PCOS Meets Minimum Capabilities Standards

Antecedents    Procedural Grounds    Substantive Issues   Ruling

RULING

Pilot Testing Not A Pre-condition to Full Automation

PCOS Meets Minimum Capabilities Standards

No Abdication of Comelec’s Mandate and Responsibility

PCOS Meets Minimum Capabilities Standards 

         

          As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS machines do not satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific point, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.^[75]  In this particular regard, petitioners allege that, based on Smartmatic’s website, the PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% accuracy in the counting of votes.^[76]

The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing features referred to by petitioners are pars. (b) and (j).  In full, Sec. 7 of RA 8436, as amended, reads:   

 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 disabled 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;

(a)    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.

            In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met.  The evaluation system shall be developed with the assistance of an advisory council.     

           

          From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure compliance with the above minimum systems capabilities.  

          The SBAC Memorandum^[77] of June 03, 2009, as approved by Comelec Res. 8608,^[78] categorically stated that the SBAC-TWG submitted its report that TIM/Smartmatic’s proposed systems and machines PASSED all the end-to-end demo tests using the aforementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%.  As appearing in the SBAC-TWG report, the corresponding answers/remarks to each of the 26 individual items are as herein indicated:^[79]

ITEM	REQUIREMENT	REMARK/DESCRIPTION
1	Does the system allow manual feeding of a ballot into the PCOS machine?	Yes.  The proposed PCOS machine accepted the test ballots which were manually fed one at a time.
2	Does the system scan a ballot sheet at the speed of at least 2.75 inches per second?	Yes.  A 30-inch ballot was used in this test.  Scanning the 30-inch ballot took 2.7 seconds, which translated to 11.11inches per second.
3	Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)?	Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images files contained the images of the front and back sides of the ballot, totaling to 2,000 ballot side. To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast.
4	Is the system a fully integrated single device as described in item no. 4 of Component 1-B?	Yes. The proposed PCOS is a fully integrated single device, with built-in printer and built-in data communications ports (Ethernet and USB).
5	Does the system have a scanning resolution of at least 200 dpi?	Yes. A portion of a filled up marked oval was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi. File properties of the decrypted image file also revealed 200 dpi.
6	Does the system scan in grayscale?	Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19.
7	Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple user access levels?	Yes. The system required the use of a security key with different sets of           passwords/PINs for Administrator and Operator users.
8	Does the system have an electronic display?	Yes. The PCOS machine makes use of an LCD display to show information: ·                  if a ballot may be inserted into the machine; ·                  if a ballot is being processed; if a ballot is being rejected; ·                  on other instructions and information to the voter/operator.
9	Does the system employ error handling procedures, including, but not limited to, the use of error prompts and other related instructions?	Yes. The PCOS showed error messages on its screen whenever a ballot is   rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error.
10	Does the system count the voter’s vote as marked on the ballot with an accuracy rating of at least 99.995%?	Yes. The two rounds of tests were conducted for this test using only valid marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error. 625 ballots with 32 marks each were used for this test. During the comparison of the PCOS-generated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated. To prepare for other possible missed out marks,650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy.
11	Does the system detect and reject fake or spurious, and previously scanned ballots?	Yes. This test made use of one (1) photocopied ballot and one (1) “re-created” ballot. Both were rejected by the PCOS.
12	Does the system scan both sides of a ballot and in any orientation in one pass?	Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4)  portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured.
13	Does the system have necessary safeguards to determine the authenticity of a ballot, such as, but not limited to, the use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be recognized by the system?	Yes. The system was able to recognize if the security features on the ballot are “missing”. Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codes  and timing marks were used and were all rejected by the PCOS machine. The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on top portion of the ballot causing the rejection of the ballot.
