates after the ballots have been printed?
Under RA 9006, a vote for a substituted candidate is a stray vote; as such the ballot should provide spaces for write-ins for candidates. Can the machine provide for this? Should each candidate’s name provide for a blank space considering that we cannot anticipate who among the candidates will be disqualified, will die, or will withdraw?
Commissioner Ferrer answered that the old rule in RA 8436 prevails. A vote for the substituted candidate is a vote for the substitute. Write-ins cannot be done because the machines cannot be configured to read handwriting.
Director Benjamin pointed out that in RA 9006, a vote for the substituted candidate is a stray vote unless the substitute carries the same surname as the substituted candidate. To this, Commissioner Ferrer said that there is already a suggested amendment to Congress to reinstate the old rule that a vote for the substituted candidate is a vote for the substitute. This is shepherded through Congress by Representative Locsin and Senator Gordon.
C. Voting
a. filling up of ballots
In an OMR, the voter needs to shade. Will ovals be shaded in ink or pencil? If ink, voter cannot change the vote. If voter realizes he/she has overvoted, what is his/her remedy? Will he/she be allowed to change his/her ballot? How often?
In answer to this Commissioner Ferrer said that Smartmatic has agreed to the recommendation of at least 50% to full shading by indelible ink. The pens that will be used will be flat, thus the oval can be covered with one stroke.
CONSIDER:
The requirement of at least 50% shading should be included in the Comelec rules.
Ms. Beverly Hagerdon Thakur, IFES Chief of Party pointed out that it is best to consider international standards where the intention of voters will be respected, for as long as it is clear, regardless of how he/she fills in the ballot. There must be fallback for the human eye and human mind to determine the intent of voter. She also noted that in a regular election experience at ARMM, voters handling a new ballot design were unsure of how to fill it out. Some BEI and party watchers were asked to help fill out the ballots. If they are told there are no emergency replacement ballots and no second chance in case mistakes are made, they will be extremely careful to the point of asking for assistance. This will negate secrecy of the vote.
Director Rafanan pointed out that considering less than 50% shading will make the machine too sensitive that it will read all markings on the ballot and that would render the ballot a stray vote.
D. BEI
What is the qualification of the support staff? Will they enjoy the same voting privilege as the BEIs? It has been suggested that BEIs and support staff shall avail of local absentee voting. But the LAV can be availed only for voting for national officials. This will deprive 1,800 legitimate voters in the 300 clusters, of the opportunity to vote for their local officials.
Commissioner Ferrer said that there will be ballots allotted for the BEI and support staff of a precinct.
E. Ballot
Sample of ballot shows it has no serial number. It shows only a listing of candidates and the authenticating signature of the chairman. How will the BEI know if what is returned in the official ballot if there is no serial number? This would make the lansadera and cadena system very easy. For verification, BEI chairman will look for signature as well as serial number and compare it with the serial number recorder. But without a serial number on the ballot, it would be very easy to put in a ballot coming from outside the polling place.
Commissioner Ferrer said that the ballot does not have a serial number, but instead will have a barcode. This way, the fake ballot will be rejected. However, this will still be counted. Thus the number of ballots that can be inserted into the machine will be reduced.
According to Director Rafanan, chairman of the Special Bids and Awards Committee for the acquisition of the machines by the Comelec, lansadera system cannot be done because the ballot is long and thick and cannot be hidden unless folded or rolled. Anyone planning on committing lansadera will be caught, or the ballot will be rejected.
F. Machines
How will machines be configured? Can it read ballot assigned to other precincts, in case some machines will fail?
Situations that may result in failure of elections
Clustering of precincts, which must be done at least 90 days before election to allow for configuration of machines
In case of family feuds that may flair up after the precincts have been clustered, some voters cannot come to precincts. Note that in previous manual elections, clustering of precincts is usually done two weeks before election, or on the day of election, voters request for transfer of polling place because of the existence of family feuds. If 300 or 500 of 1,000 can vote and others cannot, because of feud, would this be a ground to declare a failure of election?
G. Replacement of machines
What if machine assigned to precinct does not function? Can we proceed with manual voting and wait for another machine for the counting? Replacement machines are put in hubs. Suppose there are replacement machines but are several kilometers away, what should we do while waiting for the machines to be delivered?
H. Canvassing
Will there still be Pre-proclamation controversies during canvassing? According to Director Benjamin, there still would be for the following grounds:
- Illegal composition of board
- Illegal proceedings of the board
- Correction of manifest errors
- Statistical improbability
- Excessive votes resulting in an obviously manufactured return
- Discrepancy in the documents electronically submitted. As between a printed return and an electronic return, the electronic return will prevail. What is the best evidence, the paper ballots or those which are stored in the machine?
Atty. Luie Tito F. Guia, Libertas Director for the Democratic and Electoral Reforms Desk, noted that many of these issues were already discussed, and solutions have been proposed. While Comelec may be able to answer them, these are issues that the public might raise. He said that the FGD would try to come up with a process that the public might use and be aware of to address these issues whether by Comelec (for pre-election administrative proceedings), or Comelec and Electoral Tribunals (for post-election contest).
