Pre-Proclamation Controversy & Election Protest

Pre-Proclamation Controversy
What is a Pre-proclamation controversy?

A Pre-proclamation controversy refers to any question pertaining to or affecting the
proceedings of the board of canvassers (BOC). It maybe raised by any candidate, or
any registered political party, or coalition of political parties before the board or directly
with the Commission (Section 241, Omnibus Election Code).
What is the Purpose of Pre-proclamation controversy?

The purpose of a Pre-proclamation controversy is to ascertain the winners in the
election on the basis of the election returns duly authenticated by the board of
inspectors and admitted by the board of canvassers (Abella v. Larrazabal,180 SCRA
506[1989]).
What are the grounds for a Pre-proclamation Controversy?

The grounds for Pre-proclamation controversy are the following:
Illegal composition or proceedings of the Board of Canvassers;
The canvassed returns are incomplete, contain material defects, appear to be tampered
with or falsified, or contain discrepancies in the same returns or in authentic copies
thereof;
The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and,
When substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affect the standing of the aggrieved candidate or
candidates.
In the case of Lucman v. COMELEC (462 SCRA 299 [2005]), the Supreme Court explained that a pre-
proclamation controversy is limited to an examination of the election returns on their face. “…..the
objections initially raised by private respondent before the Municipal Board of Canvassers were proper in
a pre-proclamation controversy, i.e., the election returns is obviously manufactured and/or falsified, it is
not authentic, it contains alterations. However, in his appeal to the COMELEC, he further alleged that the
elections held in the precincts clustered in the Pooni Lomabao Central Elementary were tainted with
massive election irregularities. According to private respondent, there were “massive substitution of
voters, snatching of ballots from the voters by people identified with the Lucman who filled them up
against the will of the voters, force or coercion, threats, intimidation, casting of votes by double
registrants in the same precincts (double entry), and flying voters …” Private respondent also alleged that
the counting of votes on May 11, 2004, were not prepared simultaneously with the appreciation of the
ballots/ counting of votes, in violation of Section 44 of COMELEC Resolution No. 6667 (March 16,
2004). Also, private respondent’s watchers were threatened by petitioner’s watchers, forcing them to leave
the counting room, and that the Board of Election Inspectors merely copied the entries on the tally boards
and records of votes made by petitioner’s watchers. Finally, private respondent alleged that the denial to
his objections to the contested election returns were not made by the Municipal Board of Canvassers in
the prescribed form, and that despite his manifestation that he will appeal the Board’s ruling on the
returns, it proceeded with petitioner’s proclamation.
Obviously, the foregoing allegations pertain not only to the preparation, transmission, receipt, custody and
appreciation of the election returns, but to the conduct of the elections as well. Pre-proclamation
controversies are limited to challenges directed against the Board of Canvassers and proceedings before
said Board relating to particular election returns to which private respondent should have made specific
verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an
examination of the election returns on their face. As a rule, the COMELEC is limited to an examination of
the election returns on their face. It is beyond the COMELEC’s jurisdiction to go beyond the face of the
returns or investigate election irregularities.”
The Supreme Court Explains: Grounds for Pre-proclamation Controversy

For May 10, 2010 elections, COMELEC has restricted the grounds for pre-proclamation
controversies, as follows: (a) Illegal composition of the BOC; and (b) Illegal proceedings
of the BOC (COMELEC Resolution 8804, Rule 3, Section 1).
When is there illegal composition of the Board of Canvassers?

There is illegal composition of the BOC when, among other similar circumstances, any
of the members do not possess legal qualifications and appointments. The information
technology capable person required to assist the BOC by Republic Act No. 9369 shall
be included as among those whose lack of qualifications may be questioned
(COMELEC Resolution 8804, Rule 4, Section 1).
Pre-Proclamation Controversy
When is there illegal proceedings of the Board of Canvassers?
There is illegal proceedings of the BOC when the canvassing is a sham or mere
ceremony, the results of which are pre-determined and manipulated as when any of the
following circumstances are present:
1. precipitate canvassing;
2. terrorism;
3. lack of sufficient notice to the members of the BOC’s;
4. Improper venue
(COMELEC Resolution 8804, Rule 4, Section 2)
In Bautista v. COMELEC (G. R. No. 78994, March 11, 1988): the Supreme Court ruled:
“The scope of pre-proclamation controversy is limited to the issues enumerated under Sec. 243 of the
Omnibus Election Code. The enumeration therein of the issues that may be raised in pre-proclamation
controversy, is restrictive and exclusive. In the absence of any clear showing or proof that the election
returns canvassed are incomplete or contain material defects (Sec. 234), appear to have been tampered
with, falsified or prepared under duress (Sec. 235) and/or contain discrepancies in the votes credited to
any candidate, the difference of which affects the result of the election (Sec. 236), which are the only
instances where a pre-proclamation recount may be resorted to, granted the preservation of the integrity
of the ballot box and its contents, Sanchez’ petition must fail. The complete election returns whose
authenticity is not in question, must be prima facie considered, valid for the purpose of canvassing the
same and proclamation of the winning candidates.
To expand the issues beyond those enumerated under Sec. 243 and allow a recount/re-appreciation of
votes in every instance where a claim of mis-declaration of stray votes is made would open the floodgates
to such claims and paralyze canvass and proclamation proceedings, given the propensity of the losers to
demand a recount. The law and public policy mandate that all pre-proclamation controversies shall be
heard summarily by the Commission after due notice and hearing and just as summarily decided. (Sec.
246, Omnibus Election Code).”
The Supreme Court Speaks: Grounds for Pre-proclamation Controversy are Decided Summarily
Quick Guide on Pre-Proclamation Controversy
& Election Protest
Where and how must a pre-proclamation controversy be raised?
Questions affecting the composition or proceedings of the BOC may be initiated in the
BOC or directly with the Commission, with a verified petition, clearly stating the specific
ground/s for the illegality of the composition and/or proceedings of the board
When does one file a petition for pre-proclamation controversy?

The petition questioning the illegality, or the composition and/or proceedings of the BOC
shall be filed immediately when the BOC begins to act as such is objected to, if it comes
after the canvassing of the Board, or immediately when the proceedings become illegal
Which body has jurisdiction over pre-proclamation controversies?

COMELEC has exclusive jurisdiction over pre-proclamation controversies arising from
national, regional and local elections (COMELEC Resolution 8804, Rule 3, Section 2).
What are the procedures for a pre-proclamation controversy on the ground of illegal
composition and illegal proceedings of Board of Canvassers ?
In case the petition is filed before the BOC: Upon receipt of the verified petition, the
BOC shall immediately announce the fact of the filing of said petition and the ground/s
raised therein. The BOC shall immediately deliberate on the petition, and within a period
of twenty-four (24) hours, make a prompt resolution thereon, which resolution shall be
reduced into writing.
Should the BOC decide in favor of the petition, it shall immediately inform the
Commission of its resolution. Thereafter, the Commission shall make the appropriate
action thereon. In no case shall the receipt by the BOC of the electronically transmitted
precinct, municipal, city, or provincial results, be suspended by the filing of said petition.
The petitioner may appeal an adverse resolution by the BOC to the COMELEC, by
notifying the BOC of his or her intent to appeal, through a verbal, and a written and
verified Notice of Appeal. The notice on the BOC shall not suspend the formal
proclamation of the official results of the election, until the final resolution of the appeal.
Within forty-eight (48) hours from such notice to the BOC, the petitioner shall submit
before the Board a Memorandum on Appeal stating the reasons why the resolution
being questioned is erroneous and should be reversed.
Upon receipt by the BOC of the petitioner’s memorandum on appeal, the Board shall
forward the entire records of the petition at the expense of the petitioner.
Upon receipt of the records herein referred to, the petition shall be docketed by the
Clerk of Commission and submitted to the COMELEC en banc for consideration and
decision.
Within five (5) days therefrom the COMELEC en banc shall render its decision on the
appeal. If filed directly with the Commission, the petition shall be heard by the
COMELEC en banc under the following procedures.
Upon receipt of the petition by the COMELEC, the Clerk of the Commission shall docket
the same and forthwith send summons to the BOC concerned with an order directing it
to submit, through the fastest verifiable means available, its answer within forty eight
(48) hours.
The COMELEC en banc shall resolve the petition within five (5) days from the filing of
the answer, or upon the expiration of the period to file the same (COMELEC Resolution
8804, Rule 4, Section 5).
What is the remedy if the illegal proceedings of the BOC is discovered after Proclamation?
If the illegality of the proceedings of the BOC is discovered after the official proclamation
of the supposed results, a verified petition to annul the proclamation may be filed before
COMELEC within ten (10) days after the day of proclamation. Upon receipt of the
verified petition, the Clerk of the Commission shall have the same docketed and
forthwith issue summons to the parties to be affected by the petition, with a directive for
the latter to file their answer within five (5) days from receipt.
Thereafter the case shall be deemed submitted for resolution, which shall not be later
seven (7) days from receipt of the answer (COMELEC Resolution 8804, Rule 4, Section 6).
What are the rights of political parties and candidates before the Board of Canvassers in
pre-proclamation cases?
All registered political parties, organizations, or coalitions of political parties, and
accredited citizens’ arms, and candidates, have the right to be present and to be
represented by counsel during the canvass of election returns, or certificates of
canvass.
Only one counsel may argue for each registered political party, organization, or coalition
of political parties, accredited citizens’ arm or candidate. No dilatory action shall be
allowed by the BOC. It may impose time limits for oral arguments.
All registered political parties, organizations, or coalitions of political parties, and
candidates, are entitled to obtain a copy of the Statement of Votes per precinct and a
copy of the certificate of canvass duly authenticated by the BOC (COMELEC Resolution
8804, Rule 3, Section 3).
Can a pre-proclamation controversy subsist even after the start of the term of office of the
position contested?
No. All pre-proclamation cases pending before the COMELEC shall be deemed
terminated at the beginning of the term of the office involved and the rulings of the
board of canvassers concerned deemed affirmed. This is without prejudice to the filing
of regular election protest by aggrieved party.
Election Protest
Election Protest
What is an Election Protest?

An election protest is a contest between the defeated and winning candidates on the
ground of frauds and irregularities in the casting and counting of the ballots, or in the
preparation of the returns. It raises the question of who actually obtained the plurality of
the legal votes and therefore is entitled to hold the office (Samad v. Comelec 224 SCRA
631 [1993]).
What is the purpose of an Election Protest?