14	Are the names of the candidates pre-printed on the ballot?	Yes. The Two sample test ballots of different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide. The first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question. The other showed 609 pre-printed candidate names, also for fourteen (14) positions  including three (3) survey questions.
15	Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law?	Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609.          This type of test ballot was also used for test voting by the public, including members of the media. Arial Narrow, font size 10, was used in the printing of the candidate names.
16	Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine.
17	Does the system recognize partial shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: ·   top half shade; ·   bottom half shade; ·   left half shade; and ·   right half shade These partial shade marks were all recognized by the PCOS machine
18	Does the system recognize check (ü)marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. One (1) test ballot with one check (ü) mark, using a pencil, was used for this test.       The mark was recognized successfully.
19	Does the system recognize x marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. One (1) test ballot with one x mark, using a pencil, was used for this test. The mark was recognized successfully.
20	Does the system recognize both pencil and ink marks on the ballot?	Yes. The 1000 ballots used in the accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder. A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS  machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots.
21	In a simulation of a system shut down, does the system have error recovery features?	Yes. Five (5) ballots were used in this test. The power cord was pulled from the PCOS while the 3rd ballot was in the middle of the scanning procedure, such that it was left “hanging” in the ballot reader. After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The “hanging” 3rd ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized.
22	Does the system have transmission and   consolidation/canvassing capabilities?	Yes. The PCOS was able to transmit to the CCS during the end-to-end demonstration using GLOBE prepaid Internet kit.
23	Does the system generate a backup copy of the generated reports, in a removable data storage device?	Yes. The PCOS saves a backup copy of the ERs, ballot images, statistical report and audit log into a Compact Flash (CF) Card.
24	Does the system have alternative power sources, which will enable it to fully operate for at least 12 hours?	Yes. A 12 bolt 18AH battery lead acid was used in this test. The initial test had to be repeated due to a short circuit, after seven (7) hours from start-up without ballot scanning. This was explained by TIM-Smartmatic to be caused by non-compatible wiring of the battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatic’s explanation. The PCOS machine was connected to regular power and started successfully. The following day, the “re-test” was completed in 12 hours and 40 minutes xxx 984 ballots were fed into the machine. The ER, as generated by the PCOS was compared with predetermined result, showed 100% accuracy.
25	Is the system capable of generating and printing reports?	Yes. The PCOS prints reports via its built-in printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log.
26	Did the bidder successfully demonstrate EMS, voting counting, consolidation/canvassing and transmission?	Yes. An end-to-end demonstration of all proposed systems was presented covering: importing of election data into the EMS; creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results to the: [1] from the PCOS to city/municipal CCS and the central server. [2] from the city/municipal CCS to the provincial CCS. [3] from the provincial CCS to the national CCS; receipt and canvass of transmitted results: [1] by the city/municipal CCS from the PCOS. [2] by the provincial CCS from the city/municipal CCS. [3] by the national CCS from the provincial CCS; receipt of the transmittal results by the central server from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability of the PCOS machines, although the tests, as Comelec admits,^[80] were done literally in the Palacio del Governador building, where a room therein simulated a town, the adjoining room a city, etc.  Perusing the RFP, however, the real worth of the PCOS system and the machines will of course come after they shall have been subjected to the gamut of acceptance tests expressly specified in the RFP, namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing procedure of all PCOS and CCS units using the actual Election Day machine configuration.^[81]

 Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit that the web page they appended to their petition, showing a 2% to 10% failing rate, is no longer current.^[82]  And if they bothered to examine the current website of Smartmatic specifically dealing with its SAES 1800, the PCOS system it offered, they would have readily seen that the advertised accuracy rating is over “99.99999%.”^[83]  Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2% to 10% failure rate applied to “optical scanners” and not to SAES.  Yet the same page discloses that the SAES has “100%” accuracy.  Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not belabor this and the equally irrelevant estoppel principle petitioners impose on us.

