G.R. No.

222731, March 08, 2016

BAGUMBAYAN-VNP MOVEMENT, INC., AND RICHARD J. GORDON, AS CHAIRMAN
OF BAGUMBAYAN-VNP MOVEMENT, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.
RESOLUTION
LEONEN, J.:
A petition for mandamus may be granted and a writ issued when an agency
"unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office."1

Petitioners Bagumbayan Volunteers for a New Philippines Movement, Inc.

(Bagumbayan-VNP, Inc.) and Former Senator Richard J. Gordon (Gordon) filed this
Petition2 for mandamus before this court to compel respondent Commission on
Elections to implement the Voter Verified Paper Audit Trail security feature.

Bagumbayan-VNP, Inc. is a non-stock and non-profit corporation.3 It operates

through Bagumbayan Volunteers for a New Philippines,4 a national political party
duly registered with the Commission on Elections.5

Former Senator Gordon is a registered voter and taxpayer.6 He is an official candidate

for the Senate of the Philippines7 and is the Chairperson of Bagumbayan-VNP, Inc.
Gordon authored Republic Act No. 9369, the law that amended Republic Act No. 8436,
otherwise known as the Automated Election System Law.8

The Commission on Elections is a government entity9 "vested by law to enforce and

administer all laws relative to the conduct of elections in the country."10

On December 22, 1997, Republic Act No. 843611 authorized the Commission on

Elections to use an automated election system for electoral exercises.12 After almost a
decade, Republic Act No. 936913 amended Republic Act No. 8436. Republic Act No.
9369 introduced significant changes to Republic Act No. 8436, Batas Pambansa Blg.
881, otherwise known as the Omnibus Election Code, and other election-related
statutes.14

Automation is hailed as a key "towards clean and credible elections," reducing the long
wait and discouraging cheating.15 In 2010 and 2013, the Commission on Elections
enforced a nationwide automated election system using the Precinct Count Optical
Scan (PCOS) machines. For the 2016 National and Local Elections, the Commission on
Elections has opted to use the Vote-Counting Machine.16 The vote-counting machine
is a "paper-based automated election system,"17 which is reported to be "seven times
faster and more powerful than the PCOS because of its updated
processor."18 Likewise, it is reported to have more memory and security
features,19 and is "capable of producing the Voter Verification Paper Audit Trail
(VVPAT)."20 This VVPAT functionality is in the form of a printed receipt and a touch
screen reflecting the votes in the vote-counting machine.21

Petitioners allege that under Republic Act No. 8436, as amended by Republic Act No.
9369, there are several safeguards or Minimum System Capabilities to ensure the
sanctity of the ballot. Among these is the implementation of the VVPAT security
feature, as found in Section 6(e), (f), and (n).

The full text of Section 6 is as follows:

chanRoblesvirtualLawlibrary
SEC. 6. Minimum System Capabilities. - The automated election system must at least
have the following functional capabilities:

(a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in the tabulation,

consolidation/canvassing, electronic transmission, and storage of results;

(c) Error recovery in case of non-catastrophic failure of device;

(d) System integrity which ensures physical stability and functioning of the vote
recording and counting process;

(e) Provision for voter verified paper audit trail;

(f) System auditability which provides supporting documentation for verifying the
correctness of reported election results;

(g) An election management system for preparing ballots and programs for use in the
casting and counting of votes and to consolidate, report and display election result in
the shortest time possible;

(h) Accessibility to illiterates and disable voters;

(i) Vote tabulating program for election, referendum or plebiscite;

(j) Accurate ballot counters;

(k) Data retention provision;

(l) Provide for the safekeeping, storing and archiving of physical or paper resource
used in the election process;

(m) Utilize or generate official ballots as herein defined;

(n) Provide the voter a system of verification to find out whether or not the machine
has registered his choice; and
(o) Configure access control for sensitive system data and function. (Emphasis
supplied).
Petitioners claim that VVPAT "consists of physical paper records of voter ballots as
voters have cast them on an electronic voting system."22 Through it, the voter can
verify if the choices on the paper record match the choices that he or she actually
made in the ballot.23 The voter can confirm whether the machine had actually read
the ballot correctly. Petitioners seek to compel the Commission on Elections to have
the vote-counting machine issue receipts once a person has voted.