The purpose of an election protest is to ascertain whether the candidate proclaimed
elected by the board of canvassers is really the lawful choice of the electorate (De
Castro vs. Ginete, 27 SCRA 623 [1969]).
What are the grounds for an Election Protest?

The following are the grounds for filing an Election Protest:
1. Fraud
2. Terrorism
3. Irregularities; or
4. Illegal acts, committed before, during or after the casting and counting of votes
Ututalum v. COMELEC (G. R. No. 84843-44, January 22, 1990):

“That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may
have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation
controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is
an election protest”.
Espaldon v. COMELEC (G.R. No. L-78987, 25 August 1987):
Padded voters’ list, massive fraud, and terrorism are clearly not among the issues that may be raised in a
pre-proclamation controversy. They are proper grounds for an election protest.
Controversy
Who may file an election protest?
According to the Omnibus Election Code (BP Blg. 881), any candidate who has duly
filed a certificate of candidacy and has been voted for the same office may file an
election protest against the candidate proclaimed elected. However, as per COMELEC
Resolution No. 8804, only the candidate who received the second or third highest
number of votes (in a single slot position) or, was among the next four candidates (in a
multi-slot position) following the last ranked winner duly proclaimed, may file an election
protest (Rule 6, Section 2).
Bautista v. COMELEC (G. R. No. 78994, March 10, 1988):

The scope of pre-proclamation controversy is limited to the issues enumerated under Section 243 of the
Omnibus Election Code. The enumeration therein of the issues that may be raised in a pre-proclamation
controversy is restrictive and exclusive.
GAD v. COMELEC (G.R. No. 78302, May 26, 1987):
“Such irregularities as fraud, vote-buying and terrorism are proper ground in an election contest but may
not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the
(electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be
carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry
fraud and terrorism”
The Supreme Court Speaks: Who is the proper party to file an election protest?
In POE, JR. vs. MACAPAGAL-ARROYO (P.E.T. CASE No. 002 March 29, 2005) the Supreme Court
ruled that the widow cannot substitute/intervene for the protestant who died during the pendency of the
latter’s protest case.
“The fundamental rule applicable in a presidential election protest is Rule 14 of the PET (Presidential
Electoral Tribunal) Rules. It provides Rule 14. Election Protest.–Only the registered candidate for
President or for Vice-President of the Philippines who received the second or third highest number of
votes may contest the election of the President or the Vice-President, as the case may be, by filing a
verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner.
Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this express
enumeration, the rule makers have in effect determined the real parties in interest concerning an ongoing
election contest. It envisioned a scenario where, if the declared winner had not been truly voted upon by
the electorate, the candidate who received that 2nd or the 3rd highest number of votes would be the
legitimate beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for the
analogous and suppletory application of the Rules of Court, decisions of the Supreme Court, and the
decisions of the electoral tribunals.
Rule 3, Section 16 is the rule on substitution in the Rules of Court. This rule allows substitution by a legal
representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to appear
before this Tribunal as the legal representative/substitute of the late protestant prescribed by said Section
16. However, in our application of this rule to an election contest, we have every time ruled that a public
office is personal to the public officer and not a property transmissible to the heirs upon death. Thus, we
consistently rejected substitution by the widow or the heirs in election contests where the protestant dies
during the pendency of the protest. In Vda. de De Mesa v. Mencias, we recognized substitution upon the
death of the protestee but denied substitution by the widow or heirs since they are not the real parties in
interest. Similarly, in the later case of De la Victoria v. Commission on Elections, we struck down the
claim of the surviving spouse and children of the protestee to the contested office for the same reason.
Even in analogous cases before other electoral tribunals, involving substitution by the widow of a
deceased protestant, in cases where the widow is not a real party in interest, we denied substitution by the
wife or heirs. This is not to say that death of the protestant necessarily abates the pending action. We have
held as early as Vda. de De Mesa (1966) that while the right to a public office is personal and exclusive to
the public officer, an election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue the protest
proceedings. Hence, we have allowed substitution and intervention but only by a real party in interest. A
real party in interest is the party who would be benefited or injured by the judgment, and the party who is
entitled to the avails of the suit. In Vda. de De Mesa v. Mencias and Lomugdang v. Javier, we permitted
substitution by the vice-mayor since the vice-mayor is a real party in interest considering that if the
protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of the mayor that
becomes vacant if the one duly elected cannot assume office. In contrast, herein movant/intervenor, Mrs.
FPJ, herself denies any claim to the august office of President. Thus, given the circumstances of this case,
we can conclude that protestant’s widow is not a real party in interest to this election protest.”
Is manual recount of the votes allowed under the Precinct Count Optical Scan (POCS
Automated Election System?
Yes. According to COMELEC Resolution No. 8804, recount of votes on the ballots shall
be done manually and visually, but only after it has been determined that the integrity of
the ballots has been preserved.
How will it be determined whether the integrity of the ballots has been preserved?
Prior to the actual conduct of the recount of the votes, the recount committee is required
to authenticate each and every ballot to make sure that they were the same ballots that
were cast and fed to the PCOS machine during the elections. The authentication shall
be through the use of the PCOS machine actually used during the elections in the
subject precinct, or by another device certified by the Commission as one that can
perform the desired authentication requirement through the use of bar code and
ultraviolet ray code detection mechanism (COMELEC Resolution No. 8804, Rule 15, section
6).
Election Protest Quo Warranto
Barangay Officials Municipal Trial Court / Metropolitan Trial Court 10 days from proclamation 10
days from proclamation Municipal Officials Regional Trial Court 10 days from proclamation 10
days from proclamation Regional, Provincial, and City Officials COMELEC 10 days from
proclamation 10 days from proclamation Members of House of Representatives House of
Representatives Electoral Tribunal 10 days from proclamation 10 days from proclamation
Members of Senate Senate Electoral Tribunal 15 days from proclamation 10 days from
proclamation President and Vice President Presidential Electoral Tribunal 30 days from
proclamation 10 days from proclamation.
Election Protest
What are the procedures for resolving an election protest?
A. Filing of Protest: Within 10 days from proclamation of results of election.
B. Issuance of Summons: Within 24 hours from receipt of election protest or petition for quo
warranto.
C. Date of Filing the Answer: the answer must be filed within five (5) days from service of
summons and a copy of the petition, answer shall be filed in three legible copies, with
proof of service of a copy upon the protestant or petitioner.
D. Preliminary Conference: Within 3 days from the filing of the last responsive pleading
allowed by the Rules, or the expiration of the same period without any responsive having
been filed, the court shall conduct a mandatory preliminary conference among the parties
to consider:
1. The Simplification of issues;
2. The necessity or desirability of amendments to the pleadings;
3. The possibility of obtaining stipulations or admission of facts and of documents to
avoid unnecessary proof;
4. The limitation of the number of witnesses;
5. The nature of the testimonies of the witnesses and whether they relate to evidence
aliunde the ballots, or otherwise;
6. The withdrawal of certain protested or counterprotested precincts (especially those
where the ballot boxes or ballots are unavailable or are missing and cannot be located
or destroyed due to natural disasters or calamities);
7. The number of revision committees to be constituted;
8. The procedure to be followed in case the election protest or counter-protest seeks,
wholly or partially, for the examination, verification, verification or re-tabulation of
election returns;
9. Such other matters as may aid in the prompt disposition of the case;
Preliminary Conference Order