Intervenor Cuadra’s concern relates to the auditability of the election results.  In this regard, it may suffice to point out that PCOS, being a paper-based technology, affords audit since the voter would be able, if need be, to verify if the machine had scanned, recorded and counted his vote properly.  Moreover, it should also be noted that the PCOS machine contains an LCD screen, one that can be programmed or configured to display to the voter his votes as read by the machine. ^[84] 

RULING:

Pilot Testing Not A Pre-condition to Full Automation

PCOS Meets Minimum Capabilities Standards

No Abdication of Comelec’s Mandate and Responsibility

Antecedents    Procedural Grounds    Substantive Issues   Ruling

G.R. No. 186224

EN BANC

G.R. No. 186224

August 25, 2009

CONSTANCIO D. PACANAN, JR.,

Petitioner,

- versus -

COMMISSION ON ELECTIONS and

FRANCISCO M. LANGI, SR.,

Respondents.

x---------------------------------------------------------x

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Before the Court is a petition for certiorari which seeks to set aside 1) the Order[1] dated March 17, 2008 of the Commission on Elections (Comelec) First Division and 2) the Resolution[2] dated January 21, 2009 of the Comelec En Banc dismissing petitioner Constancio D. Pacanan, Jr.’s appeal from the Decision[3] of the Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, in Election Case No. 07-1, which declared private respondent Francisco M. Langi, Sr. as the winning Mayor of Motiong, Samar.

In the Order of March 17, 2008, the Comelec First Division dismissed the appeal for failure to pay the correct appeal fee as prescribed by the Comelec Rules of Procedure within the five-day reglementary period.

In the assailed Resolution dated January 21, 2009, the Comelec En Banc denied petitioner’s motion for reconsideration, declaring that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time, and that the Comelec First Division was correct in dismissing the said appeal.

The antecedent facts are as follows:

Petitioner Constancio D. Pacanan, Jr. and private respondent Francisco M. Langi, Sr. were candidates for mayor in the municipality of Motiong, Samar during the May 14, 2007 elections. After the canvassing of votes, the Municipal Board of Canvassers (MBC) of Motiong, Samar proclaimed petitioner as the duly elected mayor, having garnered a total of 3,069 votes against private respondent’s 3,066 votes.

Thereafter, private respondent filed with the RTC a Protest[4] dated May 25, 2007 which was docketed as Election Case No. 07-1, contesting the results of the elections in ten (10) of the forty-nine (49) precincts in Motiong, Samar, and alleging acts of violence and intimidation and other election irregularities in the appreciation of the votes by the MBC. Thereafter, petitioner filed his Verified Answer with Counter-Protest[5] dated June 4, 2007, asserting that private respondent’s allegations of threat and intimidation, fraud and other irregularities in the conduct of elections were mere allegations unsupported by any documentary evidence. Petitioner also disputed the election results with respect to seven (7) precincts.

On January 7, 2008, the RTC rendered a decision[6] in Election Case 07-1, which declared private respondent as the winner in the May 14, 2007 mayoralty race for Motiong, Samar with a plurality of six (6) votes, viz:

Wherefore, in view of the foregoing Protestant Francisco M. Langi, Sr. having obtained the over all total votes of 3,074 and the Protestee’s 3,068 total and final votes is declared the winner in the Mayoralty contest in Motiong, Samar with a plurality of (6) votes. Therefore the proclamation on May 17, 2007 is hereby annulled and declared Francisco Langi, Sr. y Maceren as the duly elected Mayor of Motiong, Samar. The winner is awarded the amount of P 32,510 as actual damages and no evidence aliunde for damages for the court to award. xxx

On January 10, 2008, petitioner filed a notice of appeal and paid P3,000.00 appeal fee per Official Receipt No. 6822663 before the RTC, Branch 27, Catbalogan, Samar. He also appealed the RTC decision dated January 7, 2008 to the Comelec which docketed the case as EAC No. A-13-2008. Out of the P3,000.00 appeal fee required by Section 3, Rule 40 of the Comelec Rules of Procedure, petitioner only paid the amount of P1,000.00 (plus P200.00 to cover the legal research/bailiff fees) to the Cash Division of the Comelec, per Official Receipt No. 0510287. The said payment was made on February 14, 2008.[7]

On March 17, 2008, the Comelec First Division issued an Order[8] dismissing the appeal, viz.:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the amount of P3,000.00 within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant case for Protestee-Appellant’s failure to pay the correct appeal fee as prescribed by the Comelec Rules of Procedure within the five-(5)-day reglementary period.

