Resolution No. 9104

WHEREAS, on March 22, 2010, the Commission on Elections promulgated Resolution No. 8804, entitled and known as "Comelec Rules of Procedure on Disputes in an Automated Election System in connection with the May 10, 2010 Elections";

WHEREAS, numerous election protest cases were filed with the Commission on Elections in the aftermath of the May 10, 2010 Automated National and Local Elections, seeking recount of the ballots counted and digitally recorded by the Precinct Count Optical Scan (PCOS) machines, in accordance with Rule 15 of Comelec Resolution No. 8804;

WHEREAS, there is a need to formulate rules which would govern the proceedings for the recount of ballots involved in said election protest cases for the proper implementation of the procedural rules explicitly detailed in Comelec Resolution No. 8804;

NOW THEREFORE, in view of the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to consider and adopt the following Rules of Procedure for the recount of ballots subject of election protest cases filed with the Commission on Elections in connection with the May 10, 2010 National and Local Elections pursuant to Rule 15 of Comelec Resolution No. 8804;

Section 1. Title. - This resolution shall be known and called as the "Rules of Procedure for the Recount of Ballots subject of Election Protest Cases filed with the Commission on Elections in connection with the May 10, 2010 National and Local Elections pursuant to Rule 15 of Comelec Resolution No. 8804."

Section 2. Applicability. - It shall apply to all election protest cases filed before the Commission in connection with the May 10, 2010 Automated National and Local Elections, where recounting is involved.

Section 3. Order of Priority of Protested/Counter-Protested Precincts. - The protestant, in case of protest, and the protestee, in case of counter-protest, shall submit in writing to the Over-all Chairman of the Recount Committees the order of priority of clustered precincts in the recounting of contested ballots.

Section 4. Project of Precincts. - The Over-all Chairman of the Recount Committees will request in writing for a copy of the Project of Precincts covering the clustered precincts subject of protest/counter-protest from the Election and Barangay Affairs Department (EBAD) for use as reference in the recount of ballots.

Section 5. Compact Flash (CF) Card Used on May 10, 2010 Automated National and Local Elections. - The Over-all Chairman of the Recount Committees shall request from the Election Records and Statistics Department (ERSD) the compact flash (CF) cards corresponding to the protested/counter-protested clustered precincts used during the May 10, 2010 Automated National and Local Elections (hereinafter referred to as the "May 10, 2010 CF card").

Section 6. When Ballot Boxes and Elections Documents Are Brought Before The Commission. - Where any of the ballot boxes, ballots, election returns, election documents or paraphernalia subject of a protest or counter-protest are also involved in election contests before other fora, such as the Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET), and the House of Representatives Electoral Tribunal (HRET), which, under COMELEC Resolution No. 2812 dated 17 October 1995, have preferential right over the custody and recount of ballots involved in simultaneous protests, the Commission shall make the appropriate coordination and request with the tribunal involved as to temporary prior custody of ballot boxes and recount of ballots and other documents and storage devices, or the synchronization of such recount of ballots.

The expenses necessary and incidental to the bringing of the ballot boxes, election documents, and devices shall be shouldered and promptly paid by the protestant and the counter-protestant, if any, in proportion to the precincts involved. The expenses necessary and incidental to the return of the ballot boxes, election documents, and storage devices to their original custodians or the proper tribunal after the termination of the case shall be shared proportionately by the protestant and protestee based on the number of precincts respectively contested by them.

Section 7. Custody and Sealing of the PCOS Machine. - The Chairman of the Recount Committee shall be the custodian of the PCOS machine for the duration of the recount and shall be responsible therefor. The Chairman shall ensure that the PCOS machine's compartment for the back-up CF card shall be appropriately sealed before the commencement of the recount and shall remain sealed throughout the proceedings.

Section 8. Determination of the Integrity of the Ballot Box and Ballots. - Before opening the ballot box of the clustered precinct to be recounted, the ballot box custodian of the Recount Committee shall note the condition of the ballot box as well as that of the locks or locking mechanism, and record said conditions in the Recount Report.

In the event that the Recount Committee determines that the integrity of the ballot box and the ballots was not preserved, as when there is proof of tampering or substitution, the Recount Committee shall record its observation in the Recount Report and set aside the ballot box and ballots of the said protested or counter-protested clustered precinct. It shall then be referred to the Division of the Commission, which will finally decide as to whether the integrity of the ballot box and the ballots had indeed been compromised. If the Division finds that the integrity of the ballot box and the ballots was compromised, it shall order the Recount Committee to utilize the picture image files corresponding to the physical ballots contained in the tampered ballot box for recount purposes.

