SEMINAR ON ELECTION LAW FOR RTC JUDGES

Seminar objectives
Familiarize the judges with the Election Automation Law; Have a working knowledge of the processes involved in the Precinct Count Optical Scan (PCOS) Automated Election System (AES);

Understand the possible changes in the dynamics of election dispute resolution under the PCOS AES;
Differentiate between acceptable and unacceptable pleadings in election cases;

Session 1

THE ELECTION AUTOMATION LAW

Seminar on Election Law for RTC Judges

At the end of the session, the participants are expected to:

Be familiar with the Legal Framework of Philippine Elections; Be familiar with the Legal Framework of Election Automation (Rep. Act 9369, Rep. Act 8436; BP 881; Rep. Act 8046

Understand the rationale behind the automation of the May 2010 elections;

 Identify the key features of Rep. Act No. 9369 or the Election Automation Law; and Identify the possible sources of disputes in the implementation of the Election Automation Law.

Election includes
Registration of Voters Candidates and Political Parties Campaigns Campaign Finance Voting Counting Canvassing Certification or Proclamation of Winners Election Dispute Resolution Prosecution of Violations of Election Laws Election Management System

What is new in this Election?

Counting of Votes by Optical Scanning Machines Electronic Transmission of Results From Precinct to MBOC/CBOC From MBOC/CBOC to PBOC From PBOC to Comelec and Congress Electronic Consolidation of Results Digitized Results of Elections as basis for proclaiming winners All other aspects of election, SAME AS BEFORE

LEGAL FRAMEWORK OF PHILIPPINE ELECTIONS

The Constitution
Article II [sovereignty resides in the people] Article V [Suffrage] Article VI [Legislative] Article VII [Executive] Article IX-C [Comelec] Article X [Local Government]

International Agreements
UN Declaration on Human Rights
Article 21. (1) Everyone has the right to take part in the government of his country directly through freely chosen representatives .(3) The will of the people shall be the basis of the authority of government; this will shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures

UN International Covenant on Civil and Political Rights

Article 25 Every citizen shall have the right. 2. To vote and to be elected at genuine periodic elections which shall be by universal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

Major Election Statutes

BP Blg. 881 [1985] The Omnibus Election Code RA 6646 Electoral Reforms Law of 1987 RA 6735 Initiative and Referendum Law RA 7160 Local Government Code RA 7166 Synchronized Election Law RA 7941 Party List Election Law

Major Election Statutes

RA 8046 1995 Law on Computerized Elections and Pilot Test in ARMM RA 8189 Voter Registration Act of 1995 RA 8436 1997 Automated Election Law RA 9006 Fair Election Act RA 9189 The Overseas Absentee Voting Act of 2003 RA 9369 The Automated Election Law of 2007 Other Laws on Election
RAs 6679, 7647, 7887, 7890, 7904, 8045, 8173, 8295, 8746, 9164, 9340, etc.

Charter of LGUs

Jurisprudence
Court Decisions on Elections as well as the Decision of the various electoral tribunals

COMELEC Issuances
General Instructions (GI)
To the Board of Election Inspectors (BEI) To the Board of Canvassers (BOC) Other Instructions

Other Implementing Rules (On campaigning, campaign finance, clustering of precincts, registration of voters, etc.) COMELEC Rules of Procedure

Rules of Procedures of Electoral Tribunals

PET, SET, HRET Rules of Procedures SC Administrative Matter No. 07-04-15 (Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials)

LAWS ON AUTOMATED ELECTIONS

Past Laws on Automated Elections

PD 1296 1978 Election Code [Section 185 (j)]
Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose.

BP 881 The Omnibus Election Code [Section 52(j)]

Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices.

Past Election Laws .

RA 8046 Nationwide Demonstration and Pilot Test of a Computerized Election System in the March 1996 ARMM Elections
Use of Paper Ballot Optical Scanning/Mark Reader System Stand Alone Machine Audit Trail Centralized Count Implemented in the 1996 Regional Election in the ARMM

Past Election Laws

RA 8436 (before amendment by RA 9369) Appropriate Technology for Voting Electronic Device for Canvass Use of appropriate ballots Stand alone machine which can count votes Envisions Central Count Audit Trail For 1998, the system was intended to apply Nationwide but only for National Offices. In subsequent elections, COMELEC can implement automated election on a nationwide basis/

Past Election Laws.