SO ORDERED.

On March 28, 2008, petitioner filed a Motion for Reconsideration[9] which the Comelec En Banc denied in the Resolution[10] dated January 21, 2009, declaring that the appeal was not perfected on time for non-payment of the complete amount of appeal fee and for late payment as well. The Comelec En Banc held that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time. Thus, the Comelec First Division correctly dismissed the appeal.

Hence, the instant petition for certiorari raising the following grounds:

The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that the correct appeal fee was not paid on time.

The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in failing to consider that assuming that the correct appeal fee was not paid on time, the alleged non-payment of the correct appeal fee is not in anyway attributable to herein petitioner.

The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in failing to consider that assuming that the correct appeal fee was not paid on time, there are highly justifiable and compelling reasons to resolve the subject case on the merits in the interest of justice and public interest.

Petitioner further claims that he paid a total of P4,215.00 for his appeal, as follows:

a. To RTC on January 10, 2008 ------ P3,000.00

10.00

5.00

TOTAL ------ P3,015.00

b. To Comelec on February 14, 2008 -- P1,000.00

50.00

150.00

TOTAL ------ P1,200.00

Petitioner submits that it is incumbent upon the RTC to transmit to the Comelec the entire P3,000.00 appeal fee that he paid on January 10, 2008. Petitioner also advances another interpretation of the Comelec Rules that the RTC is under obligation to remit to the Comelec the P2,000.00 representing the excess amount of the P1,000.00 appeal fee. Thus, petitioner claims that he must be deemed to have complied, in full or at least substantially, with the Comelec Rules on the payment of appeal fees.

Petitioner maintains that the alleged non-payment of the correct appeal fee is not due to his own fault or negligence. He claims that the laws on appeals in election protest cases are not yet well-established, thus, he must not be made to suffer for an oversight made in good faith. The Resolution No. 8486 of July 15, 2008 adopted by the Comelec to clarify the rules on compliance with the required appeal fees in election cases should not be applied retroactively to the subject election protest.

Lastly, petitioner invokes liberality in the application of the election law. He asserts that the popular will of the people expressed in the election of public officers should not be defeated by reason of sheer technicalities. Petitioner argues that the true will of the people of Motiong in the May 14, 2007 elections should be determined by ordering the Comelec to give due course to his appeal and to resolve the same on the merits.

In his Comment, respondent Langi, Sr. states that the petition was just a mere rehash of the Motion for Reconsideration that petitioner filed with the Comelec En Banc. Respondent maintains that for the Comelec to exercise its authority to administer proceedings, grant leniency, issue orders, and pass judgment on issues presented, it must first be shown that it has acquired the requisite jurisdiction over the subject matter pursuant to the initiatory acts and procedural compliance set as conditions precedent.

Respondent also argues that the negligence and mistakes of petitioner’s counsel bind petitioner. He then reiterates the cases where this Court held that the non-payment or insufficiency of payment of filing fees is a valid ground for the dismissal of the appeal and that the subsequent full payment thereof does not cure the jurisdictional defect.

We grant the petition.

Section 3, Rule 22 (Appeals from Decisions of Courts in Election Protest Cases) of the Comelec Rules of Procedure mandates that the notice of appeal must be filed within five (5) days after promulgation of the decision, thus:

SEC. 3. Notice of Appeal. – Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party.

