Vinzons-Chato vs. HRET

Picture images of ballots scanned and recorded by PCOS machines in a paper-based automated election system are "official ballots" that faithfully capture in electronic form the votes cast by the voter, and their printouts are the functional equivalent of the original paper ballots, admissible and usable for purposes of revision of votes in an electoral protest, provided the integrity of the storage medium (CF cards) is shown to have been preserved or, if challenged, the challenger bears the burden of proving otherwise.

The May 10, 2010 national and local elections constituted the maiden run for full automation under R.A. No. 9369, which amended R.A. No. 8436 and authorized the Commission on Elections to adopt an automated election system. The system deployed was paper-based, employing Precinct Count Optical Scan (PCOS) machines that scanned both sides of official paper ballots simultaneously in a single pass, capturing digitized images of the ballots in encrypted format stored in Compact Flash (CF) cards. Liwayway Vinzons-Chato and Elmer E. Panotes were rival candidates for the position of Representative of the Second Legislative District of Camarines Norte, a district comprising seven municipalities with a total of 205 clustered precincts. Panotes was proclaimed winner on May 12, 2010 with 51,707 votes against Chato's 47,822, a plurality of 3,885 votes.

Liwayway Vinzons-Chato renewed her bid for the position of Representative of the Second Legislative District of Camarines Norte in the May 10, 2010 elections, the first full automated elections under R.A. No. 9369. The district comprised seven municipalities — Daet, Vinzons, Basud, Mercedes, Talisay, San Vicente, and San Lorenzo — with a total of 205 clustered precincts. Her opponent, Elmer E. Panotes, was proclaimed the winner on May 12, 2010, having garnered 51,707 votes as against Chato's 47,822, a plurality of 3,885 votes.

On May 24, 2010, Chato filed an electoral protest before the House of Representatives Electoral Tribunal (HRET), docketed as HRET Case No. 10-040, assailing the results in all 160 clustered precincts in four municipalities: Daet, Vinzons, Basud, and Mercedes. No counter-protest was interposed by Panotes. Pursuant to Rule 37 of the 2011 HRET Rules, Chato designated forty pilot clustered precincts, equivalent to 25% of the total protested precincts, for revision of ballots. The initial revision, conducted from March 21 to 24, 2011, showed substantial discrepancies between the votes of the parties per physical count versus their votes per election returns in twenty precincts across the Municipalities of Basud and Daet, with Chato gaining votes and Panotes losing votes in nearly every listed precinct.

On March 24, 2011, Panotes moved for the suspension of the proceedings and prayed that a preliminary hearing be conducted to determine first the integrity of the ballots and ballot boxes used in the elections. The motion was prompted by observed irregularities in the condition of the ballot boxes subject of the revision: the top covers were loose, some padlocks had been tampered with, packing tape seals were broken or cut, self-locking security seals were improperly attached, and the contents — ballots and election documents — were in total disarray, with some Minutes of Voting and Election Returns missing and ballots unnecessarily folded or crumpled, particularly in clustered precincts where Panotes's votes were substantially reduced. Panotes urged that, should it be shown that the integrity of the ballots and ballot boxes was not preserved, the HRET should direct the printing of the picture images of the ballots stored in the CF cards for the questioned precincts.

Consequently, the HRET issued Resolution No. 11-208 directing the copying of the picture image files of ballots relative to the protest, scheduled to commence on April 25, 2011. Chato moved for the cancellation of the decryption and copying, arguing that there was no legal basis therefor and that the HRET had not issued any governing guidelines. Notwithstanding, the decryption and copying proceeded as scheduled. Chato then filed an Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images, citing Section 10(d) of the HRET Guidelines on the Revision of Ballots, which required a preliminary hearing showing that the integrity of the ballots and ballot boxes was not preserved before the Tribunal could direct the printing of picture images. She further alleged that the ballot images were taken from polluted CF cards, pointing to the admission by Atty. Anne A. Romero-Cortez, the Camarines Norte Provincial Elections Supervisor, during canvassing proceedings on June 2, 2010, that CF cards for the Municipalities of Labo, Vinzons, and Basud were defective and had to be replaced. Panotes countered that the CF card replacements occurred on election day itself, May 10, 2010, causing delayed voting in some precincts but with the voting period extended accordingly, and that nothing in the HRET rules prohibited the use of decrypted ballot images.