According to petitioners, the VVPAT "will ensure transparency and reduce any attempt
to alter the results of the elections."24 There will be "an electronic tally of the votes
cast" or the vote stored in the vote-counting machine, as well as "a paper record of the
individual votes" cast or the VVPAT receipt.25 Should there be any doubt, "the
electronically generated results . . . can then be audited and verified through a
comparison . . . with these paper records."26

In the Terms of Reference for the 2016 National and Local Elections Automation
Project, the Commission on Elections lists the Minimum Technical Specifications of
the Optical Mark Reader or Optical Scan System, precinct-based technologies that the
poll body shall accept.27cralawred

Component 1 (B), subparagraphs (5) and (19) states as follows:

chanRoblesvirtualLawlibrary

5. The system's hardware shall have a display panel that is capable to display
customizable messages or prompts of each stage of the process execution,
including prompts and messages for user interaction purposes.

. . . 

19. The system shall have a vote verification feature which shall display and print
the voter's choices, which can be enabled or disabled in the configuration using
the [Election Management System]. (Emphasis supplied)

Petitioners claim that the Commission on Elections refuses to implement the VVPAT
function based on fears that the security feature may aid in vote-buying, and that the
voting period may take longer.28 On February 9, 2016, petitioners read from ABS-
CBN News Online that with a vote of 7-0, the Commission on Elections En Banc
decided not to implement the VVPAT for the 2016 Elections.29 Petitioners attached a
copy of the article.30 Other news reports state that the Commission on Elections ruled
similarly against the voting receipts in 2010 and 2013.31

At the Joint Congressional Oversight Committee on the Automated Election System on

February 16, 2016,32 the Commission on Elections, through its Chairperson Andres
D. Bautista (Chairperson Bautista), supposedly gave its reasons for refusing to issue
paper receipts. First, "politicians can use the receipts in vote buying[;]" second, it may
increase voting time to five to seven hours in election precincts:33
[T]he poll body has decided against printing the receipt because it might be used for
vote buying and that it would result in the vote-counting process being extended from
six to seven hours since it takes about 13 seconds to print a receipt, meaning each
machine would have to run for that long for the receipts.

Bautista said another "big concern" is that "there might be losing candidates who
might question the results, basically instructing their supporters that when the
machine prints out the receipt, regardless of what the receipt says, they will say that
it's not correct."34ChanRoblesVirtualawlibrary
On February 11, 2016, the Commission on Elections issued Resolution No.
1005735 providing for "rules and general instructions on the process of testing and
sealing, [as well as] voting, counting, and transmission of election results."36 Adopting
Resolution No. 10057 by a vote of 7-0, the Commission on Elections En Banc made no
mention using VVPAT receipts for the 2016 national elections.

Petitioners argue that the Commission on Elections' fears are "baseless and
speculative."37 In assailing the Commission on Elections' reasons, petitioners cite the
Position Paper38 of alleged automated elections expert, Atty. Glenn Ang Chong (Atty.
Chong). Atty. Chong recommended that the old yellow ballot boxes be used alongside
the voting machine. The VVPAT receipts can be immediately placed inside the old
ballot boxes.39

After the voter casts his or her vote, he or she gets off the queue and walks to where
the old ballot box is. There, the voter may verify if the machine accurately recorded the
vote; if so, the voter drops the VVPAT receipt into the old ballot box.40 Should there be
any discrepancy, the voter may have it duly recorded with the poll watchers for
analysis and appropriate action.41 The poll watchers must ensure that all receipts are
deposited into the old ballot box.42 This will guarantee that no voter can sell his or
her vote using the receipt.43

At the end of the polling, the old ballot boxes shall be turned over to the accredited
citizens' arm or representatives of the public for the manual verification count of the
votes cast. A member of the Board of Election Inspectors may supervise the count. The
result of the manual verification count (using the old ballot boxes) shall be compared
with that of the automated count (saved in the vote-counting machine).44

Petitioners add that during Senate deliberations,45 the main proponent of the

amendatory law, Former Senator Gordon, highlighted the importance of "an audit trail
usually supported by paper[.]"46

On November 10, 2015, Bagumbayan-VNP, Inc. sent Commission on Elections

Chairperson Bautista a letter demanding the implementation of the VVPAT feature for
the May 9, 2016 Elections.47 However, the Commission on Elections never answered
the letter.48