Moreover, Sections 3 and 4, Rule 40 of the Comelec rules require the payment of appeal fees in appealed election protest cases, the amended amount of which was set at P3,200.00 in Comelec Minute Resolution No. 02-0130,[11] to wit:

SEC. 3. Appeal Fees. – The appellant in election cases shall pay an appeal fee as follows:

(a) For election cases appealed from Regional Trial Courts……….P3,000.00 (per appellant)

(b) For election cases appealed from courts of limited jurisdiction…..P3,000.00 (per appellant)

SEC. 4. Where and When to Pay. – The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with, the Cash Division of the Commission within a period to file the notice of appeal.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC[12] also provide the procedure for instituting an appeal and the required appeal fees to be paid for the appeal to be given due course, to wit:

SEC. 8. Appeal. –- An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

SEC. 9. Appeal fee. –- The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.

A reading of the foregoing provisions reveals that two different tribunals (the trial court that rendered the decision and the Comelec) require the payment of two different appeal fees for the perfection of appeals of election cases. This requirement in the payment of appeal fees had caused much confusion, which the Comelec addressed through the issuance of Comelec Resolution No. 8486.[13] Thus, to provide clarity and to erase any ambiguity in the implementation of the procedural rules on the payment of appeal fees for the perfection of appeals of election cases, the resolution provides:

WHEREAS, the Commission on Elections is vested with appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, and those involving elective barangay officials, decided by trial courts of limited jurisdiction;

WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof the procedure in instituting the appeal and the required appeal fees to be paid for the appeal to be given due course, to wit:

Section 8. Appeal. – An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

Section 9. Appeal Fee. – The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.

WHEREAS, payment of appeal fees in appealed election protest cases is also required in Section 3, Rule 40 of the COMELEC Rules of Procedure the amended amount of which was set at P3,200.00 in COMELEC Minute Resolution No. 02-0130 made effective on September 18, 2002.

WHEREAS, the requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Commission on Elections of its procedural rules on payment of appeal fees for the perfection of appeals of cases brought before it from the Courts of General and Limited Jurisdictions.

WHEREAS, there is a need to clarify the rules on compliance with the required appeal fees for the proper and judicious exercise of the Commission’s appellate jurisdiction over election protest cases.

WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to DIRECT as follows:

1. That if the appellant had already paid the amount of P1,000.00 before the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules of Procedure in Election Cases Before the Courts Involving Elective Municipal and Barangay Officials (Supreme Court Administrative Order No. 07-4-15) and his Appeal was given due course by the Court, said appellant is required to pay the Comelec appeal fee of P3,200.00 at the Commission’s Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the Commission on Elections through ECAD, within a period of fifteen days (15) from the time of the filing of the Notice of Appeal with the lower court. If no payment is made within the prescribed period, the appeal shall be dismissed pursuant to Section 9(a) of Rule 22 of the COMELEC Rules of Procedure, which provides:

Sec. 9. Grounds for Dismissal of Appeal. -- The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; xxx

2. That if the appellant failed to pay the P1,000.00 – appeal fee with the lower court within the five (5) day period as prescribed by the Supreme Court New Rules of Procedure but the case was nonetheless elevated to the Commission, the appeal shall be dismissed outright by the Commission, in accordance with the aforestated Section 9(a) of Rule 22 of the Comelec Rules of Procedure.

The Education and Information Department is directed to cause the publication of this resolution in two (2) newspapers of general circulation.

This resolution shall take effect on the seventh day following its publication.

SO ORDERED.

Our ruling in the very recent case of Aguilar v. Comelec,[14] quoted hereunder, squarely applies to the instant case:

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for the following procedure in the appeal to the COMELEC of trial court decisions in election protests involving elective municipal and barangay officials:

SEC. 8. Appeal. – An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

SEC. 9. Appeal fee. – The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.

Section 8 was derived from Article IX-C, Section 2(2) of the Constitution and Rule 40, Section 3, par. 1 and Rule 41, Section 2(a) of the Rules of Court. Section 9 was taken from Rule 141, Sections 7(1) and 8(f) of the Rules of Court.