A preliminary hearing was conducted on May 27, 2011 to determine the integrity of the CF cards. Chato presented three witnesses: Oscar Villafuerte, Vice-Chairman of the Provincial Board of Canvassers; Reynaldo Mago, a media practitioner; and Angel Abria (Averia), an Information Technology expert. However, all three witnesses testified that they had no knowledge regarding the CF cards used specifically in the municipalities of Basud and Daet — the precincts with substantial variances. Villafuerte stated his role was limited to the reception of election results; Mago said Basud and Daet were not within his journalistic beat; and Abria's reports were on a national scale, not specific to those municipalities. Atty. Romero-Cortez, who had allegedly admitted the defective CF card replacements, was not presented to clarify whether the replacement occurred before or after the elections and which precincts were involved.

On June 8, 2011, the HRET issued Resolution No. 11-321 denying Chato's motion on the ground that she failed to show proof that the CF cards used in the twenty precincts with substantial variances were not preserved or were violated. The HRET declared that, although the actual paper ballots are the best evidence of the will of the voters, the picture images of the ballots are regarded as the equivalent of the original under Rule 4 of the Rules on Electronic Evidence. Chato's Motion for Reconsideration was denied in Resolution No. 11-487 dated September 15, 2011, the HRET categorically holding that the votes determined after revision in the twenty precincts in Basud and Daet, which yielded reversal of votes, cannot be relied upon as they do not reflect the true will of the electorate, and that the Tribunal must rely on the election returns and/or statement of votes by precinct for said precincts in lieu of the altered ballots.

Meanwhile, Chato had moved as early as March 24, 2011 for the revision of ballots in all protested clustered precincts, arguing that the results of the 25% pilot precinct revision indicated a reasonable recovery of votes in her favor. The HRET repeatedly denied her motions until March 22, 2012, when it issued Resolution No. 12-079 directing the continuation of revision in the remaining 75% of protested clustered precincts, or 120 precincts. The HRET justified its action by the need to "re-examine what appears to be a peculiar design to impede the will of the electorate" and to "see the whole picture of the controversy," noting that the substantial increase in Chato's votes and decrease in Panotes's votes after comparing election returns with physical counts were prima facie findings that should not be trivialized. Panotes's motion for reconsideration was denied on April 10, 2012. The revision proceedings for the remaining 75% were thereafter conducted from May 2 to 9, 2012, rendering the issue moot and academic.