RA 8436 cont.
Actually implemented only in the ARMM Loong vs. COMELEC, et. al, G.R. No. 133676, April 14, 1999 ITFP, et. al. vs. COMELEC, et. al. G.R. No. 159139. January 13, 2004 [Mega Pacific Case] Brillantes vs. COMELEC, G.R. 163193, June 14, 2004

Current Automated Election Laws

RA 8189 Voter Registration Act of 1995, which provides a Computerized Voters List RA 9369 New Automated Election Law passed in January 2007 Basically amended the entirety of RA 8436 Implemented in the August 11, 2008 ARMM Elections, using two systems, OMR and DRE

REP. ACT NO. 9369

Rep. Act No. 9369

Passed in January 2007 (5 months before the 2007 Elections) Amended RA 8436 [Sec. 1-30] Amended BP 881, RA 6646, RA 7166 [Secs. 31- 40] Primary Mandate is to authorize COMELEC to use automated election system, whether paper-based [OMR] or direct recording electronic system [DRE] Use of appropriate technology for voting, counting, consolidating, canvassing, and transmission of election result [Sec. 2] Covers voting up to transmission and consolidation of results

Principal Objectives of RA 9369

Ensure secrecy and sanctity of the ballot [Sec. 1] Ensure transparent and credible process [Sec. 1] Ensure fast and accurate results [Sec. 1] Ensure that results are reflective of the peoples will [Sec. 1]

Types of Automated Election System

Paper-Based Election System [Sec. 2]
a type of automated election system that uses paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count

 Direct Recording Electronic System [Sec. 2]

a type of automated election system that uses electronic ballots, records votes by means of a ballot display provided with a mechanical or electrooptical component that can be activated by the voter, processes data by means of computer programs, records voting data and ballot images, and transmits voting results electronically

Choosing the AES

Factors to consider in choosing a system
Most suitable or appropriate technology [Sec. 1 and 5] Demonstrated capability [Secs. 1 and 10] Situation in the area [Sec. 1] Funding Availability [Sec. 1]

Minimum requirement under the AES

Security against unauthorized access Accuracy in recording, reading, transmission and tabulation of votes Error recovery System integrity Voter Verified Paper Audit Trail Auditability An election management system Accessibility to illiterates and disabled voters

Minimum requirement under the AES (Section 7)

Vote tabulating program for election, referendum or plebiscite; Accurate ballot counters Data retention provision Provide for the safekeeping, storing and archiving of physical or paper resources used in the election process Utilize or generate official ballots as defined in the law Provide the voter a system of verification to find out whether or not the machine has registered their choice; and Configured access control for sensitive system data and functions.

Other Requirements under the AES

Secure transmission lines [Sec. 8] Continuity Plan or Back Up Plans [Sec. 11] Random Manual Audit [Sec. 24] Education of Stakeholders [Sec 27] Field Testing and Mock Elections [Sec. 9 and 12] Source Code Review [Sec. 12]

Basic Features of the AES

Ballots may be paper ballots or electronic ballots [Sec. 2] Official Ballots refer to paper ballots, whether printed or generated by machines [Sec. 2] Surnames of Candidates arranged alphabetically [Sec. 13] Fixed space on the ballot for signing and/authentication by the BEI Chair [Sec. 13] Printed either by the NPO or the BSP [Sec. 13] Must contain bar codes, holograms, etc as safe guards [Sec. 13]

Basic Features of the AES

Election Returns (ER) consist of printed and electronic copies [Sec. 2] 30 printed copies of ERs allocated to designated recipients, and an additional 30 copies can be requested [Sec. 19] Each copy to be signed and thumb marked by BEI members and watchers [Sec. 19] One copy to be posted near the polling place for 48 hours [Sec. 19] Electronic copy of ER must be digitally signed by the BEI and is the official source of election results being the one to be used for canvass and for proclamation of winners [Sec. 19]

Basic Features of the AES

Electronic transmission of results [Sec. 19]
To the Board of Canvassers To the Dominant Majority and Minority Parties To the accredited Citizens Arm To the Kapisanan ng mga Broadkaster sa Pilipinas

At least one member of the Board of Election Inspectors [BEI] must be Information Technology (IT) capable, as certified by the DOST [Sec. 3]

Basic Features of the AES

Canvassing at the Municipal, City, Provincial Level and at the Comelec to be done by consolidating electronically transmitted ERs and/or COCs [Sec. 20] Board of Canvassers to be supported by IT capable Personnel [Sec. 5] Winning local candidates are to be proclaimed using electronically transmitted ERs [Sec. 20]

Basic Features of the AES

Certificate of Canvass (COC) [Sec. 20]
Printed and Electronic Form 30 copies of COC prepared by Municipal and City BOCs are to be printed [Sec. 21] 14 copies of COC prepared for BOCs in Cities with two or more Districts and in Provinces are to be printed [Sec. 21] COC to be electronically transmitted to higher canvassing bodies Must be accompanied by Statement of Votes to be generated by the consolidating machines [Section 20]

The Electronic Copy is the source of official election results, in the sense that it is the one that will be canvassed at the higher canvassing bodies

Basic Features of the AES

Provincial Board of Canvassers, the City Board of Canvassers, (with constituent districts), and the COMELEC, will canvass results by consolidating electronically transmitted COCs from lower canvassing bodies, and proclaim the winners at that level [Sec. 20, 22] Congress, will open COCs and determine their authenticity and due execution [Sec. 23] pursuant to RA 7166 as supplemented and modified by RA 8792 [E-Commerce Act] for canvass of President and Vice President [Sec. 25]

Implementing the AES

Responsible Agencies/Committees
COMELEC
Principal Implementor of the Law Mandated to come up with Implementing Rules and Procedures (GIs) on Voting [Sec. 15], Closing of Polls [Sec. 16], Counting of Votes [Sec. 18], Canvassing and Consolidation of Election Results [Sec. 30]