It should be noted from the afore-quoted sections of the Rule that the appeal fee of P1,000.00 is paid not to the COMELEC but to the trial court that rendered the decision. Thus, the filing of the notice of appeal and the payment of the P1,000.00 appeal fee perfect the appeal, consonant with Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the records have to be transmitted to the Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial court may only exercise its residual jurisdiction to resolve pending incidents if the records have not yet been transmitted and before the expiration of the period to appeal.

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in the COMELEC Rules of Procedure, as amended, no longer applies.

It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486, which the Court takes judicial notice of. The resolution pertinently reads:

xxx xxx xxx

The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of Procedure, as amended. The appeal to the COMELEC of the trial court’s decision in election contests involving municipal and barangay officials is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the court that rendered the decision within the five-day reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule 22, Section 9 (a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not.

Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioner’s appeal, as it in fact did, for petitioner’s failure to pay the P3,200.00 appeal fee.

Be that as it may, the Court finds that the COMELEC First Division gravely abused its discretion in issuing the order dismissing petitioner’s appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were, respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioner’s appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioner’s appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee.

Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioner’s appeal should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with the clarificatory resolution, and if the latter should refuse to comply, then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated clarificatory resolution – which had taken effect only a few days earlier. This unseemly haste is an invitation to outrage.

The COMELEC First Division should have been more cautious in dismissing petitioner’s appeal on the mere technicality of non-payment of the additional P3,200.00 appeal fee given the public interest involved in election cases. This is especially true in this case where only one vote separates the contending parties. The Court stresses once more that election law and rules are to be interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate.

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The July 31, September 4 and October 6, 2008 Orders and the October 16 2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division for disposition in accordance with this Decision.

SO ORDERED. (Emphasis supplied)

From the foregoing discussion, it is clear that the appeal from the trial court decision to the Comelec is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the trial court that rendered the decision. With the promulgation of A.M. No. 07-4-15-SC, the perfection of the appeal no longer depends solely on the full payment of the appeal fee to the Comelec.

In the instant case, when petitioner filed his Notice of Appeal and paid the appeal fee of P3,015.00 to the RTC on January 10, 2008, his appeal was deemed perfected. However, Comelec Resolution No. 8486 also provides that if the appellant had already paid the amount of P1,000.00 before the trial court that rendered the decision, and his appeal was given due course by the court, said appellant is required to pay the Comelec appeal fee of P3,200.00 to the Comelec’s Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the Comelec, within a period of fifteen (15) days from the time of the filing of the Notice of Appeal with the lower court. However, if no payment is made within the prescribed period, the appeal shall be dismissed pursuant to Section 9 (a), Rule 22 of the Comelec Rules of Procedure, which provides:

SEC. 9. Grounds for Dismissal of Appeal. – The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; xxx

Thus, when petitioner’s appeal was perfected on January 10, 2008, within five (5) days from promulgation, his non-payment or insufficient payment of the appeal fee to the Comelec Cash Division should not have resulted in the outright dismissal of his appeal. The Comelec Rules provide in Section 9 (a), Rule 22, that for failure to pay the correct appeal fee, the appeal may be dismissed upon motion of either party or at the instance of the Comelec. Likewise, Section 18, Rule 40[15] thereof also prescribes that if the fees are not paid, the Comelec may refuse to take action on the appeal until the said fees are paid and may dismiss the action or the proceeding.

Here, petitioner paid P1,200.00 to the Comelec on February 14, 2008. Unfortunately, the Comelec First Division dismissed the appeal on March 17, 2008 due to petitioner’s failure to pay the correct appeal fee within the five-day reglementary period. In denying petitioner’s motion for reconsideration, the Comelec En Banc, in the Resolution dated January 21, 2009, declared that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time.