Commissioner Ferrer said that these problems were addressed by Smartmatic and extensively discussed in Comelec en banc sessions.
CONSIDER:
Commissioner Ferrer suggested that the representative of Smartmatic and Executive Director Tolentino (as project manager) should be invited to present updated solutions. All interested stakeholders including the Electoral Tribunals should be invited as well for a demonstration by Smartmatic and Executive Director Tolentino.
Atty. Yambao said that the adjudication of election disputes is also the concern of the courts. One issue is on electronic evidence which is needed by the courts and Electoral Tribunals. This point was not squarely answered by Director James Jimenez of the Comelec Education and Information Department at the June 3, 2009 forum. Based on the Automation Law, there appears to be a hierarchy: electronically transmitted returns prevail over the printed returns. On the June 3, 2009 forum, the Supreme Court representative asked how this would affect the electronic evidence rule. Note that SC, HRET and SET have already adopted the electronic evidence rule, but Comelec has not.
CONSIDER:
Comelec can incorporate in its rules the rules on electronic evidence.
Commissioner Ferrer also informed the body of the following updates and clarifications:
1. Once the ballot is spoiled, it goes into the compartment for spoiled ballots. It will not be returned anymore. It will not be replaced. The voter cannot go back and request for a new ballot to replace his/her mistakenly filled ballot. Comelec will not make extra ballots because this is cause for suspicion.
2. Overvoting will affect only the positions that are overrvoted.
3. The Comelec is working on a system for the machine to inform the voter that the ballot is spoiled.
Atty. Guia raised the question of whether in a recount in an election protest, ballots will be appreciated using a machine or by manual checking, considering that the machines are leased and will be returned in December 2010. Ms. Beverly Thakur said that the memory of the machines can be kept depending on configuration of Smartmatic.
CONSIDER: Rules that must be promulgated re electoral adjudication (preferably uniform rules for SC, HRET, SET) should provide for the following:
- Whether recounts should be though machine or manual
- The evidentiary requirement
- Instances where manual count is needed/allowed
- Rules of procedure to follow when machine fails to scan, count, transmit, consolidate. Options: get replacement machine, borrow from other precincts, and last resort is manual or visual counting
Commissioner Ferrer said that if all else fails, not only will there be manual counting, but there will also be manual voting for those who have not yet voted.
Atty. Yambao said that when there is a great disparity between the total number of votes cast for a certain position vis-à-vis the number of actual voters, there can be two scenarios: voters chose not to vote for candidates for certain positions, or it is possible that some of the votes that were not read by the machine, possibly because shading is less than 50%.
CONSIDER:
Under this circumstance where there is doubt as to whether the machines failed to count votes, would the rules allow for protest, to resort to manual counting?
Would the rules of appreciation be the same? If the machine did not read less than 50% shading, would this be reconsidered in manual counting?
The parameters for overvoting should also be looked into. Which votes will be considered?
Atty. Guia asked what if legitimate voters are given fake ballots which they fill out in good faith and these are rejected by machine. What if later in the day genuine ballots which are filled out are entered into the machine, will these be considered? Commissioner Ferrer said he raised this issue at the Comelec meeting and suggested that the fake ballots should be counted by the machine and considered as among the votes cast, even if they are rejected. This way the genuine ballots which are in excess of the number of registered voters for the precinct will no longer be accepted by the machine. Executive Director Tolentino promised to talk to Smartmatic for possible configuration of machine.
Director Rafanan is of the view that the machine should call the attention of the voter that his/her ballot is fake. The voter should be given another ballot, this time a genuine one. There should also be an immediate investigation as to the source of the fake ballot. Once public comes to know that there will be no emergency replacement ballots, the AES will be rejected by them.
Atty. Yambao asked what procedure that will be followed when a voter’s ballot is rejected. How can Comelec address a situation where the entire batch of ballots in a precinct is fake? Director Rafanan agreed that this will pose a problem since the ballots that will be produced and delivered is only 100% of the registered voters in the precinct plus the number of BEI and support staff.
It is also possible that the ballots were switched upon shipping. It is for this reason that Director Rafanan is advocating the amendment of the law to give custody of the ballots to clerks of courts and not municipal treasurers who are not known for their impartiality.
Melds of the Office of Chairman Melo informed that group that Comelec is looking into Radio Frequency Identification Device technology to track ballot boxes and sends signals to Comelec.
Atty. Guia confirmed that in pre-proclamation and post-proclamation controversies, the issue is often about custody. Under the AES, there will be two forms of returns: electronic return and paper return. There is also the ballot itself and its image.
George recommends that to safeguard returns, the rule on preference in custody of the SET, HRET, Comelec should be modified. When the SET takes custody of election protest, the custody of the returns should remain with SET until the end and Comelec will access the returns through SET.
CONSIDER:
Director Benjamin said that Comelec should draft rules governing election protest under an automated election system. How shall we appreciate the ballots when we go into a manual recount? There should be standards.