Within 3 days from the date of Preliminary
Conference, the court shall issue an order
summarizing the matters taken up and the
stipulations or agreements reached during the
conference.
The court shall specify in the preliminary
conference order when the revision of ballots will
commence, which shall be within five days from
the termination of the preliminary conference.
Technical Examination A party may move for the technical examination
within five days after completion of revision in
the protest or counter-protest, except when it
involves allegation of massive substitute voting
in the protest or counter-protest. If the motion is
granted, it shall not exceeding 20 successive
working days
Reception of Evidence Shall not exceed 10 successive days
Cross-Examination 1 day for each witness presented
Decision Within 30 days from the time the case was
submitted for decision, in no case beyond 6
months from time the case was filed, unless the
Supreme Court authorizes and extension in
writing.
s
Filing of Protest An election protest or petition for quo warranto shall
be filed directly with the Commission in ten (10) legible
copies plus such number of copies corresponding to
the number of protestees, within a non-extendible
period of ten days following the date of proclamation.
Issuance of Summons Within three (3) days following the filing of a protest
or petition in ordinary actions except appeals from
decisions of courts in election protest cases, in special
actions, special cases, special reliefs, and in special
proceedings.
Date of Filing the Answer The answer must verified and must be filed within five
(5) days from service of summons, in ten legible copies,
with proof of service of a copy upon the protestant.
13
Election Protest
Preliminary Conference Within three days after the filing of the last responsive
pleading allowed by these rules, or expiration of the
same period without any responsive pleading having
been filed, the Commission shall conduct a mandatory
preliminary conference among the parties to consider:
The simplification of issues;
The necessity or desirability of amendments to the
pleadings;
The possibility of obtaining stipulations or admission
of facts and of documents to avoid unnecessary
proof;
The limitation of the number of witnesses;
The nature of the testimonies of the witnesses and
whether they relate to evidence aliunde, the ballots
or otherwise;
The withdrawal of certain protested or counterprotested
precincts (especially those where the
ballot boxes or ballots are unavailable or are
missing and cannot be located or destroyed due to
natural disasters or calamities);
The number of recount committees to be
constituted;
The procedure to be followed in case the election
protest or counter-protest seeks, wholly or partially,
the examination, verification or re-tabulation of
election returns; and
Such other matters as may aid in the prompt
disposition of the case.
••
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•
•
•
•
Preliminary Conference
Order
Within three days following the date of the preliminary
conference, the Commission shall issue an order
summarizing the matters taken up and stipulations
or agreements reached during the conference. The
Commission shall specify in the preliminary conference
order when the recount of ballots will commence,
which shall be within five days from the termination of
the preliminary conference.
Technical Examination Silent
14
& Election Protest
Reception of Evidence The reception of evidence on all matters or issues
raised in the protect and counter-protests shall be
presented and offered in a hearing upon completion
of (a) the recount of ballots, or re-tabulation of election
documents, or (b) the technical examination, if
warranted.
Reception of evidence shall be made in accordance
with the following order of hearing:
The Protestant shall present evidence in support of
the protest;
The protestee shall then adduce evidence in
support of the defense, counterclaim or counterprotest,
if any;
The parties may then respectively offer rebutting
evidence only, unless the Commission for good
reasons, in the furtherance of justice, permits them
to offer evidence upon their original case; and
No sur-rebuttal evidence shall be allowed.
•
•
•
•
Cross-Examination When the proceedings are authorized to be summary,
in lieu of oral testimonies, the parties may, after due
notice, be required to submit their position paper
together with affidavits, counter-affidavits and other
documentary evidence; and when there is a need for
clarification of certain matters, at the discretion of the
Commission or the Division, the parties may be allowed
to cross-examine the affiants.
Decision The conclusions of the Commission in any case
submitted to it for decision shall be reached in
consultation before the case is assigned by raffle to
a Member for the writing of the opinion. A certification
to this effect signed by the Chairman or Presiding
Commissioner shall be incorporated in the decision.
Any member who took no part, or dissented, or
abstained from a decision or resolution must state the
reason therefor.
Every decision shall express therein clearly and
distinctly the facts and the law on which it is based.
In its decision the Commission shall be guided by the
principle that every ballot is presumed to be valid unless
there is clear and good reason to justify its rejection
and that the object of the election is to obtain the true
expression of the voters.
15
Election Protest
Elec tio n Protes ts involving membe rs
of the House of Rep rese ntatives
Filing of Protest Within ten (10) days after the proclamation of the results
of election.
Issuance of Summons The Secretary of the Tribunal shall issue the corresponding
summons to the protestee or respondent, as the case
maybe, together with a copy of the petition, requiring him
within (10) days from receipt thereof to file his answer.
Date of Filing the Answer The answer must be verified and may set forth special and
affirmative defenses and a counter-claim. The protestee may
incorporate in his answer a counter-protest. The answer shall
be filed in fifteen (15) clearly legible copies with proof of service
of a copy upon the protestant or petitioner within ten (10) days
from receipt of the summons and a copy of the petition.
If filed in a separate pleading, a counter-protest must be
verified and filed in fifteen (150 clearly legible copies with
proof of service of a copy upon the protestant within ten
(10) days from receipt of the summons and the protest.
Preliminary Conference The Hearing Commissioner shall forthwith order the parties
to submit their respective preliminary conference briefs and
call them and their counsel to a preliminary conference. At
such conference, the parties shall consider:
The Simplification of issues;
The possibility of obtaining stipulations or admission of
facts and of documents to avoid unnecessary proof;
The Limitation of the number of witnesses;
The nature of the testimonies of the witnesses and whether
they relate to evidence aliunde the ballots, or otherwise;
The withdrawal of some contested or counterprotested
precinct (especially those where, inter
alia, the ballots are unavailable due to the existence
of protests concerning other positions involving the
said ballots or are missing and cannot be located or
destroyed due to natural disasters or calamities);
The fixing of the dates for the reception of evidence,
including the matter of reception to be done
simultaneously with the revision of the ballots if the
evidence is intended to prove such causes of action or
defenses or issues which are unrelated to the ballots
or election documents;
Such other matters as may aid in the prompt disposition
of the protest, counter- protest or cross-contest.
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•
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16
& Election Protest
Order
Silent
Technical Examination Not applicable
Reception of Evidence The reception of evidence by a hearing Commissioner
shall be done at the offices of the Tribunal, unless the
tribunal, for good cause shown, directs the reception of
such evidence in some other place.
Cross-Examination The opposing party shall have the right to attend the taking
of the depositions and cross-examine the witnesses
presented. Failure to do so shall be deemed a waiver of
such right.
Decision In rendering its decision, the Tribunal shall follow the
procedure prescribed for the Supreme Court in Article VIII,
Section 13 and 14 of the Constitution. To Wit:
Article VIII 1987 Constitution:
Section 13. The conclusions of the Supreme Court
in any case submitted to it for decision en banc or
in division shall be reached in consultation before
the case is assigned to a Member for the writing of
the opinion of the Court. A certification to this effect
signed by the Chief Justice shall be issued and a
copy thereof attached to the record of the case and
served upon the parties. Any Members who took
no part, or dissented, or abstained from a decision
or resolution, must state the reason therefor. The
same requirements shall be observed by all lower
collegiate courts.
Section 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for reconsideration of
a decision of the court shall be refused due course or
denied without stating the legal basis therefor.
The decision shall become final ten (10) days after receipt
of a copy by the parties or their counsel if no motion for
reconsideration is filed.
17
Election Protest
Elec tio n protes ts involving membe rs of the Senate
Filing of Protest Within fifteen (15) days after the proclamation of
the results of election.
Issuance of Summons The Secretary of the Tribunal shall issue the
corresponding summons to the protestee/s or
respondent/s, to which a copy of the petition shall
be attached, requiring the latter to file his/their
answer within ten (10) days from receipt thereof.
Date of Filing the Answer The Answer shall be verified and shall be filed
within the ten-day period stated in the summons
in fifteen (15) clearly legible copies with proof of
service of one copy each on the petitioner and
cross contestant/s, if any.
Preliminary Conference Not Applicable
Order
Not applicable
Technical Examination The motion for technical examination may be
granted by the Tribunal in its discretion and under
such conditions as it may impose. If the motion is
granted, the Tribunal shall schedule the technical
examination, prescribing the duration thereof, and
notify the parties at least five (5) days in advance
of the start of such examination. The technical
examination shall be completed within the period
fixed by the Tribunal. A party may attend the
technical examination, either personally or through
a representative, but the examination may proceed
with or without his attendance provided due notice
has been given him.
Reception of Evidence It shall be done at the office of the Tribunal unless
the Tribunal, for good cause shown, directs the
reception of evidence in some other places.
The reception of evidence for a particular municipality,
city or province shall be held from 9:30 A.M. to 12:00
Noon and from 1:30 P.M. to 4:00 P.M., everyday,
except Saturday, Sunday and Holidays, unless the
parties agree otherwise, until the completion of the
presentation of the evidence by the parties for that
municipality, city or province.
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Reception of Evidence If at preliminary conference the parties have agreed
on the presentation of witnesses to testify on matters
or issues aliunde the ballots or other election
documents, the reception of the testimonies of said
witnesses shall be done simultaneously with the
revision of the ballots at a date fixed for the purpose
by the Hearing Commissioner.
Cross-Examination
Decision In rendering its decision, the Tribunal shall follow
the procedure prescribed for the Supreme Court in
Article VIII, Section 13 and 14 of the Constitution.
To Wit:
Section 13. The conclusions of the Supreme Court
in any case submitted to it for decision en banc or
in division shall be reached in consultation before
the case is assigned to a Member for the writing
of the opinion of the Court. A certification to this
effect signed by the Chief Justice shall be issued
and a copy thereof attached to the record of the
case and served upon the parties. Any Members
who took no part, or dissented, or abstained
from a decision or resolution, must state the
reason therefor. The same requirements shall be
observed by all lower collegiate courts.
Section 14. No decision shall be rendered by
any court without expressing therein clearly
and distinctly the facts and the law on which it
is based.
No petition for review or motion for reconsideration
of a decision of the court shall be refused due
course or denied without stating the legal basis
therefor.
The decision shall become final ten (10) days after
receipt of a copy by the parties or their counsel if no
motion for reconsideration is filed.
19
Election Protest
Elec tio n protes ts involving the Presi dent
and the Vice Presi dent
Filing of Protest Within thirty (30) days after the proclamation of
the results of election.
Issuance of Summons The Clerk of the Tribunal shall issue the
corresponding summons to the protestee or
respondent together with a copy of the protest or
petition requiring him to file an answer within ten
days from receipt of the summons.
Date of Filing the Answer The answer shall be verified and may set forth
special and affirmative defenses. The protestee
or respondent may incorporate in his answer a
counter-protest or counterclaim which shall be
filed with the Clerk of the Tribunal. The answer
must be filed within ten days from receipt of
summons in eighteen clearly legible copies with
proof of service of a copy upon the protestant or
petitioner.