According to petitioners, the inclusion of VVPAT, a "mandatory requirement under the

automated election laws, [has been] flagrantly violated by [COMELEC] during the 2010
and 2013 Elections." They claim that the previous demands made on the Commission
on Elections to reactivate the VVPAT security feature "fell on deaf ears."49 In the 2010
and 2013 Elections, all a voter received from the voting machines were the words,
"Congratulations! Your vote has been counted," or an otherwise similar phrase.50

Petitioners claim that under Section 28 of Republic Act No. 9369, amending Section
35 of Republic Act No. 8436, anyone "interfering with and impeding . . . the use of
computer counting devices and the processing, storage, generation and transmission
of election results, data or information" commits a felonious act.51 The Commission
on Elections allegedly did so when it refused to implement VVPAT.52

In view of the foregoing, petitioners filed a Special Civil Action for Mandamus under
Rule 65, Section 3 of the Rules of Court. They ask this court to compel the
Commission on Elections to comply with the provisions of Section 6(e), (f), and (n) of
Republic Act No. 8436, as amended.

Petitioners argue that mandamus is proper to "enforce a public right" and "compel the
performance of a public duty."53 Under Article VIII, Section 5(1) of the Constitution,
this court has original jurisdiction over petitions for mandamus. In addition, Rule 65,
Section 4 of the Rules of Court allows for a civil action for mandamus to be directly
filed before this court.54 There is no reglementary period in a special civil action for
mandamus.55

According to petitioners, the law prescribes the "minimum" criteria of adopting VVPAT
as one of the security features. The use of the word "must"56 makes it mandatory to
have a paper audit "separate and distinct from the ballot."57 The Commission on
Elections allegedly has neither leeway "nor right to claim that the ballot itself is the
paper audit trail."58 Likewise, the words, "voter verified" in VVPAT means the voter,
not the Commission on Elections, must be the one verifying the accuracy of the vote
cast.59

Petitioners conclude that the Commission on Elections' "baseless fear of vote buying"
is no excuse to violate the law. "There is greater risk of cheating on a mass scale if the
VVPAT were not implemented because digital cheating" is even more "difficult to detect
. . . than cheating by isolated cases of vote buying."60

In the Resolution dated February 23, 2016, this court required the Commission on
Elections to comment on the petition within a non-extendible period of five (5) days
after receiving the notice.
Instead of submitting its Comment, the Commission on Elections filed a Motion for
Additional Time to File Comment through the Office of the Solicitor General.61 The
Office of the Solicitor General alleged that it "has not yet received a copy of the Petition
and has yet to obtain from COMELEC the documents relevant to this case."62

It is not often that this court requires the filing of a comment within a non-extendible
period. This is resorted to when the issues raised by a party is fundamental and the
ambient circumstances indicate extreme urgency. The right of voters to verify whether
vote-counting machines properly recorded their vote is not only a statutory right; it is
one that enables their individual participation in governance as sovereign. Among all
government bodies, the Commission on Elections is the entity that should appreciate
how important it is to respond to cases filed by the public to enable these rights. It
perplexes this court that the Commission on Elections failed to immediately transmit
relevant documents to the Office of the Solicitor General to allow them to respond
within the time granted.

The Office of the Clerk of Court En Banc noted that both the Commission on Elections
and the Office of the Solicitor General were already furnished with a copy of the
Petition when this court ordered them to file a comment.63 Due to the urgency to
resolve this case, this court denied the Commission on Elections' Motion. This court
cannot fail to act on an urgent matter simply because of the non-compliance of the
Commission on Elections and the Office of the Solicitor General with its orders. This
court cannot accept the lackadaisical attitude of the Commission on Elections and its
counsel in addressing this case. This court has been firm that as a general rule,
motions for extension are not granted, and if granted, only for good and sufficient
cause.64 Counsels, even those from government, should not assume that this court
will act favorably on a motion for extension of time to file a pleading.65

For this court's resolution is whether the Commission on Elections may be compelled,
through a writ of mandamus, to enable the Voter Verified Paper Audit Trail system
capability feature for the 2016 Elections.

We grant the Petition.

Mandamus is the relief sought "[w]hen any tribunal corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station," and "there is no other plain,
speedy and adequate remedy in the ordinary course of law."66

Through a writ of mandamus, the courts "compel the performance of a clear legal duty
or a ministerial duty imposed by law upon the defendant or respondent"67 by
operation of his or her office, trust, or station. The petitioner must show the legal basis
for the duty, and that the defendant or respondent failed to perform the duty.