Atty. Guia noted that the ballots are scanned and stored. Atty. Yambao however asked that since there are no serial numbers, it may be difficult to verify whether the scanned image is from the correct and original ballot. Barcodes cannot be read when they are in scanned material, and not on the original.
Director Benjamin nixed the suggestion to put both barcode and serial number on the ballot. Serial number is only used to determine whether the ballot submitted by the voter is the same ballot given to him. It will be detached from the ballot before it is dropped into the box.
CONSIDER:
Director Benjamin said that if we go into manual recount, we will be confronted with the basic rule that all ballots are presumed valid unless there are clear indications to show the contrary. The intention of the voter, if it can be discerned, shall be respected. Since we have established the rule that the ovals should at least be half shaded to be considered, then we should also have a rule for manual recount that when the oval is less than half shaded then it is not a valid vote, otherwise we will go into a conflict of positions. Different standards and rules for manual and machine count may be needed.
Atty. Raffy Olano said that there is a need to define instances when we can do manual post-election recount (and not administrative recounts) in a protest.
Atty. Guia raised the question of what kind of action may be filed if there is a discrepancy between the figure stated in the audit log and the number of ballots cast. Would this be considered a pre-proclamation issue that would suspend proclamation? It is a pre-proclamation controversy but if it is discovered after proclamation, it is a ground for protest. Director Benjamin said this has happened under the old system where there were more votes cast than persons who actually voted.
What is the purpose of the scanned image of both sides of the ballot? It is intended as a safeguard in case the ballots are lost. It can be used for protest, and as evidence of ballot box switching.
How can we be sure that it is the exact image? As for the one-to-one correspondence between the original and the scanned image, there must be faith that the machine will do its job correctly. That is why it is subjected to tests. The scanned image will be considered primary evidence.
CONSIDER:
Since this is a question of evidence, Comelec rules should also include instances when scanned image can be used as evidence.
Atty. Guia emphasized that for this reason, the custody of the memory of the machine should be assured for it to be considered as the primary evidence. Discrepancy in the election return is ground for opening the scanned image. Custody of memory cards will be with the Banco Central ng Pilipinas pursuant to RA 9369.
What is the trigger for a protest in order to question the result? Director Rafanan said that under RA 9369, a random manual audit count will be conducted. If there is discrepancy, this would be the trigger. Under existing law, the random manual audit count will be conducted at one precinct per Comelec district, thus 250. He suggested that the Comelec en banc make rules requiring that the audit count will be one precinct per municipality or city nationwide, or 1,211. This is sufficient to be considered a scientific sampling.
He also suggested that if the gap of winning or losing is within the margin of error, there should be automatic manual audit count. However, this cannot be done my Comelec resolution. It will require a law.
One issue that will arise out of this is whether the audit will be before proclamation or not. Under the law, it is no clear.
Commissioner Ferrer said that the comparison between the paper and the scanned versions is not to determine whether there is a ground for protest or not. It is to determine the accuracy of the machine and whether it should still be used.
Atty. Guia said that the purpose of the exercise is to afford remedies for people to address issues. It will strengthen credibility of the machine if it is able to withstand protest.
CONSIDER:
Come up with a FAQ or primer on AES for use by election law practitioners.
SYNOPSIS BY ATTY. GUIA:
We do not anticipate any problem with failure of election because we can use existing rules.
For pre-proclamation controversies, the law lists down instances by which these can be entertained. However, there are some issues that may not relate to the certificate of canvass or election return but might have an impact as to the correctness of the proclamation, for example, the discrepancy between the number of voters generated by the audit log and the physical count of the machines. This issue has to be resolved before any proclamation can be done. Other instances that have to be considered are those that have something to do with admin/processing of results. Would you agree that these can be considered pre-proclamation controversy?
Question on evidence. We need to consider the value of electronic evidence. SET, HRET, SC already have provisions in the rules as regards electronic evidence. Comelec may add/adopt.
All material generated by the machine is official. When it is stated that the electronic return is the primary and official copy, it only means that it is the one which shall be canvassed, but others are official as well. There might be questions raised when the electronic result will be different from the printed result. There should be procedure to address that: whether to dismiss the action or grant it.
Can electronic copy received by Comelec be used as basis to verify the correctness of the result being canvassed at the municipal level and under what procedure can that be resorted to? Commissioner Ferrer said this cannot be made a basis but it is the starting point in determining whether something fishy was done in the lower level. If there is a discrepancy with other returns, can the Comelec copy be subpoenaed?
The issue in post-election and pre-proclamation is custody of the document. What will happen after proclamation? Will there be manual recount? At what instance will manual recount be resorted to? There will be different standards between machine count and manual count and this is basically an important policy issue on the part of Comelec and Electoral Tribunals because machine and humans will appreciate votes this differently. For as long as the intent of the voter is clear, the human eye and mind will consider even if the machine will reject. There has to be a policy decision on how this will be treated. Revisit Loon case in 1999, which carries a dissent by J. Panganiban. You cannot use human count for machine readable ballots.