However, during the pendency of petitioner’s Motion for Reconsideration dated March 27, 2008, the Comelec promulgated Resolution No. 8486 to clarify the implementation of the Comelec Rules regarding the payment of filing fees. Thus, applying the mandated liberal construction of election laws,[16] the Comelec should have initially directed the petitioner to pay the correct appeal fee with the Comelec Cash Division, and should not have dismissed outright petitioner’s appeal. This would have been more in consonance with the intent of the said resolution which sought to clarify the rules on compliance with the required appeal fees.

In Barroso v. Ampig, Jr.,[17] we ruled, thus:

xxx An election contest, unlike an ordinary civil action, is clothed with a public interest. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. An election contest therefore involves not only the adjudication of private and pecuniary interests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. And the court has the corresponding duty to ascertain by all means within its command who is the real candidate elected by the people.

Moreover, the Comelec Rules of Procedure are subject to a liberal construction. This liberality is for the purpose of promoting the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and for achieving just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Comelec. Thus we have declared:

It has been frequently decided, and it may be stated as a general rule recognized by all courts, that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. An election contest, unlike an ordinary action, is imbued with public interest since it involves not only the adjudication of the private interests of rival candidates but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is neither fair nor just to keep in office for an uncertain period one whose right to it is under suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure which protract and delay the trial of an ordinary action.

WHEREFORE, the petition is granted. The Order dated March 17, 2008 of the Comelec First Division and the Resolution dated January 21, 2009 of the Comelec En Banc in EAC No. A-13-2008 are ANNULLED and SET ASIDE. Accordingly, let the case be REMANDED to the Comelec First Division for further proceedings, in accordance with the rules and with this disposition. The Regional Trial Court, Branch 27 of Catbalogan, Samar is DIRECTED to refund to petitioner Constancio D. Pacanan, Jr., the amount of Two Thousand Pesos (P2,000.00) as the excess of the appeal fee per Official Receipt No. 6822663 paid on January 10, 2008.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING

Associate Justice

(On official leave)

CONSUELO YNARES-SANTIAGO

Associate Justice

ANTONIO T. CARPIO

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

(No part)

ANTONIO EDUARDO B. NACHURA

Associate Justice

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

* On official leave.

** No part.

__________________

[1] Rollo, p. 32.

[2] Id. at 34-42.

[3] Id. at 43-128.

[4] Id. at 129-139.

[5] Id. at 140-149.

[6] Supra note 3.

[7] Footnote 3 of the Order dated March 17, 2008 of the Comelec First Division, supra note 1.

[8] Supra note 1.

[9] Rollo, pp. 150-164.

[10] Supra note 2.

[11] Effective on September 18, 2002 which prescribes P3,000.00 as appeal fee plus P150.00 for bailiff’s fee and P50.00 for legal research fee.

[12] Entitled “Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials,” promulgated on April 24, 2007, and became effective on May 15, 2007.

[13] Entitled “In the Matter of Clarifying the Implementation of COMELEC Rules Re: Payment of Filing Fees for Appealed Cases Involving Barangay and Municipal Elective Positions from the Municipal Trial Courts, Municipal Circuit Trial Courts, Metropolitan Trial Courts and Regional Trial Courts,” promulgated on July 15, 2008.

[14] G.R. No. 185140, June 30, 2009.

[15] Rule 40, Sec. 18 of the Comelec Rules of Procedure provides:

Sec. 18. Non-payment of Prescribed Fees. – If the fees above prescribed are not paid, Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding.

[16] Section 3, Rule 1, Comelec Rules of Procedure which reads:

SEC. 3. Construction. – These rules shall be liberally construed in order to promote the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, hones, peaceful and credible elections and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission.

[17] G.R. No. 138218, March 17, 2000, 328 SCRA 530, 541-542; citing Pahilan v. Tabalba, G.R. No. 110170, February 21, 1994, 230 SCRA 205, 212-213.