Preliminary Conference After the filing of the last pleading, the Tribunal
shall order a preliminary conference to consider:
the possibility of obtaining stipulations or
admissions of facts and documents to avoid
unnecessary proof;
the simplification of the issues;
the limitation of the number of witnesses;
the most expeditious manner for the retrieval
of ballot boxes containing the ballots, election
returns, certificates of canvass and other
election documents involved in the election
protest; and
such other matters as may aid in the prompt
disposition of the election protest or petition
for quo warranto.
•
••• •
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& Election Protest
Preliminary Conference The parties shall file with the Tribunal and serve
on the adverse party a preliminary conference
brief at least five days before the date of the
preliminary conference, which shall contain:
stipulations or admissions of facts and
documents;
the issues to be resolved;
the numbers and names of witnesses, and
the nature and substance of their respective
testimonies;
the list of not more than three provinces which
the parties may designate pursuant to Rule
63; and
the proposal on the prompt disposition of the
case.
•
••
•
•
Order
The Tribunal shall issue an order reciting
the matters taken up during the preliminary
conference and the action thereon.
Technical Examination Within five days after completion of revision/
correction, either party may move for a technical
examination, specifying:
The nature of the technical examination
requested (fingerprint examination,
examination of the genuineness of the ballots
or election returns, and others);
The documents to be subjected to technical
examination;
The objections made in the course of the
revision of ballots and correction of manifest
errors which he intends to substantiate with
the results of the technical examination; and
The ballots and election returns covered by
such objections.
•
•
•
•
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Election Protest
Technical Examination The Tribunal may grant the motion for technical
examination in its discretion and under such
conditions as it may impose. If the motion is
granted, the Tribunal shall schedule the technical
examination, notifying the other parties at least
five days in advance. The technical examination
shall be completed within the period allowed by
the Tribunal. A party may attend the technical
examination, either personally or through a
representative, but the technical examination
shall proceed with or without his attendance,
provided due notice has been given to him.
The technical examination shall be conducted
at the expense of the movant and under the
supervision of the Clerk of the Tribunal or his duly
authorized representative
Reception of Evidence After the submission of all Revision/Correction
Reports, the Tribunal may delegate the reception
of evidence to a Hearing Commissioner who is a
member of the Bar.
The Hearing Commissioner shall fix a date for
the reception of evidence and submission of the
affidavits of the witnesses of the parties, with the
adverse parties being furnished copies.
Reception of evidence shall be done at the offices
of the Tribunal unless the Hearing Commissioner
directs its reception in some other place.
Cross-Examination In the reception of evidence of a party before
a Hearing Commissioner, the other party has
a right to be present and to cross-examine the
witnesses presented.
The Hearing Commissioner may proceed ex
parte in the absence of the other party provided
he has been duly notified of the hearing.
If a party presenting evidence fails to appear
at the time and place designated, the Hearing
Commissioner may adjourn the proceedings to
a future day, giving notice to the absent party
or his attorney of the adjournment. The delay
shall be charged to the party’s period to present
evidence.
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& Election Protest
Decision In rendering its decision, the Tribunal shall
follow the procedure prescribed for the Supreme
Court in Sections 13 and 14, Article VIII of the
Constitution.
Section 13. The conclusions of the Supreme
Court in any case submitted to it for decision
en banc or in division shall be reached in
consultation before the case is assigned to a
Member for the writing of the opinion of the
Court. A certification to this effect signed by the
Chief Justice shall be issued and a copy thereof
attached to the record of the case and served
upon the parties. Any Members who took no
part, or dissented, or abstained from a decision
or resolution, must state the reason therefor.
The same requirements shall be observed by
all lower collegiate courts.
Section 14. No decision shall be rendered by
any court without expressing therein clearly
and distinctly the facts and the law on which
it is based.
No petition for review or motion for reconsideration
of a decision of the court shall be refused due
course or denied without stating the legal basis
therefor
The decision shall become final ten (10) days
after receipt of a copy by the parties or their
counsel if no motion for reconsideration is filed.
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Annex
RESOLUTION No. 8804
IN RE: COMELEC RULES OF PROCEDURE ON DISPUTES IN AN AUTOMATED ELECTION SYSTEM IN
CONNECTION WITH THE MAY 10, 2010 ELECTIONS March 22, 2010
PART I: INTRODUCTORY PROVISIONS
Rule 1: Preliminary Provisions
Section 1. Title of the Rules. - These rules shall be
known and called as The Comelec Rules of Procedure on
Disputes in an Automated Election System.
Section 2. Applicability. - These rules shall apply to
election disputes under the Automated Election System
(AES) using the Precinct Count Optical Scan (PCOS) and
shall cover pre-proclamation controversies and election
protests.
Section 3. - Objective. - The objective of these Rules
is to afford accessible and effective remedy to address
complaints on the conduct of elections relative to the
use of PCOS AES in order to make the election process
credible and the results thereof acceptable to the people.
Section 3. Application of the Rules of Court and other
related rules. - The Commission on Elections (COMELEC)
Rules of Procedure, the Rules of Court, and the Rules
on Electronic Evidence shall apply by analogy, or in
a suppletory character, and whenever necessary,
practicable, and convenient.
Section 4. Suspension of the Rules. - In the interest of
justice and in order to obtain speedy disposition of all
matters pending before it, these Rules or any portion
thereof, may be suspended by the COMELEC.
Rule 2: Definition of Terms
Section 1. Meaning of Words. - Whenever used in these
Rules, the following words or terms shall mean:
a) Commission shall refer either to the Commission en
banc or to any of its two Divisions, unless otherwise
indicated.
b) Automated Election System or AES refers to an election
system using appropriate technology, in voting, counting,
consolidating, canvassing, transmission of election
results, and other electoral processes.
c) Precinct Count Optical Scan, or PCOS, means a
technology wherein an optical ballot scanner, into which
optical scan paper ballots marked by hand by the voter
are inserted to be counted, is located in every precinct;
d) Official ballot refers to the paper ballot with the
pre-printed names of all candidates and with ovals
corresponding to each of the names printed. The ovals
are the spaces where voters express their choice through
marking or shading using a marking pen.
e) Picture Image of the Ballot refers to the image of the
ballot captured by the PCOS machine at the time the
voter feeds his/her ballots, which image is later stored in
a memory or removable data storage device attached to
the PCOS machines.
f) Election Returns refers to the document showing the
data of the election, the province, city, municipality and
the precinct in which it is held, and the votes in figures for
each candidate in a precinct or clustered precincts.
g) Electronic Election Returns refers to the copy of the
election return in electronic form generated by the PCOS
machine that is electronically transmitted to the Municipal
or City Board of Canvassers for the official canvass, to
the COMELEC Back-Up Server, and to the Server for
the dominant majority and dominant minority parties, the
citizens’ arm authorized by the COMELEC to conduct a
parallel count, and the Kapisanan ng mga Brodkasters sa
Pilipinas or KBP;
h) Printed Election Returns refers to the copy of the
election returns printed by the PCOS machine on a
paper, and authenticated by the manual signatures and
thumbmarks of the members of the Board of Election
Inspectors (BEI).
i) Electronic Transmission refers to the act of conveying
data in electronic form from one location to the other.
j) Canvass Proceedings refers to the proceedings that
involve the consolidation of precinct election results at the
municipal, city of district level; district election results at
the municipal or city level; municipal or city election results
at the provincial level; and provincial election results at the
national level, be it the COMELEC or Congress. It also
include the formal proclamation of the election winners at
the various canvass levels.
k) Consolidation Machine refers to the machine used at
the canvass proceedings to consolidate precinct results,
municipal and city results, provincial results, as the case
may be, for purposes of getting the total votes of all
candidates at a particular canvass level.
l) Statement of Votes by Precinct, Municipality, City,
District, Province, or Overseas Absentee Voting (OAV)
Station refers to a document in electronic and in printed
form generated by the canvassing or consolidating
machines or computers during the canvass proceedings.
This document records the votes obtained by candidates
in each precinct, municipality, city, district, province, or
OAV Station, as the case may be.
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& Election Protest
m) City/municipal/district/provincial certificate of canvass
refers to a document in electronic and in printed form
containing the total votes in figures obtained by each
candidates in a city/municipality/district/province, as the
case may be, the electronic form of which is the official
canvass result in the aforementioned jurisdictions and
is the one electronically transmitted to a higher canvass
level.
n) Certificate of Canvass and Proclamation refers to the
official document in printed form that contains the name
of all candidates who obtain the higher number of votes in
a particular constituency and certifies to said candidates’
proclamation as winners
o) Data Storage Device refers to the device where
electronic documents are stored and from which said data
may be obtained when necessary to verify the accuracy
and correctness of election data. It includes the back-up
storage device in which authentic electronic copies of said
data are also stored.
p) Audit Log refers to the document that contains the list
of all activities performed by the PCOS machines from the
time that it was powered-on, until the time when closed.
q) Electronic document refers to information or the
representation of information, data, figures, symbols
or other modes of written expression, described or
however represented, by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored
processed, retrieve or produced electronically. It includes
digitally signed documents and any print-out or output,
readable by sight or other means, which accurately
reflects the electronic document.
For purposes of these Rules, electronic documents refer
to either the picture image of the ballots and electronic
copies of the election returns, of statements of votes, of
certificates of canvass, and or the other electronic data
relative to the processing done by the PCOS machines
and the various consolidation machines.
PART II: PRE-PROCLAMATION CONTROVERSIES
Rule 3: Coverage of Pre-Proclamation Controversies
Section 1. Pre-Proclamation Controversy. - A preproclamation
controversy refers to the proceedings of
the board of canvassers which may be raised by any
candidates or by any registered political party or coalition
of political parties, or by any accredited and participating
party list group, before the board or directly with the
Commission. It covers only two issues:
a. Illegal composition of the Board of Canvassers (BOC);
b. Illegal proceedings of the BOC.
The basis of the canvass shall be electronically transmitted
results.
Section 2. Jurisdiction of the Commission in Pre-
Proclamation Controversies. - COMELEC has exclusive
jurisdiction in pre-proclamation controversies arising from
national, regional pr local elections.
A pre-proclamation controversy may be raised by any
candidate or by any registered political party, organization,
or coalition of political parties before the BOC, or directly
with the Commission.
Issues affecting the composition or proceedings of the
Boards may be initiated by filing a verified petition before
the Board or directly with the Commission.
If the petition is filed directly with the Board, its decision
may be appealed to the Commission within three (3) days
from issuance thereof. However, if commenced directly
with the Commission, the verified petition shall be filed
immediately when the board begins to act illegally, or at
the time of the appointment of the member of the board
whose capacity to sit as such is objected to.
Section 3. Rights of Political Parties and Candidates
Before the Board of Canvassers in Pre-Proclamation
Cases. -
a) All registered political parties, organizations, or
coalitions of political parties, and accredited citizens’
arms, and candidates, have the right to be present and to
be represented by counsel during the canvass of election
returns, or certificates of canvass.
