SC: COMELEC May Be Compelled to Allow Witnessing of Printing Ballots, Disclose VCM Transmission Diagram
The Supreme Court has ruled that the Commission on Elections (COMELEC) may be compelled, via a writ of mandamus, to allow the witnessing of the printing of ballots as well as to disclose the complete transmission diagram and data/communications network architecture of vote counting machines (VCMs).
This was the ruling of the Supreme Court En Banc, through Associate Justice Ricardo R. Rosario, as it denied the petition for a writ of mandamus filed by the National Press Club of the Philippines, Automated Election System Watch, and Guardians Brotherhood, Inc. (collectively, petitioners) which prayed that the COMELEC be compelled to implement the use of digital signatures in relation to the 2022 national and local elections.
They likewise sought for the COMELEC to disclose information on and allow access and inspection of the following: (a) printing of ballots at the National Printing Office (NPO), including the examination of the ballots already printed and the reported defective ballots; (b) configuration, preparation, and testing of the secure digital (SD) cards to be used in the VCMs through COMELEC-accredited observers in its Sta. Rosa, Laguna warehouse; (c) preparation, testing, and deployment of the VCMs; (d) National Technical Support Center and technical hubs and transmission diagram or data/communications network architecture, including all details of the transmission of the transmission router server and/or the “Meet-Me-Room” and all devices and equipment that will be used to transmit election results.
While the Court held that the issues have been mooted since the COMELEC had voluntarily fulfilled petitioners’ requests prior to the resolution of the case, the Court nevertheless proceeded to rule on the issues, taking into consideration the paramount public interest involved; the formulation of controlling principles to guide the bench, the bar and the public; and the nature of the case of being capable of repetition, yet evading review.
Implement digital signatures
Reiterating its 2012 ruling in Capalla v. COMELEC, the Court held that the COMELEC is not required to have the election returns digitally signed by the Board of Election Inspectors (BEI) because the digital signatures generated by the VCMs are sufficient compliance to Republic Act No. (RA) 8436, or the Automated Election System (AES) Law, as amended.
“One of the hallmarks of the automated election system is the digital signature of BEI members on the election returns, and of members of the Board of Canvassers on the certificates of canvass. However, since automated elections began in the Philippines in 2010, the digital signature on the election returns have come from the VCMs and not from the teachers who comprise the BEI,” said the Court.
The Court also cited its previous ruling in AES Watch v. COMELEC that the adoption of another method to digitally sign the election results is subject to the COMELEC’s sound judgment. “The exercise of discretion on how to implement the chosen AES must be accorded with the presumption of regularity and should be respected,” stressed the Court.
Printing of ballots
The Court held that the COMELEC is duty-bound under Section 187 of the Omnibus Election Code to allow designated watchers to witness the printing of the ballots.
“As long as the request has been made…it is the COMELEC’s ministerial duty to allow the designated watcher/s to observe the printing of the ballots,” the Court ruled.
The Court also dismissed the COMELEC’s argument that there are critical areas at the NPO that are off-limits due to security reasons. “[U]nder the law, the designated watchers are even entitled to guard the premises of the printer,” the Court noted.
The Court further stressed that the law does not limit the ways by which the COMELEC may allow the watchers to witness the printing process. “Indeed, the now ubiquitous livestream format, among other methods, has helped strike a balance between ensuring the integrity of the ballots and transparency of the election process…This is not to say, however, that on-site viewing of the printing process may be dispensed with entirely.”
Configuration, preparation, testing of SD cards, VCMs
The Court ruled that the COMELEC may not be compelled to allow the witnessing of the configuration and preparation of SD cards and VCMs as the AES Law does not specifically enjoin the COMELEC to do so. The law’s mandate, rather, is only with respect to their examination and testing, which takes place after the configuration of the devices.
“The fact that the law commands the COMELEC to provide test ballots and test forms is a clear indication that the examination and testing take place after the configuration of the devices and not during or before said configuration. Certainly, it would be absurd to allow the examination and testing of unconfigured equipment or devices,” ruled the Court.
Thus, what may be allowed is the examination and testing by the public of SD cards and VCMs, subject to reasonable security protocols.
Transmission diagram of VCMs
The Court further ruled that the COMELEC may be compelled to disclose the complete transmission diagram and data/communications network architecture of the VCMs.
The Court stressed that the credibility of the AES is directly proportional to the transparency of the entire process, from the preparation of the ballots to the canvassing of votes.
While the State aims to protect the secrecy and sanctity not only of the ballot but also of all election, consolidation, and transmission documents, this must be interpreted not in isolation, but in relation to the need for the process to be transparent and credible, and in line with the policy of ensuring not only free, orderly, honest, peaceful and credible elections, but also informed elections, ruled the Court.
As the VCM transmission diagram are matters of public concern and interest, they should be made available by the COMELEC, especially considering that unauthorized transmissions and communications to and from network nodes plotted in the diagram or architecture may call into question the integrity of the elections, stressed the Court.
However, as for petitioners’ request for “all details of the transmission of the transmission router server and/or the ‘Meet-Me-Room,’” the Court found the prayer too vague and broad to determine which details or documents the COMELEC should disclose.
The Court held that it cannot compel the COMELEC to reveal all details, some of which may contain confidential information which, if divulged, could pose serious security risks.
Neither can the COMELEC be compelled to allow physical access to its hubs, servers, and data centers. Noting that the constitutional policy of full public disclosure of transactions involving public interest and the right to information are restricted by reasonable conditions, the Court held that the AES Law penalizes the act of causing access to facilities whether classified or declassified and whether or not said acts affect the electoral process or results, stressing that such acts are punishable regardless of authorization.
“At most, the COMELEC may be compelled to provide information regarding its technical hubs and data centers, as it had already done so, but it cannot be compelled to allow what the law clearly prohibits. Unlike access to the premises of the printer for purposes of guarding the same or witnessing the printing and distribution of the ballots and returns, there is no clear legal right to allow physical access, to the technical hubs or data centers of the AES,” concluded the Court. (Courtesy of the Supreme Court Public Information Office)
FULL TEXT of G.R. No. 259354 (National Press Club v. COMELEC, June 13, 2023) at: https://sc.judiciary.gov.ph/259354-national-press-club-of-the-philippines-automated-election-system-watch-and-guardians-brotherhood-inc-vs-commission-on-elections/
FULL TEXT of the Separate Concurring Opinion of Senior Associate Justice Marvic M.V.F. Leonen at: https://sc.judiciary.gov.ph/259354-separate-concurring-opinion-justice-marvic-m-v-f-leonen/
FULL TEXT of the Separate Concurring Opinion of Associate Justice Alfredo Benjamin S. Caguioa at: https://sc.judiciary.gov.ph/259354-separate-concurring-opinion-justice-alfredo-benjamin-s-caguioa/
FULL TEXT of the Concurrence of Associate Justice Amy C. Lazaro-Javier at: https://sc.judiciary.gov.ph/259354-concurrence-justice-amy-c-lazaro-javier/