Petitioners argue that the Commission on Elections unlawfully neglected to perform its
legal duty of fully implementing our election laws, specifically Republic Act No. 8436,
Section 6(e), (f), and (n), as amended by Republic Act No. 9369:68
SEC. 6. Minimum System Capabilities. — The automated election system must at
least have the following functional capabilities:

....

(e)  Provision for voter verified paper audit trail;

(f) System auditability which provides supporting documentation for verifying the
correctness of reported election results;

....

(n) Provide the voter a system of verification to find out whether or not the machine
has registered his choice;
Commission on Elections Resolution No. 10057 promulgated on February 11, 2016
did not include mechanisms for VVPAT. Under Part III of the Resolution, it merely
stated:
chanRoblesvirtualLawlibrary
SEC. 40. Manner of voting. -

a. The voter shall:

Using a ballot secrecy folder and the marking pen provided by the Commission, fill
his/her ballot by fully shading the circle beside the names of the candidates and the
party, organization or coalition participating in the party-list system of representation,
of his/her choice; and
After accomplishing his/her ballot, approach the VCM, insert his/her ballot in the
ballot entry slot;
The VCM will display "PROCESSING.../PAKIHINTAY... KASALUKUYANG
PINOPROSESO";
The ballot shall automatically be dropped inside the ballot box. The VCM will then
display the message "YOUR VOTE HAS BEEN CAST/ANG IYONG BOTO AY
NAISAMANA."
The VCM will display the message "AMBIGUOUS MARK DETECTED" if the ovals are
not properly shaded or an unintentional mark is made. It will display the message
"AMBIGUOUS MARKS DETECTED/MAY MALABONG MARKA SA BALOTA." The
following options shall be provided "TO CAST BALLOT PRESS/PARA IPASOK ANG
BALOTA, PINDUTIN" or "TO RETURN BALLOT, PRESS/PARA IBALIK ANG BALOTA,
PINDUTIN." Press the "TO RETURN BALLOT, PRESS/PARA IBALIK ANG BALOTA,
PINDUTIN" to return the ballot to the voter. Let the voter review the ballot and ensure
that the ovals opposite the names of the candidate voted for are fully shaded.
In case of illiterate voters, PWD voters who are visually-impaired, and senior citizens
(SCs) who may need the use of headphones, the BEI shall insert the headphones so
they can follow the instructions of the VCM.
b. The poll clerk/support staff shall:
Monitor, from afar, the VCM screen to ensure that the ballot was successfully
accepted;
Thereafter, whether or not the voter's ballot was successfully accepted, apply indelible
ink to the voter's right forefinger nail or any other nail if there be no forefinger nail;
and
Instruct the voter to return the ballot secrecy folder and marking pen, and then leave
the polling place.
In a press conference last March 4, 2016, Commission on Elections Chairperson
Andres Bautista manifested that the Commission on Elections decided "to err on the
side of transparency" and resolved to allow voters to have 15-second on-screen
verification of the votes they have casted through the vote-counting
machine.69 Allowing on-screen verification is estimated to add two (2) hours to the
voting period on May 9, 2016. As reported, the meeting of the Commission on
Elections En Banc to pass this Resolution was on March 3, 2016, three (3) days after
they were required to file a comment before this court.

Nonetheless, the inaction of the Commission on Elections in utilizing the VVPAT

feature of the vote-counting machines fails to fulfill the duty required under Republic
Act No. 8436, as amended.

Article XI(C), Section 2 of the 1987 Constitution empowered the Commission of

Elections to "[e]nforce and administer all laws and regulations relative to the conduct
of an election." One of the laws that the Commission on Elections must implement is
Republic Act No. 8436, as amended by Republic Act No. 9369, which requires the
automated election system to have the capability of providing a voter-verified paper
audit trail.

Based on the technical specifications during the bidding, the current vote-counting
machines should meet the minimum system capability of generating a VVPAT.
However, the Commission on Elections' act of rendering inoperative this feature runs
contrary to why the law required this feature in the first place. Under Republic Act No.
8436, as amended, it is considered a policy of the state that the votes reflect the
genuine will of the People.70 The full text of the declaration of policy behind the law
authorizing the use of an automated election system states:
chanRoblesvirtualLawlibrary
SECTION 1. Declaration of Policy. — It is the policy of the State to ensure free, orderly,
honest, peaceful, credible and informed elections, plebiscites, referenda, recall and
other similar electoral exercises by improving on the election process and adopting
systems, which shall involve the use of an automated election system that will ensure
the secrecy and sanctity of the ballot and all election, consolidation and transmission
documents in order that the process shall be transparent and credible and that the
results shall be fast, accurate and reflective of the genuine will of the people.