b) Only one counsel may argue for each registered
political party, organization, or coalition of political parties,
accredited citizens’ arm or candidate.
c) No dilatory action shall be allowed by the BOC. It may
impose time limits for oral arguments.
d) All registered political parties, organizations, or
coalitions of political parties, and candidates, are entitled
to obtain a copy of the Statement of Votes per precinct
and a copy of the certificate of canvass duly authenticated
by the BOC.
Rule 4: Illegal Composition or Proceedings of the
Board of Canvassers
Section 1. Illegal Composition of the Board of Canvassers.
- There is illegal composition of the BOC when, among
other similar circumstances, any of the members do
not possess legal qualifications and appointments. The
information technology capable person required to assist
the BOC by Republic Act No. 9369 shall be included
as among those whose lack of qualifications may be
questioned.
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Annex
Section 2. Illegal Proceedings of the Board of Canvassers.
- There is illegal proceedings of the BOC when the
canvassing is a sham or mere ceremony, the results of
which are pre-determined and manipulated as when any
of the following circumstances are present:
a) precipitate canvassing;
b) terrorism;
c) lack of sufficient notice to the members of the BOC’s;
d) Improper venue
Section 3. Where and How Commenced. - Questions
affecting the composition or proceedings of the BOC may
be initiated in the BOC or directly with the Commission,
with a verified petition, clearly stating the specific ground/s
for the illegality of the composition and/or proceedings of
the board.
Section 4. When to File Petition. - The petition questioning
the illegality, or the composition and/or proceedings of the
BOC shall be filed immediately when the BOC begins to
act as such is objected to, if it comes after the canvassing
of the Board, or immediately when the proceedings
become illegal.
a) In case the petition is filed before the BOC:
a.1) Upon receipt of the verified petition, the BOC shall
immediately announce the fact of the filing of said petition
and the ground/s raised therein.
a.2) The BOC shall immediately deliberate on the petition,
and within a period of twenty-four (24) hours, make a
prompt resolution thereon, which resolution shall be
reduced into writing.
a.3) Should the BOC decide in favor of the petition, it
shall immediately inform the Commission of its resolution.
Thereafter, the Commission shall make the appropriate
action thereon.
a.4) In no case shall the receipt by the BOC of the
electronically transmitted precinct, municipal, city, or
provincial results, be suspended by the filing of said
petition.
a.5) The petitioner may appeal an adverse resolution by
the BOC to the COMELEC, by notifying the BOC of his or
her intent to appeal, through a verbal, and a written and
verified Notice of Appeal. The notice on the BOC shall not
suspend the formal proclamation of the official results of
the election, until the final resolution of the appeal.
a.6) Within forty-eight (48) hours from such notice to the BOC,
the petitioner shall submit before the Board a Memorandum
on Appeal stating the reasons why he resolution being
questioned is erroneous and should be reversed.
a.7) Upon receipt by the BOC of the petitioner’s
memorandum on appeal, the Board shall forward the entire
records of the petition at the expense of the petitioner.
a.8) Upon receipt of the records herein referred to, the
petition shall be docketed by the Clerk of Commission and
submitted to the COMELEC en banc for consideration and
decision.
a.9) Within five (5) days therefrom the COMELEC en banc
shall render its decision on the appeal.
b) If filed directly with the Commission, the petition shall
be heard by the COMELEC en banc under the following
procedures. Upon receipt of the petition by the COMELEC,
the Clerk of the Commission shall docket the same and
forthwith send summons to the BOC concerned with an
order directing it to submit, through the fastest verifiable
means available, its answer within forty-eight (48) hours.
The COMELEC en banc shall resolve the petition within
five (5) days from the filing of the answer, or upon the
expiration of the period to file the same.
Section 6. Illegal Proceedings Discovered after
Proclamation. - If the illegality of the proceedings of
the BOC is discovered after the official proclamation of
the supposed results, a verified petition to annual the
proclamation may be filed before COMELEC within ten
(10) days after the day of proclamation. Upon receipt of
the verified petition, the Clerk of the Commission shall
have the same docketed and forthwith issue summons to
the parties to be affected by the petition, with a directive
for the latter to file their answer within five (5) days from
receipt. Thereafter the case shall be deemed submitted
for resolution, which shall not be later seven (7) days from
receipt of the answer.
Rule 5: Canvass on Manually Prepared Election
Returns
Section 1. Canvass of Manually Prepared Election
Returns. - If by reason of the implementation of a continuity
plan, election returns and/or certificate of canvass are
manually prepared and transported to the BOC for
canvass, said continuity plan together with the General
Instructions for the Board of Canvassers shall primarily
apply, supplemented whenever applicable, by the regular
COMELEC Rules of Procedure and these rules.
PART III: ELECTION PROTEST
Rule 6: Election Protest
Section 1. Jurisdiction of the Commission on Elections. -
The Commission on Elections, through any of its Divisions,
shall have exclusive original jurisdiction over all election
protests involving elective regional (the autonomous
regions), provincial, and city officials.
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& Election Protest
Section 2. Election protest. - A petition contesting the
elections or returns of an elective regional, provincial,
or city official shall be filed with the Commission by any
candidate who was voted for in the same office and who
received the second of third highest number of votes or, in
a multi-slot position, was among the next four candidates
following the last ranked winner duly proclaimed, as
reflected in the official results of the election contained in
the Statement of Votes. The party filing the protest shall
be designated as the protestant; the adverse party shall
be known as the protestee.
Section 3. How Initiated. - An election protest or
petition for quo warranto shall be filed directly with the
Commission in ten (10) legible copies plus such number of
copies corresponding to the number of protestees, within
a non-extendible period of ten days following the date of
proclamation.
Each contest shall refer exclusively to one office but
contents for offices of the Sangguniang Pampook,
Sangguniang Panlalawigan or Sangguniang Panglungsod
may be consolidated in one case.
Section 4. Modes of service and filing. - Service and filing
of pleadings, including the initiatory petition and other
papers, shall be done personally. Except with respect
to papers emanating from the Commission, a resort
to other modes of service must be accompanied by a
written explanation why the service or filing was not done
personally. A violation of this Rule shall be a cause to
consider the pleading or paper as not filed.
Section 5. Petition must be verified and accompanied by
a certificate of non-forum shopping. - An election protest
shall be verified by an affidavit stating that the affiant
has read the petition and that the allegations therein are
true and correct of affiant’s own knowledge or based on
authentic records. A verification based on “information and
belief” or upon the “knowledge, information and belief” is
not a sufficient verification.
The protestant shall personally sign the certificate of nonforum
shopping which must be annexed to the election
protest. An unverified petition or one with insufficient
verification or unaccompanied by a certificate of nonforum
shopping shall be dismissed outright and shall not
suspend the running of the reglementary period to file an
election protest.
Section 6. Pendency of pre-proclamation controversy. -
The pendency of a pre-proclamation controversy involving
the validity of the proclamation as defined by law shall
suspend the running of the period to file an election
protest.
Section 7. Contests of the protest or petition. - An election
protest or petition for quo warranto shall specifically state
the following facts:
a) The position involved
b) That the protestant was a candidate who has duly filed
a certificate of candidacy and has been voted for the same
office.
c) The date of proclamation; and
d) The number of votes credited to the parties per
proclamation.
An election protest shall also state:
e) The total number of precincts of the region, province or
city concerned;
f) The protested precincts and votes of the parties in
the protested precincts per the Statement of Votes By
Precinct or, if the votes of the parties are not specified an
explanation why the votes are not specified;
g) A detailed specification of the acts or omissions
complained of showing the electoral frauds, anomalies or
irregularities in the protested precincts.
Section 8. Docketing and Raffle of Protest. - The Director
of the Election Contest and
Adjudication Department (ECAD) shall immediately docket
the Protest and raffle the case to either the First or Second
Division of the Commission.
Section 9. Summary dismissal of election contest. - The
Commission shall summarily dismiss, motu proprio, an
election protest and counter-protest on the following
grounds:
a) The Commission has no jurisdiction over the subject
matter;
b) The protest is insufficient in form and content as
required in Section 7 hereof;
c) The petition is filed beyond the period prescribed in
these rules;
d) The filing fee is not paid within the period for the filing
the election protest or petition for quo warranto; and
e) In case of protest where a cash deposit is required, the
cash deposit is not paid within fifteen (15) days from the
filing of the protest.
Rule 7: Summons
Section 1. Summons. - Within three (3) days from the
filing of the protests, the Clerk of the Commission or
the Division concerned shall issue the corresponding
summons to the protestee or respondent, together with a
copy of the protest, requiring the filing of an answer within
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Annex
a non-extendible period of five days from notice.
Section 2. Service of summons. - The summons shall
be served immediately upon its issuance by handling a
copy to the protestee or respondent in person or, in case
of refusal of the protestee or respondent to receive and
sign for it, by tendering the same. If, for justifiable causes,
the protestee or respondent cannot be served in person
as provided above, service may be effected by leaving
copies of the summons at:
a) The residence of protestee or respondent, as stated in
the certificate of candidacy he filed, with some person of
suitable age and discretion residing therein, or
b) The office or regular place of business of protestee
or respondent with some competent person in charge
thereof.
Section 3. By whom served. - The summons shall be
served by a bailiff of the
Commission or Division or upon request of the Commission
or Division, by the Sheriff of any Court in the place where
the parties to be served reside or for special reasons,
by a person especially authorized by the Commission or
Division.
Section 4. Return. - When the service has been completed
by personal service, the server shall give notice thereof,
by registered mail, to the protestant or his counsel and
shall return the summons to the Clerk of the Commission
who issued it, accompanied with the proof of service.
Section 5. Proof of Service. - Proof of service of summons
shall be made in the manner provided for in the Revised
Rules of Court of the Philippines.
Rule 8: Answer and Counter-Protest
Section 1. Verified answer; counter-protest. - Within
five days from receipt of he summons and a copy of the
protest the protestee shall file an answer in ten (10) legible
copies, with proof of service of a copy upon the protestant.
The answer shall be verified and may set forth admissions
and denials, special and affirmative defenses and a
compulsory counterclaim. The protestee may incorporate
a counter-protest in the answer.
The counter-protest shall specify the counter-protested
precincts and any votes of the parties therein per the
Statement of Votes, or if not so specified, an explanation
why the votes are not specified, and a detailed specification
of the acts or omissions complained of showing the
electoral frauds, anomalies or irregularities in the counterprotested
precincts.
Section 2. Answer to counterclaim or counter-protest.
- The protestant shall answer the counterclaim or counterprotest
within a non-extendible period of five days from
notice.
Section 3. Allegations in the answer. -
(a) Specific denial. - A protestee must specify each
material allegation of fact the truth of which is not admitted
and, whenever practicable, shall set forth the substance
of the matters relied upon in support of the denial. The
protestee shall specify so much of the averments that are
true and material and shall deny the remainder.
(b) Allegations not specifically denied deemed admitted.
- Material averment in the protest other than the amount
of unliquidated damages and issues as to the recount or
appreciation of ballots, shall be deemed admitted when
not specifically denied.
Section 4. Effect of failure to plead. -
a) Defenses and objections not pleaded. - Defenses and
objections not pleaded are deemed waived. However,
when it appears from the pleadings or the evidence on
record that the Commission has no jurisdiction over
