Thursday, June 3, 2010

Current Canvassing of Presidential and Vice Presidential Votes highly Irregular and Illegal

by Nicanor Perlas

On May 31, 2010, in the halls of the House of Representatives, a document was circulating discreetly. It had no name and date. It was not part of the official records of the proceedings. Yet, this document became the legal basis for the rapid canvassing of the presidential and vice-presidential votes that soon took place starting that day and continues until today. Objections from lawyers of candidates were simply “noted”, by the Chairs. That is, the legal objections were basically ignored.

Mr. Noted is back and is back with a vengeance. But this time, Mr. Noted, in the persons of Senate President Juan Ponce Enrile and Speaker of the House, Prospero Nograles, is perpetuating a highly irregular and illegal process that borders on a betrayal of a central feature of our democracy, the election process.


The document has a long title:  “ON THE ISSUE OF USING THE PRINTED CERTIFICATES OF CANVASS AS BASIS FOR CANVASSING AND PROCLAMATION.”  For short, we will call this legal analysis the “DOCUMENT”. 

The DOCUMENT had one task: To justify canvassing of presidential and vice-presidential votes on the basis of printed certificates of canvass (COCs) alone, not the electronic votes that lay at the basis of the printed COCs.

Why did it have this task?

The National Board of Canvassers (NBOC), composed of representatives of both the House and the Senate, had a dilemma. RA 9369, the law governing the Automated Election System (AES)  of the May 2010 elections, requires elections returns (ERs) to have digital signatures. But COMELEC disabled this feature in their AES.  If the millions of votes had no digital signatures, then there would be no legal basis to canvass the votes of all candidates, including presidential and vice-presidential bets.

The specter of failure of elections loomed on the horizon. And the only way to avoid it was to legally justify using the printed COCs and not the electronic COCs.


Argument 1: No Specific Legal Provision To Use Electronic COCs

The document said: “1. There is no specific legal provision requiring Congress to use the electronically transmitted COCs to be used as the sole basis for canvassing.” Then it cites specific provisions of RA 9369 to justify its claim.

“a. Section 23 of RA 9369 requires only that the certificates of canvass be electronically transmitted to Congress but the same does not direct Congress to canvass this document.

“b. Section 20 of RA 9369 which provides that ‘the certificates of canvass transmitted electronically and digitally signed  shall be considered as official elections results and shall be used as the basis for the proclamation of candidates’, applies only to provincial, city, district, municipal BOCs and not to Congress acting as the National BOC.

“c. Section 22 of RA 9369, which refers to the canvassing of results by consolidating the COCs electronically transmitted, is directed to COMELEC as the National BOC for Senators and Party-List Representatives. There is no similar directive to Congress.”

Unfortunately, a closer look at RA 9369 and related laws shows that this legal interpretation is not correct. Worst, it is littered with half-truths that mislead those who do not closely scrutinize the document.

Refutation of Argument 1:  a. Overview Considerations

Before we go directly to Section 23 as mistakenly interpreted by the DOCUMENT above, it would be important to take a closer look at the earlier Sections of RA 9369. These earlier related Sections will provide the appropriate context and basis for the proper understanding of Section 23. As will be demonstrated immediately below, the DOCUMENT incorrectly and fatally misinterprets the language of Section 23, thereby providing a fragile, and ultimately, unstable basis for the current canvassing of the presidential and vice presidential votes by Congress acting as NBOC.

First let us turn to Section 19 of RA 9369,  a section ignored by the DOCUMENT, but which has tremendous bearing on the interpretation founded in the other sections cited by the DOCUMENT.

Near the bottom of Section 19, we find the following directive.  "The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate." [Emphasis added.]

This section provides a clear legal requirement for canvassing; that is, canvassing for ALL candidates must use “election returns transmitted electronically and digitally signed”.

Section 19, entitled “electronic returns” specifies in clear language what to do with the “printed election returns” which are derived from electronic returns. And in this specification, ALL candidates for president, vice-president, senators, party-list, House of Representatives and local officials are included. There is no special provision or exemption regarding presidential and vice-presidential candidates.

And after specifying in great detail what to do with the printed election returns, the second to the last paragraph of Section 19 ends with the specification that it is the “election returns transmitted electronically and digitally signed” that “shall be considered as official election results and shall be used as the basis for canvassing of votes and the proclamation of a candidate.” (Emphasis added.)