The State recognizes the mandate and authority of the Commission to prescribe the
adoption and use of the most suitable technology of demonstrated capability taking
into account the situation prevailing in the area and the funds available for the
purpose.
By setting the minimum system capabilities of our automated election system, the law
intends to achieve the purposes set out in this declaration. A mechanism that allows
the voter to verify his or her choice of candidates will ensure a free, orderly, honest,
peaceful, credible, and informed election. The voter is not left to wonder if the machine
correctly appreciated his or her ballot. The voter must know that his or her sovereign
will, with respect to the national and local leadership, was properly recorded by the
vote-counting machines.

The minimum functional capabilities enumerated under Section 6 of Republic Act

8436, as amended, are mandatory. These functions constitute the most basic
safeguards to ensure the transparency, credibility, fairness and accuracy of the
upcoming elections.

The law is clear. A "voter verified paper audit trail" requires the following: (a) individual
voters can verify whether the machines have been able to count their votes; and (b)
that the verification at minimum should be paper based.

There appears to be no room for further interpretation of a "voter verified paper audit
trail." The paper audit trail cannot be considered the physical ballot, because there
may be instances where the machine may translate the ballot differently, or the voter
inadvertently spoils his or her ballot.

In Maliksi v. Commission on Elections,71 the losing mayoralty candidate questioned

the result of the elections. Upon inspection of the physical ballots, several votes were
invalidated due to the presence of double-shading. However, when the digital printouts
of the ballots were checked, the questioned ballots only had single shade. The physical
ballots were tampered to invalidate several votes.

The situation in Maliksi could have been avoided if the Commission on Elections

utilized the paper audit trail feature of the voting machines. The VVPAT ensures that
the candidates selected by the voter in his or her ballot are the candidates voted upon
and recorded by the vote-counting machine. The voter himself or herself verifies the
accuracy of the vote. In instances of Random Manual Audit72 and election protests,
the VVPAT becomes the best source of raw data for votes.

The required system capabilities under Republic Act No. 8436, as amended, are
the minimum safeguards provided by law. Compliance with the minimum system
capabilities entails costs on the state and its taxpayers. If minimum system
capabilities are met but not utilized, these will be a waste of resources and an affront
to the citizens who paid for these capabilities.

It is true that the Commission on Elections is given ample discretion to administer the
elections, but certainly, its constitutional duty is to "enforce the law." The Commission
is not given the constitutional competence to amend or modify the law it is sworn to
uphold. Section 6(e), (f), and (n) of Republic Act No. 8436, as amended, is law. Should
there be policy objections to it, the remedy is to have Congress amend it.

The Commission on Elections cannot opt to breach the requirements of the law to
assuage its fears regarding the VVPAT. Vote-buying can be averted by placing proper
procedures. The Commission on Elections has the power to choose the appropriate
procedure in order to enforce the VVPAT requirement under the law, and balance it
with the constitutional mandate to secure the secrecy and sanctity of the ballot.73

We see no reason why voters should be denied the opportunity to read the voter's
receipt after casting his or her ballot. There is no legal prohibition for the Commission
on Elections to require that after the voter reads and verifies the receipt, he or she is
to leave it in a separate box, not take it out of the precinct. Definitely, the availability
of all the voters' receipts will make random manual audits more accurate.

The credibility of the results of any election depends, to a large extent, on the
confidence of each voter that his or her individual choices have actually been counted.
It is in that local precinct after the voter casts his or her ballot that this confidence
starts. It is there where it will be possible for the voter to believe that his or her
participation as sovereign truly counts.chanrobleslaw

WHEREFORE, the Petition for Mandamus is GRANTED. The Commission on Elections

is ORDERED to enable the vote verification feature of the vote-counting machines,
which prints the voter's choices without prejudice to the issuance of guidelines to
regulate the release and disposal of the issued receipts in order to ensure a clean,
honest, and orderly elections such as, but not limited to, ensuring that after voter
verification, receipts should be deposited in a separate ballot box and not taken out of
the precinct.

SO ORDERED.