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10:34 PM June 15th, 2013

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By: Artemio V. Panganiban, June 15th, 2013 10:34 PM

The discrepancies, variances or differences (or whatever the Commission on Elections wants to call them) between the manual count and the electronic count made by the PCOS machines present formidable basic problems which I think must be solved by definitive legislation.

Voters’ intent. These counting variances cannot be avoided as long as the rules for manual counting are used in auditing or checking the electronic count. The basic rule in manual counting is to discern and give effect to the voters’ intent. Thus, anything on the ballot that may show this intent should be respected.

For example, this intent can be shown by a check mark outside the ovals. Thus, a ballot with such mark is to be credited during a manual count in favor of the candidate whose name is printed nearest the mark. Sometimes, instead of shading the oval, a voter may even write down the name of the preferred candidate on the ballot. Again, in a manual count, this could arguably show the voters’ intent in favor of that candidate.

On the other hand, machines count ballots according to a program or command uploaded into them. Being machines, they do not think like humans in determining the intent of the voter.  They merely count mechanically as programmed.

In the above examples in which the oval is not shaded but check-marked or handwritten with the candidates’ names, the machines would not count the vote because they are not programmed to do so. Thus, a variance or discrepancy would arise, which may not necessarily be fraudulent. The question nonetheless remains: Which count—the manual or the electronic—should be used in determining the winner?

Early jurisprudence. In an early case, Loong v Comelec (April 14, 1999), our Supreme Court said that the manual count should prevail. By way of background, this case arose from the first experiment on automated elections conducted during the May 11, 1998, polls in the Autonomous Region in Muslim Mindanao (ARMM).

Like the 2010 and 2013 elections, the 1998 ARMM experiment involved the use of preprinted ballots with ovals that were to be shaded by the voters. However, the counting was not done at the precincts. Instead, the ballots were brought by the Board of Election Inspectors (BEI) to the voting centers where machines counted them electronically. The results of the electronic count were preserved in a diskette; later, the entries were consolidated and used to proclaim the winners.

One day after the polls, on May 12, 1998, while the automated counting was being conducted at the voting center, three election watchers noted that in the precinct where they voted, their candidate obtained a zero vote, which they protested was impossible.

After examining the ballots, technicians determined that the counting problem was caused by the erroneous printing of the ballots—the ovals had not been properly aligned to the names of the candidates. The local Comelec office stopped the automated counting in the entire province of Sulu, not just in the precinct concerned.

All the ballots were thereafter brought to the Comelec head office in Manila where the poll body ordered the simultaneous electronic and manual counting of all the ballots for the entire province of Sulu, not just from the precinct and municipality where the error was found. Nonetheless, only a manual count was actually conducted. No electronic count was in fact made.

SC ruling and dissent. Upholding the manual count and denying the losing candidate’s prayer for a special election, the Supreme Court ruled that “[t]he correctness of the manual count cannot be doubted… The naked eyes could see the check marks opposite the big ovals,” thereby implying that the voters’ intent, the basic rule in manual counts, should prevail.

I dissented on the ground that the rules for manual counting provided by the Omnibus Election Code and by the Comelec assumed that the ballots were to be filled out by the handwritten entries of the candidates’ names, not by the mere shading of the preprinted ovals. The erroneous use of these manual rules necessarily produced results “not reflective of the automated count.”

In short, the ARMM experiment taught us that rules on how to manually read automated ballots should be carefully studied and enacted into law by Congress. Using the rules on manual counting will always show a discrepancy or variance between the manual and machine results. Unless these rules are enacted soon, losers in closely contested automated elections will always demand a manual recount.

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Servant leadership. Awesome and spirit-filled was the gathering of the leaders of the various parishes and lay organizations in the Archdiocese of Manila held yesterday and the day before (June 15 and 14) at the huge SMX Convention Center in Pasay City.

Led by Luis Antonio Cardinal Tagle and attended by 1,000 devotees, the conference discussed the “embodiment of servant leadership with Jesus Christ as role model.” The speakers included Bishop Pablo Virgilio David, Bishop Broderick Pabillo, Msgr. Gerry Santos, Sr. Maria Consolata Manding, and Catholic lay leaders Barbara de los Reyes, Francisco Padilla, Selene Yu and yours truly.

Congratulations to the Serviam Charismatic Community for sponsoring this meeting, supported by Metrobank Foundation, Megaworld Foundation, Phinma Foundation, BPI, SM, Resorts World, PSBank, Unilab, Inquirer, Inquirer.net, Manila Bulletin, Philippine Star, Veritas, dzRH, dzIQ, etc. Mabuhay po kayong lahat.

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