the subject matter, that there is another action pending
between the same parties for the same cause, or that
the action is barred by a prior judgment, or the statute of
limitations, the Commission shall dismiss the claim.
b) Compulsory counterclaim or cross-claim not set-up
barred. - A compulsory counterclaim, or a cross-claim not
set up shall be barred.
c) Effect of failure to answer. - In an election protest that
does not involve ballot recount, if the protestee fails to file
an answer within the time allowed, the Commission shall,
upon motion of the protestant with notice to the protestee,
and upon proof of such failure, require the protestant to
submit evidence ex parte.
d) However, in the case of election protests involving ballot
recount or examination, or verification or re-tabulation of
the election returns, the Commission shall order such
recount of ballots or re-tabulation of election returns.
The Commission shall proceed to render judgment
based on the results of the recount or re-tabulation of
election returns. During the recount or re-tabulation of
election returns, only the protestant, or his representative
may participate. The protestee or his duly authorized
representative has the right to be present and observe the
proceedings without the right to register his comment on
the ballots and election returns.
Section 5. How to compute time. - In computing any period
of time prescribed or allowed by these Rules, or by order
of the Commission, or bay any applicable statute, the day
of the act or the event from which the designated period
of time begins to run is to be excluded and the date of
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& Election Protest
performance included. If the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or legal holiday
on the place where the Commission sits, the time shall not
run until the next working day.
Section 6. Amendments; limitations. - After the expiration
of the period for the filing of the election protest or counterprotest,
substantial amendments that broaden the scope
of the action, or introduce an additional cause or causes of
action may be allowed only upon leave of the Commission.
Such leave may be refused if it appears that the motion
was made with intent to delay. Any amendment in matters
of form, such as a defect in the designation of the parties
and other clearly clerical or typographical errors, may be
summarily corrected by the Commission at any stage of
the proceedings, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party.
Rule 9: Motions
Section 1. Motions must be in writing. - Except those made
in open session during the course of the proceedings, all
motions shall be in writing.
A motion shall state the order sought to be obtained and
the grounds upon which it is based.
Section 2. Proof of service necessary. - No written motion
shall be acted upon by the Commission without proof of
service on the adverse party.
Section 3. No hearings on motions. - Motions shall not be
set for hearing unless the Commission directs otherwise.
Oral argument in support thereof shall be allowed only
upon the discretion of the Commission. The adverse party
may file opposition five days from receipt of the motion,
upon the expiration of which such motion is deemed
submitted for resolution. The Commission shall resolve
the motion within five days.
Rule 10: Prohibited Pleadings
Section 1. Prohibited pleadings and motions. - The
following pleadings, motions or petitions shall not be
allowed:
a) Motion to dismiss except on the ground of lack of
jurisdiction over the subject matter;
b) Motion for a bill of particulars;
c) Demurrer to evidence;
d) Motion for new trial, or for reconsideration of a judgment,
or for reopening of trial;
e) Petition for relief from judgment;
f) Motion for extension of time to file pleadings, affidavits
or other papers;
g) Memoranda, except when required by the Commission
in an Order;
h) Motion to declare the protestee or respondent in
default;
i) Dilatory motion for postponement;
j) Motion to inhibit the Commissioner/s except on clearly
valid grounds;
k) Reply or rejoinder; and
l) Third-party complaint.
Section 2. Grounds to dismiss must be set up in the
answer. - All grounds to dismiss an election protest must
be set-up or pleaded as affirmative or special defenses.
Defenses not raised are deemed waived. The Commission
may, in its discretion, hold a preliminary hearing on the
grounds so pleaded.
Rule 11: Filing fees and cash deposits
Section 1. Filing fees. - No protest, counter-protest shall
be accepted for filing without the payment of a filing fee
in the amount of Ten Thousand Pesos (P10,000.00) for
each interest.
If claims for damages and attorney’s fees are set forth in
a protest or counter-protest, additional filing fees shall be
paid in accordance with the schedule provided for in Rule
141 of the Rules of Court, as amended.
Section 2. Cash Deposit. - (a) In addition to the fees
prescribed in the preceding section, the protestant on an
election protest requiring recount of ballots or re-tabulation
of election returns, or which may require the bringing to
the Commission of copies of other election documents,
printed or electronic, as well as the machines or devices
to which electronic election documents are stored or
may be processed, shall make a cash deposit with the
Commission in the following amounts:
1. One Thousand Five Hundred Pesos (P1,500.00) for
each precinct involved in the protest or counter-protest;
provided that, in no case shall the deposit be less than
Twenty-Five Thousand Pesos (P25,000.00) to be paid
upon the filing of the election protest (counter-protest);
2. If the amount to be deposited does not exceed One
Hundred Thousand Pesos (P100,000.00), the same shall
be paid in full within ten days after the filing of the protest;
and
3. If the deposit exceeds One Hundred Thousand Pesos
(P100,000.00), a cash deposit in the amount of One
Hundred Thousand Pesos (P100,000.00) shall be made
within ten days after the filing of the protest.
The balance shall be paid in such installments as may
29
Annex
be required by the Commission with at least five days
advance notice to the party required to make the deposit.
The cash deposit shall be applied by the Commission to
the payment of compensation of Recount Committees as
provided under Section 3, Rule 17 of these Rules and
of all expenses incidental to the recount but not limited
to supplies and miscellaneous expenses of the recount
committee. When the Commission determines that the
circumstances so demand, as when the deposit has
been depleted, it may require additional cash deposits.
Any unused cash deposit shall be returned to the party
making the same after complete termination of the protest
or counter-protest.
The same amount of cash deposit shall be required from
the protestee (counter-protestant), should continuation
of recount be ordered. Once required, the protestee
(counter-protestant) shall pay the cash deposit within a
non-extendible period of three days from receipt of the
corresponding order.
(b) Failure to make the cash deposits required within the
prescribed time limit shall result in the automatic dismissal
of the protest, or counter-protest.
(c) The Division Clerk of the Commission or Overall
Chairman of the Recount Committee shall liquidate any
cash advance granted to him/her for the purchase of
supplies within a non-extendible period of thirty (30) days
from date of termination of the recount.
Rule 12: Production and Custody of Ballot Boxes,
Election Documents, Data Storage Devices, and
Machines Used in the Elections
Section 1. Issuance of precautionary protection order.
- Where the allegations in a protest so warrant, and
simultaneously with the issuance of summons, the
Commission shall order the municipal treasurer and
election officer, and the responsible personnel and
custodian to take immediate steps or measures to
safeguard the integrity of all the ballot boxes, lists of
voters with voting records, books of voters and other
documents or paraphernalia used in the election, as
well as data storage devices containing electronic data
evidencing the conduct and the results of elections in the
contested precincts.
Section 2. When ballot boxes and election documents
are brought before the Commission. - Within forty-eight
hours from receipt of the answer with counter- protest, if
any, and whenever the allegations in a protest or counterprotest
so warrant and when it finds the same necessary,
the Commission shall order the boxes with their keys,
lists of voters with voting records, books of voters, the
electronic data storage devices, and other documents,
paraphernalia, or equipments relative to the precincts
involved in the protest or counter-protest, to be brought
before it.
The Commission shall notify the parties of the date and
time for the retrieval from their respective custodians
of the ballot boxes, other election documents, data
storage devices, equipments. The parties may send
representatives to witness the activity. The absence,
however, of a representative of a party shall not be reason
to postpone or delay the bringing of the ballot boxes,
election documents, and data storage devices, into the
custody of the Commission.
The Commission, in its discretion, may seek the assistance
of the Philippine National Police or the Armed Forces of
the Philippines in ensuring the safe delivery of the ballot
boxes and election paraphernalia into the custody of the
Commission.
Where any of the ballot boxes, ballots, election returns,
election documents or paraphernalia mentioned in
the first paragraph above are also involved in election
contests before other fora, such as the Presidential
Electoral Tribunal, the Senate Electoral Tribunal, the
House of Representatives Electoral Tribunal, 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.
Rule 13: Preliminary Conference
Section 1. Preliminary conference; mandatory. - Within
three days after the filing of the last responsive pleading
allowed by these rules, or expiration of the same period
without any responsive pleading having been filed, the
Commission shall conduct a mandatory preliminary
conference among the parties to consider:
a) The simplification of issues;
b) The necessity or desirability of amendments to the
pleadings;
30
& Election Protest
c) The possibility of obtaining stipulations or admission of
facts and of documents to avoid unnecessary proof;
d) The limitation of the number of witnesses;
e) The nature of the testimonies of the witnesses and
whether they relate to evidence aliunde, the ballots or
otherwise;
f) The withdrawal of certain protested or counter-protested
precincts (especially those where the ballot boxes or ballots
are unavailable or are missing and cannot be located or
destroyed due to natural disasters or calamities);
g) The number of recount committees to be constituted;
h) The procedure to be followed in case the election
protest or counter-protest seeks, wholly or partially, the
examination, verification or re-tabulation of election
returns; and
i) Such other matters as may aid in the prompt disposition
of the case.
Section 2. Notice through counsel. - The notice of
preliminary conference shall be served on the counsel
or on the party who has no counsel. Notice to counsel is
notice to the party, as counsel is charged with the duty to
notify the party represented.
Section 3. Appearances of parties. - It shall be the duty of
the parties and counsel to appear before the Commission
in person at the preliminary conference.
Section 4. Preliminary conference brief. - The parties shall
file with the Commission and serve on the adverse party,
in such manner as shall ensure their receipt at least one
day before the date of the preliminary conference, their
respective briefs which shall contain the following:
a) A summary of admitted facts and proposed stipulation
of facts;
b) The issues to be tried or resolved;
c) The pre-marked documents or exhibits to be presented,
stating their purpose;
d) A manifestation of their having availed or their intention
to avail themselves of discovery procedures or referral to
commissioners;
e) The number and names of the witnesses, their
addresses, and the substance of their respective
testimonies. The testimonies of the witnesses shall be
by affidavits in question and answer form as their direct
testimonies, subject to oral cross examination;
f) A manifestation of withdrawal of certain protested or
counter-protested precincts, if such is the case;
g) The proposed number of recount committees and
names of their representative, and their alternates; and
h) In case the election protest or counter-protest seeks
the examination, verification or re-tabulation of election
returns, the procedure to be followed.
Section 5. Failure to file brief. - Failure to file the brief or
to comply with its required contents shall have the same
effect as failure to appear at the preliminary conference.
Section 6. Effect of failure to appear. - The failure of
the protestant or counsel to appear at the preliminary
conference shall be cause for dismissal, moto proprio, of
the protest or counter-protest. The failure of the protestee
or counsel to appear at the preliminary conference gives
the Commission the discretion to allow the protestant to
present evidence ex parte and render judgment based on
the evidence presented.1avvphi1
Section 7. Preliminary conference order. - Within three
days following the date of the preliminary conference, the
Commission shall issue an order summarizing the matters
taken up and stipulations or agreements reached during
the conference. The Commission shall specify in the
preliminary conference order when the recount of ballots
will commence, which shall be within five days from the
termination of the preliminary conference.
Rule 14: Subpoena
Section 1. Subpoena Ad Testificandum or Subpoena
