Resolution No. 9765

WHEREAS, Judge Arnelo C. Mesa of the Regional Trial Court, 4th Judicial Region, Branch 65, Infanta Quezon, through letter dated July 19, 2013, in seeking clarification of the Commission's guidelines that a PCOS machine need not be produced before the Regional Trial Courts for use in election protest cases, opined that a PCOS machine is actually required in the revision/recount and appreciation of ballots because - citing the last sentence of Section 6 (h), Rule 10 of A.M. No. 10-4-1-SC, entitled "2010 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal Officials" - "[a]ny issue as to whether a certain mark or shade is within the threshold shall be determined by using the PCOS machine, not by human determination.";

WHEREAS, the above rule reads, in full, as follows:

"(h) In looking at the shades or marks used to register votes, the revision committee shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting technicalities aside. Furthermore, the votes are presumed to have been made by the voter and shall be considered unless reasons exist to justify their rejection. However, marks or shades that are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by using the PCOS machine, not by human determination.";

WHEREAS, for the May 10, 2010 National and Local Elections, the prescribed 50% threshold was significant because: First, the PCOS was designed to distinguish between a valid mark, an ambiguous mark, and no mark at all. If a shaded oval failed to reach the required threshold, the PCOS considered such shade as an ambiguous mark. If the ambiguous mark was not rectified by the voter, the entire ballot was rejected by the PCOS; and Second, in election protest cases before the courts involving elective municipal officials, votes reflected in ballots rejected by the PCOS were being claimed by the contending parties in their favor. Thus, crediting such votes in favor of a party first required that the marks or shades are valid, i.e., within the prescribed threshold, as prescribed in Section 6 (h), Rule 10 of A.M. No. 10-4-1-SC.

WHEREAS, for the May 13, 2013 National and Local Elections, the prescribed threshold is not significant because: First, the PCOS no longer distinguished whether a mark or shade on the ballot is ambiguous. This was to prevent the disenfranchisement of the voter caused by the rejection by the PCOS only distinguishes a valid mark from no mark at all; and Second, since the PCOS only distinguishes a valid mark from no mark at all, the intent of the voter, and whether or not such intent was reflected in the election returns, may be determined not by re-feeding the ballots into the PCOS - which will only print the same election returns as those generated on election day - but by printing the ballot digital images, and comparing said images with the election returns and the contested ballots;

WHEREAS, in his same letter, Judge Mesa inquired as to "who would provide the device, e.g. UV lamp, that can be used to determine the genuineness and authenticity of the contested ballot, and as to who or what office would certify that said UV lamp is capable or has the capability of performing the desired authentication requirement on the contested ballots [..]";

WHEREAS, the authority to use, and the certification on the capability of, UV lamps to authenticate contested ballots have been clearly set in paragraph 1 (b) of the dispositive portion of COMELEC Resolution No. 9723, dated July 1, 2013, which states that "[t]he use of any commercially-available hand held Ultra-Violet (UV) lamp is hereby authorized, and certified to be capable of detecting UV marks, to determine the genuineness and authenticity of contested ballots." (Underscoring supplied);

WHEREAS, since Section 6 (e), Rule 10 of A.M. No. 10-4-1-SC prescribes, among other things, that "[p]rior to the actual revision, the revision committee must authenticate each and every ballot [...]", and all rules in election protest cases mandate that the expenses for examination of ballots shall be for the account of the party requesting such examination, the Protestant and the Protestee - being the parties who need to have the contested ballots authenticated before actual revision may proceed - are obligated to provide the required ultra-violet (UV) lamp, and shoulder the expenses for such equipment.

NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Republic Act No. 9369, and other election laws, RESOLVED, as it hereby RESOLVES, as follows:

1. That, as reiteration, the PCOS machines, including CCS laptops and electronic data storage devices, shall not be produced before the Regional Trial Courts because the genuineness of the official ballots, as well as, the precinct results, certificates of canvass and statements of votes, may be determined by other accurate means of authentication;
2. That since the issue as to whether or not a certain mark or shade falls within the threshold is irrelevant to election protest cases in connection the May 13, 2013 elections, the intent of the voter, as reflected in the mark or shade in the oval, is a matter that may be ascertained not through the use of a PCOS machine, but through human determination by comparing the ballot digital images with the election returns and contested ballots;
3. That, as further reiteration, the use of any commercially-available hand held Ultra-Violet (UV) lamp is hereby authorized, and certified as capable of detecting UV marks to determine the genuineness and authenticity of contested ballots; and
4. That the Protestant, in case of protested ballots, and the Protestee, in case of counter-protested ballots, shall provide the required ultra-violet (UV) lamp, and shoulder the expenses for such equipment.

The Education and Information Department shall cause the publication of this Resolution in two (2) newspapers of general circulation in the Philippines.

Let the Executive Director and Election Contests Adjudication Department implement this Resolution.

SO ORDERED.