The printed election returns serve merely as a backup to the digitally signed electronic returns as can be seen in the statutory construction of the Section as well as in the design requirement of the AES itself.

The latter can be seen from Section 6 of RA 9369 which provides as follows:  “Minimum System Capabilities. - "The automated election system [AES] must at least have the following functional capabilities:  (f) System auditability which provides supporting documentation for verifying the correctness of reported election results;”

Clearly, digital election returns are primary and the printed election returns are secondary.  And this is also the reason why, as we shall see further below, digital election returns and electronic or digital COCs are emphasized throughout the different levels of canvassing.

Refutation of Argument 1:  b. Debunking DOCUMENT Section 20 Interpretation

Section 20 specifies the guidelines for canvassing of votes at the municipal, city, district, and provincial levels:

“The City or Municipal board of canvassers shall canvass the votes for the president, vice-president, senators, and parties, organization or coalitions participating under the party-list system by consolidating the electronically transmitted results contained in the data storage devices used in the printing of the election returns.” And a similar procedure, that is, the use of “electronically transmitted results”, is specified for district and provincial canvassing.

Section 20 ends with a repetition of Section 19: "The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate."

However, there is no longer a mention of the “canvassing of votes” as was previously done with Section 19 as discussed above. This is so because Section 20 also describes in detail how the various board of canvassers “shall canvass” the votes for president, vice-president, and other candidates by “consolidating the electronically transmitted results contained in the data storage devices used in the printing of the election returns”.

From the foregoing, it is clear that Section 19 has a broader language and more generic and all-encompassing application than Section 20.  The DOCUMENT, therefore, CANNOT use Section 20 as the basis for saying that the use of electronic ERs “applies only to provincial, city, district, municipal BOCs and not to Congress acting as the National BOC.” In fact it applies to all BOCs including Congress as NBOC for presidential and vice presidential votes.

Refutation of Argument 1:  c. Debunking DOCUMENT Section 22 Interpretation

Section 22 of RA 9369 contains the following legal provision:

“National Board of Canvassers for Senators and Party-List Representatives. - The chairman and members of the Commission on Election sitting en banc, shall compose the national board of canvassers for senators and party-list representatives. It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives." (Emphasis added.)

The DOCUMENT argues that there is “no similar directive to Congress” to use digital COCs as the basis for its canvassing.

First it must be noted that there is an admission by the DOCUMENT that the language in Section 22, including the phrase in “bold”, means that digital COCs are the basis for canvassing the votes of senatorial and party-list candidates.

Second, the DOCUMENT is plainly mistaken to conclude that “no similar directive to Congress” exists. In fact, the directive to use digital COCs exists in Section 23, but not in the language of Section 22, but with a similar effect as Section 22.

Refutation of Argument 1:  d. Debunking DOCUMENT Section 23 Interpretation
Section 23 of RA 9369 specifies as follows:  “Congress as the National Board of Canvassers for President and Vice-President. - The Senate and the House of Representatives in joint public session shall compose the national board of canvassers for president and vice-president. The certificate of canvass for president and vice-president duly certified by the board of canvassers of each province or city, shall be electronically transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty (30) days after the day of the election, open all the certificates in the presence of the Senate and the House of representatives in joint public session and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president and thereafter, proclaim the winning candidates." (Emphasis added.)
The DOCUMENT claims that “Section 23 of RA 9369 requires only that the certificates of canvass be electronically transmitted to Congress but the same does not direct Congress to canvass this document.”  The DOCUMENT is clearly mistaken in this interpretation.

In fact, Section 23 cited above clearly directs Congress that, upon receipt of the electronically transmitted COCs, it shall, as NBOC for president and vice president,

a. open all COCs electronically transmitted;
b. determine its authenticity and due execution as provided by law;
c. canvass all the results; and
d. proclaim the winning candidates.

There is zero reference in Section 23 to printed COCs.  On the contrary, there is only one kind of certificate of canvass or COC that is being discussed: electronic COCs. This is clear from the statutory construction of this Section as well as Sections 19, 20, and 22.  And as we shall see later on below, RA 9369 has other provisions connected with printed COCs.

Section 23 clearly speaks about electronic COCs and the canvassing of the same albeit in a different language than Section 22, but with the same effect. In short the language of Section 23 of RA 9369 is clearly referring to the electronic COCs, not the printed COCs. 