• Picture Images Not "Official Ballots" Under R.A. No. 9369: Chato argued that since the AES used during the May 10, 2010 elections was paper-based, the "official ballot" is only the paper ballot printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas pursuant to Section 15 of R.A. No. 8436, as amended by R.A. No. 9369, and that picture images of ballots are not "official ballots."
• Rules on Electronic Evidence Inapplicable: Chato maintained that the Rules on Electronic Evidence do not apply to picture images of ballots, and that under the Electronic Commerce Act of 2000, picture images of paper ballots are not the equivalent of the original paper ballots.
• CF Card Integrity Compromised: Chato alleged that the CF cards used in the May 2010 elections were not preserved or were violated, citing the admission of Atty. Romero-Cortez that CF cards for Labo, Vinzons, and Basud were defective and had to be replaced.
• No Legal Basis Under Omnibus Election Code: Chato asserted there is no legal basis for the HRET to consider picture images of ballots as evidence, as such images are not recognized and their appreciation is not provided for under the Omnibus Election Code.
• Pending COMELEC Investigation: Chato pointed to the pendency of the COMELEC investigation on the main CF card for Clustered Precinct 44 of the Municipality of Daet as a ground to withhold issuance of Resolution No. 11-487.
• Lack of Precedential Value of Cited HRET Case: Chato argued that the HRET relied on Villafuerte vs. Jacob (15 HRET Report 754), which is merely an HRET case with no precedential value.
• Requirement of Full-Blown Trial: Chato contended that a full-blown trial concerning the integrity of the ballots was required, in contravention of the proceedings conducted.
• No Reasonable Recovery (Panotes, G.R. No. 201350): Panotes argued that Chato had not made a reasonable recovery in the initial revision of the 25% pilot protested clustered precincts, and that the HRET should have dismissed the protest in accordance with Rule 37 instead of ordering further revision.
• Contradiction Between HRET Resolutions: Panotes maintained that Resolution No. 12-079 was contradictory to the HRET's own findings in Resolution No. 11-487, which held that votes determined after revision in the 20 precincts cannot be relied upon.
• Pending Supreme Court Petition as Prejudicial Question: Panotes argued that the pendency of Chato's petition for certiorari before the Supreme Court was a preliminary matter that must be resolved first before the HRET could order revision of the remaining 75% of protested precincts.
• Reliability of CF Cards Not Questionable: Panotes asserted that the reliability of the Compact Flash cards had not been shown to be questionable, and that the result of the recount cannot be used to overturn the election returns because the ballots in the protest had been tampered.

• HRET Directed the Copying: Panotes stressed that the decryption and copying of ballot images was at the behest of the HRET itself, acting through Atty. Marie Grace T. Javier-Ibay, who formally requested on February 10, 2011 the copying of picture image files of ballots and election returns in 13 election protests pending before it.
• No Prohibition in HRET Rules: Panotes argued that there is nothing in the HRET rules that prohibits the use of decrypted and copied ballot images should he decide to use them.
• CF Card Replacement on Election Day: Panotes contended that the CF cards were found to be not working on election day, May 10, 2010, and had to be reconfigured, causing delayed voting in some precincts but with the voting period extended accordingly; the canvassing before the Provincial Board of Canvassers was halted to wait for transmission of results from the Municipal Board of Canvassers.

• Status of Ballot Images as Official Ballots: Whether the picture images of ballots scanned and recorded by PCOS machines may be considered as "official ballots" or the equivalent of the original paper ballots which the voters filled out.
• Integrity of CF Cards: Whether Chato established by substantial evidence that the CF cards used in the May 2010 elections were not preserved or were violated.
• Sufficiency of Preliminary Hearing: Whether the proceedings conducted by the HRET constituted a sufficient hearing on the integrity of the ballots, or whether a full-blown trial was required.
• HRET Authority to Continue Revision: Whether the HRET committed grave abuse of discretion in ordering the continuation of revision of ballots in the remaining 75% of protested clustered precincts despite its prior ruling that votes in the 20 pilot precincts could not be relied upon.
• Permissive vs. Mandatory Nature of Rule 37: Whether Rule 37 of the 2011 HRET Rules mandates dismissal of the protest upon failure of the protestant to make a reasonable recovery in the pilot precincts, or whether it is merely directory.

• Status of Ballot Images as Official Ballots: Yes. The picture images of the ballots, as scanned and recorded by the PCOS, are "official ballots" that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369, and their printouts are the functional equivalent of the paper ballots filled out by the voters.
• Integrity of CF Cards: No. Chato failed to discharge her burden of proving that the integrity of the questioned CF cards had not been preserved, her witnesses' testimonies having been found irrelevant and immaterial to the specific precincts at issue.
• Sufficiency of Preliminary Hearing: No full-blown trial was required. Having participated and presented her evidence at the May 27, 2011 preliminary hearing, Chato could not later complain that the proceedings did not amount to a full-blown trial on the merits.
• HRET Authority to Continue Revision: No grave abuse of discretion was committed. The HRET acted within its exclusive constitutional jurisdiction as sole judge of election contests, and its order to continue revision was supported by legal and factual bases.
• Permissive vs. Mandatory Nature of Rule 37: Rule 37 is directory, not mandatory. The provision is couched in the permissive term "may" instead of the mandatory word "shall," and the HRET is not without authority to proceed with revision even absent a reasonable recovery in the pilot precincts.