Advisory Council recommend and assist COMELEC [Sec. 9] Technical Evaluation Committee certifies to the readiness of the System and its compliance with the minimum requirements of the law [Sec. 9] Steering Committee manager of the System

Steps in the Implementation of AES

Recommendation of the Advisory Council and Adoption of the System by the Comelec Preparation of the Specifications Bidding Awarding Roque, et al vs. COMELEC et. al., G.R. 188456, September 10, 2009 Manufacturing Source Code Review

Steps in the Implementation of AES

Stakeholders Education and Training to be held not later than six (6) months before election Testing and Mock Elections Certification by the Technical Evaluation Committee Release of Continuity Plan to be published and made available to parties not later than 15 days before elections Election day testing Actual Use in the Election Random Manual Audit Evaluation and Assessment

Source Code.
Human Readable Instructions on what the machines will do Sec 12 - Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof Technical Evaluation Committee Certification
as to the successful completion of a source code review that the source code is kept in escrow with the Bangko Sentral ng Pilipinas; that the source code reviewed is one and the same as that used by the equipment

Continuity Plan
Section 11- Continuity plan in case of a systems breakdown Activation in the presence of representatives of political parties and citizens arm of the Commission All political parties and party-list groups shall be furnished copies of said continuity plan Publication in at least two newspapers of national circulation Posting at the COMELEC website at least fifteen (15) days prior to the electoral activity concerned.

Random Manual Audit

Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error.

Purpose is to validate machine count by a manual count

First Penal Provisions (Sec. 28)

Utilizing without authorization, tampering with, damaging, destroying or stealing: Official ballots, election returns, and certificates of canvass of votes used in the system; and Electronic devices or their components, peripherals or supplies used in the AES such as counting machines, memory packs/diskettes, memory pack receivers and computer sets; 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; 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;

First Penal Provisions (Sec. 28)

Refusal of the citizens' arm to present for perusal its copy of election returns to the board of canvassers; Presentation by the citizens' arm of tampered or spurious election returns; Refusal or failure to provide the dominant majority and dominant minority parties or the citizens' arm their copy of election returns; and 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. Punishable by 8 years and 1 day to 12 years, no parole, perpetual disqualification from holding public office, both appointive and elective

Manual Election under RA 9369

Reading of votes for national candidates before going to local candidates [Section 32] Election Returns, 8 hand-prepared copies [Sec. 33], 30 printed copies [Sec. 32] Posting of the 8th copy of ER for National Candidates, 2nd copy of the ER for Local Candidates [Sec. 33] 30 copies of ERs are to be produced by a data capturing device and printed at the polling place [Sec. 32] Transfer of Polling Place, when deemed necessary, must be endorsed by majority of watchers [Sec. 35]

Manual Election under RA 9369

During canvassing, the BOCs are required to project on a wall, the ER or COC being canvassed [Sec. 39] Pre-proclamation controversy occurs in the National Canvass in Congress for President and Vice-President in case of any discrepancy, incompleteness, erasure or alteration in the COCs and in the supporting Statement of Votes [Sec. 37] The Municipal City District and Provincial Board of Canvassers should also produce 30 printed copies of the COCs and Statement of Votes aside from those prepared by hand, using a Data Capturing Device and a printer at the canvassing venue [Sec. 39] Digital Image of the COCs and the SOVs are to be transmitted using secured transmission with authentication features to the secured tabulation system of Comelec . [Sec. 39]

Second Penal Provisions Common to Both Manual and Automated Election

Crime of Electoral Sabotage Defined [Sec. 42]
For a national position, when it is made to appear by dagdag-bawas, or failure to credit votes, that a loser is a winner Regardless of the position, when dagdag bawas is done in a single document, and in transposing election results from one document to the other, and it involves alteration of 5,000 or more votes In any case when the alteration involves 10,000 or more votes. Punishable by Life Imprisonment

Jurisdiction to conduct preliminary investigation and prosecution of election offenses, concurrent to both COMELEC and other prosecutorial arm of government.

Absentee Voting in the Philippines

Overseas Absentee Voting Local Absentee Voting

Overseas Absentee Voting

Filipino citizens who are:
abroad or will be abroad on election day At least 18 years of age on the day of the elections Intending to vote Not otherwise disqualified by law

Overseas Absentee Voters can vote only for National Positions (President, Vice President, Senators and Party List)

Local Absentee Voters

Members of the Armed Forces of the Philippines Members of the Philippine National Police Government Employees and Teachers who will perform poll functions in May 10, 2010 elections

Local Absentee Voters can vote only for National Positions (President, Vice President, Senators and Party List)

Detainee Voting
Comelec Resolution No. 8811 Detainee: A person who is: - confined in jail, formally charged for any crime/s and
is awaiting trial; or - Serving a sentence of imprisonment for less than one (1) year; or - Whose convicting of a crime involving disloyalty to a duly constituted government such as rebellion, sedition, violation of the firearms law or any crimes against national security is on appeal

 May be thru special voting place inside jail (if at least 100 registered detainee voters May be thru escorted voting

Thank You!!