Section 9. Opening of Ballot Box, Inventory of the Contents Thereof. - If the Recount Committee determines that the integrity of the ballot box and the locks or locking mechanism was preserved, the ballot box shall then be opened and the contents thereof shall be taken out. The typist of the Recount Committee shall make an inventory of the contents and record the following information in the Recount Report:

(a) clustered precinct number and the precinct number/s composing the cluster;

(b) date, time, and place of recount (as set in the Preliminary Conference Order);

(c) the serial numbers and condition of the following:

(c.1) ballot boxes;
(c.2) padlocks and security seals;
(c.3) envelope and paper seal for the Minutes of Voting and Counting of Votes;
(c.4) envelope and paper seal for the rejected ballots;
(c.5) envelope containing election returns; and
(c.6) all other contents found in the ballot box.

(d) entries in the Minutes of Voting and Counting of Votes prepared by the Board of Election Inspectors, particularly:

(d.1) number of registered voters;
(d.2) number of voters who actually voted;
(d.3) number of official ballots, together with the serial numbers allocated to and received by said precinct in the elections;
(d.4) number of ballots actually used in the elections, indicating the serial numbers of said ballots;
(d.5) number of unused ballots, together with their serial numbers; and
(d.6) number of rejected ballots found inside the ballot box.

(e) number of votes received by each party as recorded in the election returns copy for the ballot box.

In addition thereto, the Chairman of the Recount Committee shall determine if the integrity of the May 10, 2010 CF Card, iButton and password was preserved. The typist shall record the condition and serial numbers of these election paraphernalia and the paper seal used.

Section 10. Authentication of Ballots. - To facilitate the actual recount of the ballots, the Overall-Chairman shall designate at least one personnel each from the Information Technology Department (ITD) and ERSD as member of the Recount Committee.

1. The ITD personnel shall:
1. configure a new CF card for every contested/counter-protested clustered precinct (hereinafter referred to as the "recount CF card"). For purposes of these rules, "CONFIGURE" shall mean installing specific precinct information to a new CF card, such as voting jurisdiction, candidates' information, number of seats, party affiliation, and positions that will be used for the scanning of ballots by the PCOS machine during the recount proceedings. Configuration of recount CF cards shall be performed at the ITD, COMELEC Main Office and with prior notice to the parties;
2. copy the picture image files of ballots and results from the May 10, 2010 CF card to a new CF card (hereinafter referred to as the "ballot image CF card"). Copying of picture image files shall be performed at the ITD, COMELEC Main Office and with prior notice to the parties;
3. prepare the iButton and password for a protested/counter-protested precinct which should be transmitted in a sealed envelope with proper endorsement documentation; and
4. set up the PCOS machine and the laptop which shall be used to view the picture image files of ballots and results contained in the ballot image CF card. The ITD personnel designated as member of the Recount Committee shall be responsible for the operation of the PCOS machine during the recount proceedings.
2. The ERSD personnel shall:
1. provide the May 10, 2010 CF card containing the picture image files of ballots and results used during the May 10, 2010 elections. The ERSD personnel designated as member of the Recount Committee shall at all times maintain custody of the May 10, 2010 CF card and shall be responsible therefor; and
2. if the election returns copy for the ballot box is not found inside the ballot box, provide a certified true copy of the election returns for the protested/counter-protested precinct.

Section 11. Recount Procedure. - The Recount Committee shall be guided by the following procedure in the validation and recount of the ballots:

1. Copying of picture image files of ballots and results from the May 10, 2010 CF card to the ballot image CF card:
1. for the purpose of recounting ballots, one ballot image CF card shall be used for each protested/counter-protested precinct. The May 10, 2010 CF card shall in no way be used in the recounting of ballots. Only the ballot image CF card shall be utilized in viewing picture image files of ballots and results; and
2. the copying of the picture image files of ballots and results from the May 10, 2010 CF card to the ballot image CF card shall be done by the ITD personnel with prior notice to the parties.
2. Validation and Recount:
1. (a) the recorder of the Recount Committee shall physically count the ballots found inside the ballot box and compare the physical count to the total number of ballots recorded on the election returns. Ballots that were rejected by the PCOS machine in the May 10, 2010 elections shall be set aside and shall not be reconsidered in the recount proceedings;

(b) if the total number of physical ballots does not match the total number recorded in the election returns, the recorder of the Recount Committee shall compare the total number of physical ballots against the total number of picture image files of ballots found in the ballot image CF card;

(c) if there is still a discrepancy between the total number of picture image files of ballots in the ballot image CF card and the physical count of ballots, the total number of picture image files of ballots in the ballot image CF card shall prevail; and

(d) if there are physical ballots that have no corresponding picture images, such physical ballots shall not be included in the recount proceedings. On the other hand, if there are picture images with no corresponding physical ballots, the picture image files shall still be included in the recount proceedings.