• Status of Ballot Images as Official Ballots: The May 10, 2010 elections used a paper-based election system under R.A. No. 9369, in which voters filled out official paper ballots by shading ovals opposite their chosen candidates and personally fed the ballots into PCOS machines that scanned both sides simultaneously. As established during demo tests, the system captured images of the ballots in encrypted format which, when decrypted, were found to be digitized representations of the ballots cast. Section 2(3) of R.A. No. 9369 defines "official ballot" where AES is utilized as the "paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form." The picture images captured by the PCOS satisfy this definition, as they faithfully capture in electronic form the votes cast by the voter. Accordingly, their printouts are the functional equivalent of the paper ballots and may be used for revision of votes in an electoral protest. The Court also noted that Rule 4 of the Rules on Electronic Evidence provides that an electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight, shown to reflect the data accurately.

• Integrity of CF Cards: The HRET, recognizing the possibility of tampering or substitution of CF cards despite encryption, provided in its Guidelines on the Revision of Ballots that picture images may be used unless it has been shown in a preliminary hearing that the integrity of the CF cards was not preserved or was violated. The HRET set the case for preliminary hearing on May 27, 2011, directing Chato to present evidence on this point. However, all three witnesses she presented testified that they had no knowledge regarding the CF cards used in the municipalities of Basud and Daet — the precincts with substantial variances. Atty. Romero-Cortez, who had allegedly admitted the replacement of defective CF cards, was not presented to clarify whether the replacement occurred before or after the elections and which precincts were involved. The HRET found the testimonies irrelevant and immaterial. The Court declined to substitute its own judgment for that of the HRET on the evidentiary weight of testimonies, holding that to do so would constitute an intrusion into the HRET's domain. For failure to discharge her burden, no further protestations to the use of the picture images should be entertained.

• Sufficiency of Preliminary Hearing: Chato argued that a full-blown trial was required under Tolentino vs. COMELEC for weighing the integrity of ballots. The Court rejected this contention, noting that Chato had participated and presented her evidence at the May 27, 2011 preliminary hearing and could not thereafter complain that the proceedings did not amount to a full-blown trial. Her allegation regarding the pending COMELEC investigation on the main CF card for Clustered Precinct 44 of Daet was found to concern only one precinct out of the twenty with substantial variances, and the HRET's explanation — that the COMELEC fact-finding investigation revealed the main CF card could possibly be located inside the MBOC ballot box — put the issue to rest.

• HRET Authority to Continue Revision: The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the election, returns and qualifications" of its members. By employing the word "sole," the Constitution makes the HRET's jurisdiction full, complete, and unimpaired. Rule 7 of the 2011 HRET Rules asserts this exclusive control. Absent any clear showing of arbitrary and improvident use of power constituting a denial of due process or a very clear unmitigated error manifestly constituting grave abuse of discretion, the Court will not interfere. The HRET justified its order to continue revision by the need to re-examine a peculiar design to impede the will of the electorate and to see the whole picture of the controversy, noting that the substantial increase in Chato's votes and decrease in Panotes's votes were prima facie findings that should not be trivialized. The Court held that it could not substitute its own judgment for that of the HRET on whether the evidence could affect the proclaimed results or whether continuation of revision could lead to a determination of the true will of the electorate.

• Permissive vs. Mandatory Nature of Rule 37: Panotes argued that Chato's failure to make a reasonable recovery in the pilot precincts should have led to dismissal under Rule 37. The Court pointed out that the provision uses the permissive term "may" instead of the mandatory "shall," making it merely directory. The HRET therefore had authority to proceed with revision of the remaining contested precincts even absent a reasonable recovery. In any event, the revision proceedings for the remaining 75% had already been conducted from May 2 to 9, 2012, rendering the issue moot and academic.