Duces Tecum. - Subpoena ad testificandum or subpoena
duces tecum may be issued by the Division motu proprio,
or upon request of the parties in any case.
Section 2. Form and Contents. - A subpoena shall be
signed by the Clerk of the Commission concerned. It shall
state the name of the Division issuing it and the title of the
action; it shall be directed to the person whose attendance
is required, and in the case of a subpoena duces tecum, it
shall also contain a reasonable description of the books,
documents or things demanded which may appear prima
facie relevant.
Rule 15: Recount of Ballots
Section 1. Start of recount. - The recount of ballots
shall commence on the date specified in the preliminary
conference order, unless rescheduled by Order of the
Division.
Section 2. Recount committee; under the supervision
of the Commission. - There shall be constituted such
number of recount committees as may be necessary. The
list of the recount committees shall be submitted by the
Division Clerk of the Commission, through the Director
IV, Electoral Contests Adjudication Department, to the
Presiding Commissioner of either the First or Second
Division. Each recount committee shall be composed
31
Annex
of a Recount Coordinator/Chairman who shall be a
lawyer of the Commission, recorder, clerk, typist and
ballot box custodian and one representative each from
the protestant and the protestee. The Commission shall
designate the Recount Coordinators/ Chairman from
among its personnel. The parties shall also designate
their respective alternative representatives.
The recount committee shall conduct the recount in the
Commission’s premises or at such other places as may
be designated by the Commission, but in every case
under its strict supervision. The members of the Recount
Committee shall discharge their duties with the highest
degree of integrity, conducting the proceedings with
the same dignity and discipline as if undertaken by the
Commission itself. They shall exercise extraordinary
diligence and take precautionary measures to prevent
the loss, disappearance or impairment of the integrity of
the ballots and the other election documents, whether
electronic or printed, and other election paraphernalia.
Section 3. Compensation of the members of the Recount
Committee. - The Commission shall fix the compensation
of the members of the Committee including the fees for
supplies and materials at One Thousand Five Hundred
Pesos (1,500) per clustered precinct and shall be
distributed as follows:
a. Chairman P520.00
b. Recorder P240.00
c. Ballot Box Custodian P240.00
d. Typist P240.00
e. Supplies/materials P184.00
The amount of P6.00 shall also be allocated for storage of
the election paraphernalia and P50.00 for the honoraria
of the warehouse handlers. The Representatives of the
parties shall be directly compensated by their respective
principals or by parties themselves.
Section 4. Continuous Recount. - Once commenced, the
recount shall continue from day to day as far as practicable
until terminated.
a) Period for Recount. - recount shall be conducted from
8:30 o’clock in the morning to 12:00 noon and from 1:30
to 4:30 o’clock in the afternoon from Monday to Friday,
except on non-working holidays. The members of the
Recount Committee may take a fifteen-minute break in
each session.
b) Recount to continue even if a party representative is
absent or late. - The recount of ballots shall not be delayed
or postponed by reason of the absence or tardiness of a
party representative as long as the Recount Coordinator
and one party representative are present. The Commission
may at any time designate another Recount Coordinator
if the regular Recount Coordinator fails for any reason to
report.
c) If the representative of the protestee is absent or late.
- If the representative of the protestee is absent or late for
thirty minutes and no alternate appears as a substitute,
the recount shall, nevertheless, commence; the protestee
shall be deemed to have waived the right to appear and to
object to the ballots in the precinct or precincts scheduled
for recount on that particular day.
d) If the representative of protestant or counter-protestant,
or of both parties fail to appear. - If the representative of
the protestant, or of both parties and alternates fail to
appear for no justifiable reason within one hour after
fixed hours from the start of the recount, the ballot boxes
scheduled for that day, and the corresponding keys in the
possession of the chairperson, shall be returned to the
ballot box custodian of the Commission and shall no longer
be recounted; it is understood that the parties waive their
right to recount the same, and the Recount Coordinator
concerned shall state such facts in the corresponding
Recount report.
Section 5. Prohibited access. - During the recount of
ballots, no person other than the Commission, the clerk
of the Commission, the Recount Coordinators and the
members of the recount committees, the parties and their
duly authorized representatives, shall have access to the
recount area.
Section 6. Conduct of the Recount. - The recount of the
votes on the ballots shall be done manually and visually
and according to the procedures hereunder:
a) At the preliminary conference the date and the place
of the recount and the number of the recount committees
shall be set.
b) At the appointed place and day, the recount committee/
s shall convene.
c) At the same place and day, the ballot boxes containing
the ballots from the protested precincts, the data storage
device used in said precincts, as well as the machine or
any device that can be used to authenticate or assure the
genuineness of the ballots shall be brought to the venue
of the recount.
d) The different recount committees will be provided with
an adequate workspace, with tables and chairs that would
enable them to perform the recount in an efficient and
transparent manner.
e) The recount committee, upon the request in writing of
parties, will then randomly pick the precinct from which
32
& Election Protest
they would do the recount.
f) Before opening the ballot box, the recount committee
shall note its condition as well as that of the locks or
locking mechanism and record the condition in the recount
report. From its observation, the recount committee must
also make a determination as to whether the integrity of
the ballot box has been preserved.
g) The ballot box shall then be opened and the ballots
shall be taken out. The “valid” ballots shall first be counted,
without regard to the votes obtain by the parties. This will
be followed by the counting of the torn, unused and stray
ballots, as classified at the poling place.
h) The Votes appearing in election return copy for the
ballot box shall then be recorded in the minutes.
i) Prior to the actual conduct of the recount of the votes
the recount committee must authenticate each and every
ballot to make sure that they were the same ballots that
were cast and fed to the PCOS machine during the
elections. The authentication shall be through the use
of the PCOS machine actually used during the elections
in the subject precinct, or by another device certified by
the Commission as one that can perform the desired
authentication requirement through the use of bar code
and ultra-violet ray code detection mechanism.
j) Only when the recount committee, through the recount
coordinator, determines that the integrity of the ballots has
been preserved, will the recount proceed.
k) Upon such determination, the recount committee shall
then look at the ballot and count the votes as registered in
each and every one of them for the contested position.
l) In looking at the shades or marks used to register votes,
the recount 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 aside any technicalities.
Furthermore, the votes thereon are presumed to have
been ,made by the voter and shall be considered as
such unless reasons exist that will justify their rejection.
However, marks or shades which 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 feeding the ballot on the PCOS
machine, and not by human determination.
m) The rules on appreciation of ballots under Section 211
of the Omnibus Election Code shall apply suppletorily
when appropriate.
n) There shall be a tally sheet, of at least 5 copies, plus
additional copies depending on the number of additional
parties, that will be used for the tallying of the votes as
they are counted, through the use of the tara or sticks.
o) After all the ballots from one ballot box have been
counted, the recount committee shall secure the contested
ballots and complete the recount report for said precinct.
Thereafter, it shall proceed to recount the votes on the
ballots from the next precinct.
p) In case of multiple recount committees, the recount
shall be done simultaneously.
q) In the event that the recount committee determine
that the integrity of the ballots and the ballot box were
not preserved, as when there is proof of tampering or
substitution, it shall proceed to instruct the printing of the
picture image of the ballots of the subject precinct stored
in the data storage device for the same precinct. The
commission shall provide a non-partisan technical person
who shall conduct the necessary authentication process
to ensure that the data or image stored is genuine and not
a substitute. It is only upon such determination that the
printed picture image can be used for the recount.
Section 7. Preparation and submission of recount
report. - The committee shall prepare and submit to the
Commission a recount report per precinct stating the
following:
a) The precinct number;
b) The date, place and time of recount;
c) The condition and serial numbers of the following;
c.1) Ballot boxes;
c.2) Looks;
c.3) Data storage device.
d) The votes of the parties per physical count of the paper
ballots;
e) The votes of the parties per ballot-box copy of the
election returns;
f) The number of ballots questioned by the parties
indicating there-in the exhibit numbers;
g) The number of torn, unused and stray ballots;
h) The entries in the minute of Voting and counting,
particularly;
h.1) The number of registered voters;
h.2) The number of voters who actually voted;
h.3) The number of official ballots together with their serial
numbers used in the election;
h.4) The number of ballots actually used indicating the
serial numbers of the ballots; and
h.5) The unused ballots together with their serial
numbers.
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Annex
The recount forms shall be made available prior to the
recount. The per-precinct recount report shall be signed
and certified to by the recount coordinator and the
representatives of the parties, and shall form part of the
records of the case. The tally sheet used for the recount
shall be attached to the report.
In addition to the per-precinct recount report; the
recount committee shall also prepare and submit to
the court, within seven (7) days from the termination of
the recount, a committee report summarizing the data,
votes, questions on the ballots, significant observations
made in the recount of ballots from each of the protested
precincts and, later from the counter-protested precincts,
and comments and objections in case of disagreement
between committee members. Each party furnished with a
copy of the committee report may submit their comments
thereon within a non-extendible period of seven days from
notice.
Section 8. Inquiry as to security markings and vital
information relative to ballots and election documents.
- When a recount of ballots is ordered, and for the
guidance of the members of the Recount Committees,
the Commission shall give advise and instructions to
the committee on the security markings on the ballots
and election document. The commission shall likewise
designate a technical person who shall assist the Recount
Committee in authenticating electronic documents if
needed, as well as in transforming the same to a form that
can make them observable to the Committee.
Rule 17: Photocopying of Ballots
Section 1. Presentation and reception of evidence; order
of hearing. - On motion of a party, the Commission may
allow the photocopying or reproduction of paper ballots
and election documents. Upon such terms and conditions
as it may impose. The photocopying or reproduction, if
allowed, must start at the commencement of recount and,
as far as practicable, must be completed simultaneously
with the termination of recount.
Section 2. Where conducted; parties to provide own
photocopying units. - Photocopying shall be done within
the premises of the COMELEC, or at or near the are
where the recount is conducted, and shall be under the
supervision of the Clerk of the Commission. The party
concerned shall provide an efficient photocopying unit and
shall bear all experience relative thereto.
Rule 18: Presentation of Evidence
Section 1. Presentation and reception of evidence;
order of hearing. - The reception of evidence on all
matters or issues raised in the protect and counterprotests
shall be presented and offered in a hearing upon
completion of (a) the recount of ballots, or re-tabulation
of election documents, or (b) the technical examination,
if warranted.
Reception of evidence shall be made in accordance with
the following order of hearing:
a) The Protestant shall present evidence in support of the
protest;
b) The protestee shall then adduce evidence in support of
the defense, counterclaim or counter-protest, if any;
c) The parties may then respectively offer rebutting
evidence only, unless the Commission for good reasons,
in the furtherance of justice, permits them to offer evidence
upon their original case; and
d) No sur-rebuttal evidence shall be allowed.
In offering testimonial evidence, the party shall require
the proposed witness to execute an affidavit which shall