2. (a) if the physical number of ballots matches the total number of ballots recorded in the election returns, validate the authenticity of the ballots with the use of the PCOS machine;

(b) the ITD personnel shall open the PCOS machine, request the Chairman of Recount Committee to enter password, and print initialization report showing zero votes;

(c) the recorder of the Recount Committee shall feed the physical ballots in the PCOS machine which will contain to the recount CF card;

(d) after all the ballots have been scanned, the ITD personnel generate a new set of election returns by selecting the "close voting" option in the PCOS machine;

(e) the chairman of the Recount Committee shall compare the recently-generated election returns with the election returns generated during the May 10, 2010 elections and show the same to the representatives of the protestant and protestee;

(f) if the results are the same, no further action shall be performed and the election protest or counter-protest shall be dismissed; and

(g) if the results of the comparison between the recently-generated election returns and the May 10, 2010 election returns do not match, the recorder of the Recount Committee shall one by one compare the ballots that were fed to the PCOS machine to its corresponding picture image in the ballot image CF card to determine the reason for the discrepancy.

3. To validate the physical ballots against the picture image files stored in the ballot image CF card, sequentially open the picture image files. The typist shall then print all the picture images and the recorder shall compare the barcode located at the bottom-right of the ballot's picture image against the barcode in the physical ballot. Once the picture image matching the physical ballot has been found, the recorder shall check the results contained at the bottom-right of the picture image. The results contained at the bottom-right of the picture image should match the shaded ovals on the physical ballot. If the results do not match, a presumption arises that the ballot box or ballots were tampered with or has been compromised. In such a case, the recorder must compare the physical ballots oval by oval against the picture image to see where the discrepancy lies. In case of such a discrepancy, the picture image of the ballot and the results shown at the bottom-right of the picture image shall prevail; and
4. In case a ballot accepted by the PCOS machine on May 10, 2010 is rejected by the PCOS machine during the recount, the recorder of the Recount Committee shall re-feed the ballot into the PCOS machine in four (4) different orientations. If it is still rejected, the rejected ballot should be fed into the contingency PCOS machine. If some ballots were already scanned and the PCOS machine is subsequently replaced with the contingency PCOS machine, the ballot image CF card must first be re-zeroed and all the previous ballots shall be re-scanned using the contingency PCOS machine.

All incidents during the recount proceedings should be recorded by the typist of the Recount Committee in the Recount Report.

3. For the recount of the ballots, the following shall be required per Recount Committee:
1. one (1) PCOS machine per Recount Committee, the lease for which shall be paid for by the parties, with the May 10, 2010 election digital certificate installed (with another PCOS machine on stand-by as contingency);
2. two (2) or more thermal paper rolls (the number of rolls will depend on the number of copies of the election returns to be printed);
3. one (1) recount CF card;
4. the iButton actually used in the protested/counter-protested clustered precinct during the May 10, 2010 elections;
5. the ballots used during the May 10, 2010 elections for the protested/counter-protested clustered precinct;
6. election returns generated during the May 10, 2010 elections for the protested/counter-protested clustered precinct which are found inside the ballot box;
7. one (1) ballot image CF card which will contain the copied picture image files of ballots and results;
8. one (1) laptop to review the picture images;
9. one printer and the required number of bond paper for the printing of picture images of ballots; and
10. one (1) CF card reader.

Section 12. Completion of Recount. - After all the physical ballots from one (1) ballot box has been scanned and counted by the PCOS machine, the Recount Committee shall secure the contested ballots and complete the Recount Report which shall be submitted to the Commission.

Section 13. Amendatory Provision. - This rules shall amend Section 6, letters (c), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), and (q) of Rule 15, Comelec Resolution No. 8804 dated 22 March 2010.

Section 14. Effectivity. - This Resolution shall take effect after seven (7) days from its publication in two (2) daily newspapers of general circulation in the Philippines.

Section 15. Dissemination. - Let the Education and Information Department (EID), this Commission, cause the publication of this Resolution in two (2) daily newspapers of general circulation in the Philippines.

SO ORDERED.