• Jurisdiction of Electoral Tribunals — The Supreme Court's jurisdiction to review decisions and orders of electoral tribunals is exercised only upon a showing of grave abuse of discretion committed by the tribunal; otherwise, the Court will not interfere with the electoral tribunal's exercise of its discretion or jurisdiction. Grave abuse of discretion is defined as the capricious and whimsical exercise of judgment, or the exercise of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion of positive duty.

• Exclusive Jurisdiction of the HRET — The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the election, returns and qualifications" of its members. By employing the word "sole," the Constitution makes the HRET's jurisdiction full, complete, and unimpaired. No challenge to its exclusive control may be sustained absent a clear showing of arbitrary and improvident use of power constituting a denial of due process, or a demonstration of a very clear unmitigated error manifestly constituting grave abuse of discretion.

• Official Ballots in Automated Election Systems — Under Section 2(3) of R.A. No. 9369, an "official ballot" where AES is utilized is defined as the "paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form." In a paper-based election system using PCOS machines, the picture images of ballots scanned and recorded by the PCOS are likewise "official ballots," and their printouts are the functional equivalent of the original paper ballots, admissible for revision of votes in an electoral protest.

• Electronic Evidence — Functional Equivalence Rule — Under Rule 4 of the Rules on Electronic Evidence, an electronic document is regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Copies or duplicates produced by mechanical or electronic re-recording or other equivalent techniques which accurately reproduce the original are likewise regarded as the equivalent of the original, unless a genuine question is raised as to the authenticity of the original or it would be unjust or inequitable to admit the copy in lieu of the original.

• Directory vs. Mandatory Provisions — A provision couched in the permissive term "may" is merely directory, not mandatory. The use of "may" instead of "shall" means the tribunal is not without authority to exercise its discretion to proceed, even if the conditions contemplated by the provision are not strictly met.

• "We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as scanned and recorded by the PCOS, are likewise 'official ballots' that faithfully captures in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest." — This passage articulates the core ratio decidendi of G.R. No. 199149: that PCOS-scanned ballot images qualify as "official ballots" under R.A. No. 9369 and their printouts are functionally equivalent to original paper ballots for electoral protest purposes.

• "To substitute our own judgment to the findings of the HRET will doubtless constitute an intrusion into its domain and a curtailment of its power to act of its own accord on its evaluation of the evidentiary weight of testimonies presented before it." — This passage defines the boundary of Supreme Court review over HRET factual findings, reinforcing that the Court will not reweigh evidence already evaluated by the tribunal absent grave abuse of discretion.

• "It should be pointed out, however, that the provision in question is couched in the permissive term 'may' instead of the mandatory word 'shall.' Therefore, it is merely directory, and the HRET is not without authority to opt to proceed with the revision of ballots in the remaining contested precincts even if there was no reasonable recovery made by the protestant in the initial revision." — This passage establishes the directory nature of Rule 37 of the 2011 HRET Rules, holding that the HRET retains discretion to continue revision proceedings despite the absence of a reasonable recovery in pilot precincts.

• "The Constitution mandates that the HRET 'shall be the sole judge of all contests relating to the election, returns and qualifications' of its members. By employing the word 'sole', the Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its members is intended to be its own – full, complete and unimpaired." — This passage restates the constitutional foundation of the HRET's exclusive jurisdiction, frequently cited in subsequent electoral jurisprudence to delineate the scope of judicial interference with tribunal decisions.

• Dueñas, Jr. vs. HRET, G.R. No. 191550, May 4, 2010, 620 SCRA 78 — Cited for the definition of grave abuse of discretion as the standard for Supreme Court review of electoral tribunal decisions, and for the principle that the HRET's jurisdiction is full, complete, and unimpaired. Followed.