It is important to note in this context that RA 9369, among others, is “AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM . . .”   Note the emphasis on the word “system”, which means the whole substance and process of automation. 

RA 9369 defines the automated election system (AES) as follows:

"SEC. 2. Definition of Terms. - As used in this Act, the following terms shall mean:

"1. Automated election system, hereinafter to as AES - a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process;” (Emphasis added.)

Note the term, “canvassing” and “other electoral process”.  The intent of the law is to automate almost ever facet of the electoral process, including canvassing and “other electoral process”.

So why should the canvass for presidential and vice-presidential candidates rely on PRINTED COCs and not on electronic COCs that have the appropriate digital signature as required by both RA 9369 and RA 8792, or the Electronic Commerce Act referred to in RA 9369, infra?

Refutation of Argument 1:  e. COCs must be based on digital signatures not of PCOS machines alone but also of duly authorized election personnel.

Let us grant, for the sake of argument, that Section 23 does not require the use of digital COCs and that, instead, printed COCs can be used as the basis for canvassing the votes for president and vice president.

Unfortunately, as we have seen above, the whole logic and AES infrastructure of RA 9369, including Section 19, require the use of digital signatures as the basis for ERs and COCs. Section 19 of RA 9369 capture this reality as discussed above.

Thus, if ERs, upon which both digital and printed COCs depend on, have no digital signatures, then even printed COCs cannot be canvassed. Sections 19, 20, 22, and 23, discussed above, are very clear about this requirement.

In particular, Section 23, as discussed above, requires first the determination by Congress that the digital COCs were properly authenticated and duly executed before canvassing can proceed. And this means nothing other than that the digital ERs, upon which even printed COCs rely upon, have the proper digital signature. Without these digital signatures, the whole canvassing process based on printed COCs are flawed.

Section 23 speaks about electronic transmission of COCs.  Even this is admitted by the DOCUMENT.  Section 8 of RA 9369 givers us an idea of what this implies and entails.

Section 8: "Communication Channels for Electronic Transmissions. - all electronic transmissions by and among the AES and its related components shall utilize secure communication channels as recommended by the Advisory Council, to ensure authentication and integrity of transmission."

Section 25 of RA 9369 then specifies the authentication process of electronic or digital ERs.

Section 25:  “Authentication of Electronically Transmitted Election Results. - The manner of determining the authenticity and due execution of the certificates shall conform with the provisions of Republic Act No. 7166 as may be supplement or modified by the provision of this Act, where applicable, by appropriate authentication and certification procedures for electronic signatures as provided in Republic Act No. 8792 as well as the rules promulgated by the Supreme Court pursuant thereto." (Emphasis added.)

The RA 8792 included in Section 25 is also known as the “Electronic Commerce Act”. RA 8792 has a number of sections that are highly relevant to our present considerations.

Section 8 of RA 8792:  “Legal Recognition of Electronic Signatures.- An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if the signature is an electronic signature and proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, existed under which-

“(a) A method is used to identify the party sought to be bound and to indicate said party's access to the electronic document necessary for his consent or approval through the electronic signature;
“(b) Said method is reliable and appropriate for the purpose for which the electronic document was generated or communicated, in the light of all circumstances, including any relevant agreement;
“(c) It is necessary for the party sought to be bound, in or order to proceed further with the transaction to have executed or provided the electronic signature; and
“(d) The other party is authorized and enable to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same.”

“Section 9. Presumption Relating to Electronic Signatures-In any proceedings involving an electronic signature, it shall be presumed that,

“(a) The electronic signature is the signature of the person to whom it correlates; and
“(b) The electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically designed electronic document knows or has noticed of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances.” (Emphasis added.)

It is clear from both Sections 8 and 9 above that it is the digital signatures of duly authorized human beings that are being referred to, NOT the digital signature of the PCOS machine, as COMELEC and Smartmatic would have us believe.

One can use an authentic PCOS machine with its automatic digital signature but the receiving server will not know if official data are being transmitted by the PCOS machine. Only the digital signature of the BEI Chairman or members can certify to the authenticity of the data being transmitted by the PCOS machine.

UNFORTUNATELY, this was the VERY feature that COMELEC disabled. All ERs at the precinct level have no digital signatures!

DOCUMENT Argument 2: The Constitution has granted Congress authority to set its own rules for canvassing.