be considered as the direct testimony, subject to the right
of the adverse party to object to its inadmissible portions
and to orally cross-examine the witness. The affidavit
shall be based on personal knowledge, shall set forth
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify on the
matters stated therein. The affidavit shall be in question
and answer form. The affidavit shall be submitted to the
Commission and served on the adverse party at least three
days before the hearing. Failure to submit the affidavit of a
witness within the specified time shall constitute a waiver
of the party’s right to present testimonial evidence.
The one-day-cross-examinations-of-witness rule, that
is, a witness has to be fully cross-examined in one day
only shall be strictly adhered to. The Commission, at
its discretion, may extend the cross-examination for
justifiable reasons.
The recount reports, as well as the objected and claimed
ballots referred to therein, shall automatically form part of
records of the Commission and may be adopted by the
parties as their evidence.
Section 2. Offer of evidence. - The Commission shall
consider no evidence that has not been formally offered.
Formal offer of documentary evidence shall be done
in writing after the last day of hearing allowed for each
party. The opposing party shall be required to immediately
interpose his written objections thereto within five (5) from
receipt of formal offer. The Commission shall rule on the
offer of evidence not later than five (5) days from receipt
of the Comment to the formal offer.
Section 3. Reception of evidence continuous. - Reception
of evidence, once commenced, shall continue from day to
day as far as practicable until terminated.
Section 4. Adjournments and postponements. - No motion
34
& Election Protest
for postponement shall be allowed, except for clearly
meritorious reasons, in no case to exceed three times.
The filing of dilatory pleadings or motions shall constitute
direct attempt of Commission and shall be punished
accordingly.
Section 5. Burden of proof. - Burden of proof is the duty of
a party to present evidence of the facts in issue, necessary
to establish one’s claim or defense.
Section 6. Disputable presumptions. - The following
presumptions are considered as facts, unless contradicted
and overcome by other evidence;
a) On the election procedure:
a.1) The election of candidates was held on the date
and time set and in the polling place determined by the
Commission on Elections;
a.2) The Boards of Election Inspectors were duly
constituted and organized;
a.3) Political parties and candidates were duly represented
by poll watchers;
a.4) Poll watchers were able to perform their function;
and
a.5) The Minutes of Voting and Counting contains all the
incidents that transpired before the Board of Election
Inspectors.
b) On election paraphernalia:
b.1) Ballots and election returns that bear the security
marketing’s and features prescribed by the Commission
on Election are genuine;
b.2) The data and information supplied by the members
of the Boards of Election Inspectors in the accountable
forms are true and correct; and
b.3) The allocation, packing and distribution of election
documents or paraphernalia were properly and timely
done.
c) on appreciation of ballots:
c.1) A ballot with appropriate security markings is valid;
c.2) The ballot reflects the intent of the voter;
c.3) The ballot is properly accomplished;
c.4) A voter personality prepared one ballot, except in the
case of assistors; and
c.5) The exercise of one’s right to vote was voluntary and
free.
Section 7. Submission of memoranda. - The Commission
may allow the parties to submit their respective memoranda
within a non-extendible period of ten days from receipt of
the written ruling of the Commission. No supplemental,
reply or rebuttal memorandum shall be allowed.
Rule 19: Decisions
Section 1. Rendition of Decision. - The Commission shall
decide the election contest within thirty days from the date
it is submitted for decision.
Section 2. Procedure in making Decisions. - The
conclusions of the Commission in any case submitted to
it for decision shall be reached in consultation before the
case is assigned by raffle to a Member for the writing of the
opinion. A certification to this effect signed by the Chairman
or Presiding Commissioner shall be incorporated in the
decision. Any member who took no part, or dissented,
or abstained from a decision or resolution must state the
reason therefor.
Every decision shall express therein clearly and distinctly
the facts and the law on which it is based. In its decision
the Commission shall be guided by the principle that every
ballot is presumed to be valid unless there is clear and
good reason to justify its rejection and that the object of
the election is to obtain the true expression of the voters.
Section 3. Several Judgments. - In a protest against
several protestees, the Commission may, when a several
judgment is proper, render judgment against one or
more of them, leaving the protest to proceed against the
others.
Section 4. When extended Opinion Reserved. - When in
a given resolution or decision the writing of an extended
opinion is reserved, the extended opinion shall be
released within fifteen (15) days after the promulgation of
the resolution.
Section 5. Period to File Motion for Reconsideration When
Extended Opinion is Reserved. - If an extended opinion
is reserved in a decision, the period to file a petition for
certiorari with the Supreme Court or to file a motion for
reconsideration shall begin to run only from the date the
aggrieved party received a copy of the extended opinion.
Section 6. Promulgation. - The promulgation of a decision
of the Commission shall be on a date previously fixed, of
which notice shall be served in advance upon the parties
or their counsels personality, or by registered mail, or by
telegram, or any verifiable speedy means.
Section 7. Procedure if Opinion is Equally Divided. - When
the Commission en banc is equally divided in opinion, or
the necessary majority cannot be had, the case shall be
reached, and if on rehearing no decision is reached, the
protest or the counter-protest shall be deemed dismissed
if originally commenced in the Commission; in a appealed
cases, judgment or order appealed from shall stand
affirmed; and in all incidental matters, the petition or
35
Annex
motion shall be denied.
Section 8. Duty to certify to the President. - In election
protests, if the decision shall be that none of the parties
has been legally elected, the Commission shall certify
such decision to the President of the Philippines.
Section 9. Duty to Notify Other Agencies of the
Government. - As soon as a decision in an election protest
becomes final and executory, notices thereof shall be sent
to the President, the Secretary of Local Government, the
Chairman of the Commission on Audit, and the Secretary
of the Sangguniang Pampook in the case of regional
officials, the Secretary of the Sangguniang Panlalawigan
in the case of provincial officials, and the Secretary of the
Sangguniang Panglungsod in the case of city officials.
Section 10. Finality of Decisions or Resolutions. - Unless a
motion for reconsideration is seasonably filed, a decision
or resolution of a Division shall become final and executory
after the lapse of five (5) days following its promulgation.
Rule 20: Motion for Reconsideration
Section 1. Grounds of Motion for Reconsideration. - A
motion for reconsideration may be filed on the grounds that
the evidence is insufficient to justify the decision, order or
ruling; or that the said decision, is contrary to law.
Section 2. Period for Filing Motion for Reconsideration. - A
motion to reconsider a decision shall be filed within five
(5) days from the promulgation thereof. Such motion, if
not pro forma, suspends the execution or implementation,
of the decision, resolution, order or ruling.
Section 3. Form and Contents of Motion for
Reconsideration. - The motion shall be verified and
shall point out specifically the findings or conclusions
of the decision, resolution, order or ruling which are
not supported by the evidence or which are contrary
to law, making express reference to the testimonial or
documentary evidence or the provisions of law alleged to
be contrary to such findings or conclusions.
Section 4. Effect of Motion for Reconsideration on Period
to File Petition for Certiorari to the Supreme Court. - A
motion to reconsider a decision, resolution, when not proforma,
suspends the running of the period to elevate the
matter to the Supreme Court.
Section 5. How motion for Reconsideration Disposed
of. - Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the ECAD Clerk
concerned shall, within twenty-four (24) hours from the
filing thereof, notify the Presiding Commissioner. The
latter shall within two (2) days thereafter certify the case
to the Commission en banc.
Section 6. Duty of ECAD Director to Calendar Motion for
Resolution. - The EACD Director concerned shall calendar
the motion for reconsideration for the resolution of the
Commission en banc within ten days from the certification
thereof.
Section 7. Period to Decide by the Commission En Banc.
- The motion for reconsideration shall be decided within
fifteen (15) days from the date the case or matter is
deemed submitted for decision, unless otherwise provided
by law.
Section 8. Finality of Decision . - The decision of the
Commission shall become final and executory five days
after its promulgation and receipt of notice by the parties.
PART IV: MISCELLANEOUS MATTERS
Rule 21: Electronic Evidence
Section 1. Original of an electronic document or data.
- An electronic document or data shall regarded as
the equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by site
or other means, shown to reflect the data accurately.
Section 2. Copies as equivalent of the originals. - When
a document is in two more copies executed at or about
the same time with identical contents, or is a counterpart
produced by the same impression as the original, or
from the same matrix, or by mechanical or electronic
re-recording, or by chemical reproduction, or by other
equivalent techniques which is accurately reproduces the
original, such copies or duplicates shall be regarded as
the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall
not be admissible to the same extent as the original if:
a) A genuine is raised as to the authenticity of the original;
or
b) In the circumstances it would be unjust or inequitable to
admit a copy in lieu of the original.
Section 3. Affidavit of evidence. - All matters relating to
the admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating facts
of direct personnel knowledge of the affiant or based on
authentic records. The affidavit must affirmatively show
the competence of the affiant to testify on the matters
contained therein. The affiant shall be made to affirm
the contents of the affidavit in open session and may be
cross-examined as a matter of right by the adverse party.
Section 4. transmittal of Decision and Orders. - The
Clerk of the Commission shall transmit the Commission
decision and orders through the fastest means available
and through the official fax line to the BOC, and other
concerned parties, which shall verify the same and comply
36
& Election Protest
with the decision or order.
Rule 22: Authentication of Electronic Documents and
Data
Section 1. Burden of proving authenticity. - The person
seeking to introduce an electronic document in an election
protest has the burden of proving its authenticity.
Section 2. Manner of Authentication. - Before any
electronic document or data offered as authentic is
received in evidence, its authenticity must be proved by
any of the following means:
a) By evidence that it had been digitally assigned by the
person purported to have signed the same.
b) By evidence that other appropriate security procedures
or devices for authentication of electronic documents were
applied to the document; or
c) By other evidence showing its integrity and reliability to
the satisfaction of the judge.
Rule 23: Costs damage and Attorney’s Fees
Section 1. Costs; when allowed. - Costs shall be allowed to
the prevailing party as a matter of course. The Commission
shall have the power for special reasons, to apportion the
costs, as may be equitable. The Commission may render
judgment for costs if a protest, or a counter protect is found
to be frivolous, double or treble costs may be imposed on
the Protestant or the counter-Protestant.
Section 2. Damage and attorney’s fees. - In all election
contests, the Commission may adjudicate damages and
attorney’s fees, as it may deem just and as established
by the evidence, if the aggrieved party has included such
claims in the pleadings.
Rule 24: Effectivity
Section 1. Effectivity. - These Rules shall be published in
two (2) daily newspapers of general circulation and shall
take effect on the seventh day following its publication.
Approved this 22nd day of March, 2010, Manila,
Philippines

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Pre-Proclamation Controversy

What is a Pre-proclamation controversy?

What is the Purpose of Pre-proclamation controversy?

What are the grounds for a Pre-proclamation Controversy?

The Supreme Court Explains: Grounds for Pre-proclamation Controversy

When is there illegal composition of the Board of Canvassers?

When does one file a petition for pre-proclamation controversy?

Which body has jurisdiction over pre-proclamation controversies?

What is an Election Protest?

What is the purpose of an Election Protest?

What are the grounds for an Election Protest?

Ututalum v. COMELEC (G. R. No. 84843-44, January 22, 1990):

Bautista v. COMELEC (G. R. No. 78994, March 10, 1988):

Preliminary Conference Order

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