• Roque, Jr. vs. COMELEC, G.R. No. 188456, September 10, 2009, 599 SCRA 69 — Cited for the proposition that the PCOS is a paper-based technology and that the system captures images of ballots in encrypted format which, when decrypted, are digitized representations of the ballots cast. Followed for factual background on the AES.

• Tolentino vs. COMELEC, G.R. Nos. 187958, 187961, and 187962, April 7, 2010, 617 SCRA 575 — Cited by Chato for the proposition that a full-blown trial is required concerning the integrity of ballots. Distinguished; the Court held that Chato's participation in the preliminary hearing precluded her from later complaining that the proceedings did not amount to a full-blown trial.

• Vilando vs. House of Representatives Electoral Tribunal, G.R. Nos. 192147 & 192149, August 23, 2011, 656 SCRA 17 — Cited for the principle that no challenge to the HRET's exclusive control may be sustained absent a clear showing of arbitrary and improvident use of power constituting a denial of due process or a demonstration of a very clear unmitigated error manifestly constituting grave abuse of discretion. Followed.

• Section 2(3), R.A. No. 9369 — Defines "official ballot" where AES is utilized as the "paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form." Applied to hold that PCOS-scanned picture images of ballots qualify as "official ballots."

• Section 2(7), R.A. No. 9369 — Defines "paper-based election system" as the type of AES that "use paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count." Applied to characterize the May 10, 2010 elections as paper-based.

• Section 2(8), R.A. No. 9369 — Defines "direct recording electronic election system" as one that "uses electronic ballots, records, votes by means of a ballot display provided with mechanical or electro-optical component that can be activated by the voter, processes data by means of computer programs, record voting data and ballot images, and transmits voting results electronically." Cited to distinguish the system used from DRE systems.

• Section 15, R.A. No. 8436, as amended by R.A. No. 9369 — Provides for the printing of official ballots by the National Printing Office and/or the Bangko Sentral ng Pilipinas under proper security measures for paper-based election systems. Cited by Chato to argue that only the paper ballot is the "official ballot"; the Court rejected this narrow reading.

• Rule 4, Rules on Electronic Evidence — Provides that an electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight, shown to reflect the data accurately, and that copies or duplicates produced by mechanical or electronic re-recording or equivalent techniques which accurately reproduce the original shall be regarded as the equivalent of the original. Applied by the HRET to treat picture images of ballots as equivalent to original paper ballots.

• Rule 37, 2011 HRET Rules — Governs post-revision determination of the merit or legitimacy of a protest prior to revision of counter-protest, designating pilot precincts for initial revision. Provides that the Tribunal "may" dismiss the protest if no reasonable recovery was established from the pilot precincts, or "may" proceed with revision in the remaining contested precincts. Applied to hold that the provision is directory, not mandatory, and the HRET retained discretion to continue revision.

• Rule 7, 2011 HRET Rules — Provides that the Tribunal shall have exclusive control, direction, and supervision of all matters pertaining to its own functions and operation. Applied to reinforce the HRET's exclusive constitutional jurisdiction.

• Section 10(d) and Section 11, HRET Guidelines on the Revision of Ballots — Provide that when it has been shown in a preliminary hearing that the integrity of the ballots and ballot boxes or CF cards was not preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture images of the ballots stored in the data storage device. Applied to establish the procedural framework requiring a preliminary hearing before picture images may be used.

• Article VI, Section 17, 1987 Philippine Constitution — Provides that the HRET "shall be the sole judge of all contests relating to the election, returns and qualifications" of its members. Applied as the constitutional basis for the HRET's exclusive and unimpaired jurisdiction.

Carpio, Leonardo-De Castro, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Sereno, Reyes, and Leonen, JJ., concurred. Velasco, Jr., J., took no part as HRET Chairman. Brion, J., was on leave. Peralta and Bersamin, JJ., took no part as members of the HRET.