Because the DOCUMENT believes that RA 9369 was silent as to how Congress as NBOC should canvass, it justifies the use of printed COCs for canvassing as follows:

“2. Section 4 of Article VII [of the Constitution], gives Congress the authority to  ‘promulgate its rules for the canvassing of the certificates’.” (Emphasis in the original.)

Refutation of Argument 2:  One-sided interpretation of the Constitution

The same Section 4, Article VII of the Constitution, also says: “ . . . the Congress, upon determination of the authenticity and due execution thereof [of the COCs] in the manner provided by law, [in this case RA 9369] [shall] canvass the votes.

Yes, Congress has the authority to “promulgate its rules for canvassing of the certificates”.  But Congress itself has already passed the law, RA 9369. This law, as provided by the Constitution, determines the authenticity and due execution of the COCs as already elaborated above.

In short, the authenticity totally relies on the digital signatures that were removed by COMELEC. Furthermore, the same law, RA 9369, as explained above, requires Congress, as NBOC, to use electronic COCs, not printed COCs.

DOCUMENT Argument 3:  Using its Constitutional mandate, Congress deemed it proper to canvass printed COCs.

“3. Persuant to the aforementioned authority, Congress deemed it proper to canvass PRINTED COCs to comply with the provision on the determination of the authenticity and due execution under Section 37 of RA 9369.

“a. The law requires that it must be shown that ‘each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them”. Only the printed or hard copy will bear the signature and thumbmarks of the chairman and the members of the board of canvassers. {Emphasis in the original.}

“b. The electronically transmitted copies will only have the ‘digital signatures’ of the Chairman of the BOC and not the thumbmarks and signatures of the Chairman and members of the board of canvassers. The COMELEC also admitted that not all members of the BOC have these digital signatures.”

Refutation of Argument 3: Flawed Legal Interpretation of Section 37 of RA 9369

The first thing to note is that the premise of Argument 3 does not hold because RA 9369 defined the precise conditions under which Congress, acting as NBOC, will canvass the votes. And, as we have seen above, Congress cum NBOC needs to use electronic COCs.

In addition, Argument 3 of the DOCUMENT is totally flawed because it does not disclose the context of Section 37.  Section 37 reads as follows:

“SEC.37. Section 30 of Republic Act No. 7166 is hereby amended to read as follows"
"SEC. 30. Congress as the National Board of Canvassers for the Election of President and Vice President: The Commission en banc as the National Board of Canvassers for the election of senators: Determination of Authenticity and Due Execution of Certificates of Canvass.”

The RA 7166 referred to above is: “AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES”. It was promulgated on November 26, 1991, way before RA 9369, a law passed on January 23, 2007. 

Clearly this part of RA 9369 deals with the non-electronic aspects of the AES. So there will be no reference to electronic COCs.  Of necessity, therefore, it deals with issues connected with the authenticity and due execution of paper, not digital, COCs.

To make it a rationale for conducting a canvassing based on printed COCs not only ignores all the previous sections connected to automation already discussed above. It also misleads the public into believing that, indeed, it is legal to canvass on the basis of printed COCs. 

DOCUMENT Argument 4: Amending Canvass Rules Would Be Difficult

“4. Moreover, amending the Rules . . . is vested with the Joint Session of Congress . . . It would, thus, be impractical to stop the proceedings of the Joint Committee and call for the convening of the Joint Session at this time, especially now that the Joint Committee has already started opening and canvassing the COCs.“

There is a very simple response to this self-serving argument of the DOCUMENT.  Since the whole current process of canvassing printed COCs is patently illegal, as demonstrated above, then Congress, if only to maintain its integrity and self-respect, can convene a joint session of Congress, no matter how “impractical” and difficult it may be. This should be so especially since Congress got itself into this mess. One cannot continue with a process that would enfranchise the entire voting population of the Philippines.


The DOCUMENT has clearly misled the leadership of the Senate and the House of Representatives regarding the right approach to canvass the results for president and vice-president. Worse, the whole canvassing exercise of Congress acting as National BOC is patently illegal and unjust.

And we have not even tackled the equally urgent reality of the wanton and wholesale violation of COMELEC of RA 9369, violations that have made the whole 2010 elections illegal in large measure.

We are standing in a precipice. If Congress does not rapidly amend its rules, then it is likely that it will plunge the country into chaos. For we are all racing at breakneck speed towards that dreaded “failure of election” scenario.



Posted by Jesusa Bernardo

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