G.R. No.

203302

March 12, 2013

MAYOR EMMANUEL L. MALIKSI, Petitioner,

vs.
COMMISSION ON ELECTIONS and HOMER T. SAQUILAYAN, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for certiorari1 assailing the 14 September 2012 Resolution2 of the
Commission on Elections (COMELEC) En Banc which affirmed the 15 August 2012 Resolution3 of
the COMELEC First Division in EAC (AE) No. A-22-2011.
The Antecedent Facts
Emmanuel L. Maliksi (Maliksi) and Homer T. Saquilayan (Saquilayan) were both mayoralty
candidates for the Municipality of Imus, Cavite during the 10 May 2010 Automated National and
Local Elections. The Municipal Board of Canvassers (MBC) proclaimed Saquilayan as the duly
elected municipal mayor garnering a total of 48,181 votes as against Maliksis 39,682 votes. Thus,
based on the MBCs canvass, Saquilayan won over Maliksi by 8,499 votes.
Maliksi filed an election protest before the Regional Trial Court of Imus, Cavite, Branch 22 (trial
court), questioning the results of the elections in 209 clustered precincts. The case was docketed as
Election Protest No. 009-10. In its 15 November 2011 Decision, the trial court declared Maliksi as
the duly elected Municipal Mayor of Imus, Cavite. The trial court ruled that Maliksi garnered 41,088
votes as against Saquilayans 40,423 votes. Thus, based on the trial courts recount, Maliksi won
over Saquilayan by a margin of 665 votes. The dispositive portion of the trial courts decision reads:
WHEREFORE, in view of all the foregoing, this Court finds the Election Protest filed by Emmanuel L.
Maliksi meritorious. Accordingly, Emmanuel L. Maliksi is hereby DECLARED as the duly elected
Mayor of the Municipality of Imus, Province of Cavite after having obtained the highest number of
legal votes of 41,088 as against Protestant Homer T. Saquilayans 40,423 votes or a winning margin
of 665 votes in favor of the former.
Thus, the election and proclamation of Homer T. Saquilayan as Mayor of Imus, Cavite is hereby
ANNULLED and SET ASIDE and he is COMMANDED to immediately CEASE and DESIST from
performing the duties and functions of said office.
Finally, pursuant to Section 4, Rule 14 of A.M. 10-4-1-SC, the Clerk of Court is hereby DIRECTED to
personally deliver the copy of the signed and promulgated decision on the counsels of the parties.
SO ORDERED.4
Saquilayan filed an appeal before the COMELEC, docketed as EAC (AE) No. A-22-2011.
Meanwhile, in a Special Order dated 28 November 2011, the trial court granted Maliksis motion for
execution pending appeal.

On 2 December 2011, Saquilayan also filed with the COMELEC a petition for certiorari with prayer
for the issuance of a writ of preliminary injunction and temporary restraining order or status quo
order with prayer for early consideration, docketed as SPR (AE) No. 106-2011, assailing the trial
courts Special Order of 28 November 2011 granting execution pending appeal. A COMELEC First
Division Order dated 20 December 20115 enjoining the trial court from enforcing its 28 November
2011 Special Order was not implemented since only Presiding Commissioner Rene V. Sarmiento
(Sarmiento) voted to grant the temporary restraining order while Commissioners Armando C.
Velasco (Velasco) and Christian Robert S. Lim (Lim) dissented.
The Resolution of the COMELEC First Division
The COMELEC First Division, after inspecting the ballot boxes, ruled that it was apparent that the
integrity of the ballots had been compromised. To determine the true will of the electorate, and since
there was an allegation of ballot tampering, the COMELEC First Division examined the digital
images of the contested ballots stored in the Compact Flash (CF) cards. The COMELEC First
Division used the following guidelines in appreciating the contested ballots:
1. On Marked Ballots. - The rule is that no ballot should be discarded as marked unless its
character as such is unmistakable. The distinction should always be between marks that
were apparently, carelessly, or innocently made, which do not invalidate the ballot, and
marks purposely placed thereon by the voter with a view to possible future identification of
the ballot, which invalidate it. In the absence of any circumstance showing that the intention
of the voter to mark the ballot is unmistakable, or any evidence aliunde to show that the
words or marks were deliberately written or put therein to identify the ballots, the ballots
should not be rejected.
2. On ballots claimed to have been shaded by two or more persons. - Unlike in the manual
elections where it is easy to identify if a ballot has been written by two persons, in case of an
automated election, it would be very hard if not impossible to identify if two persons shaded a
single ballot. The best way to identify if a ballot has been tampered is to go to the digital
image of the ballot as the PCOS machine was able to capture such when the ballot was fed
by the voter into the machine when he cast his vote. In the absence of any circumstance
showing that the ballot was shaded by persons other than the voter, the ballots should not be
rejected to give effect to the voters intent.
3. On ballots with ambiguous votes. - It has been the position of the Commission to always
take into consideration [that] the intent of the voter shall be given effect, taking aside any
technicalities. A ballot indicates the voters will. In the reading and appreciation of ballots,
every ballot is presumed valid unless there is a clear reason to justify its rejection. The object
in the appreciation of ballots is to ascertain and carry into effect the intention of the voter, if it
can be determined with reasonable certainty.
4. On spurious ballots. - Ballots have security features like bar codes, ultra-violet inks and
such other security marks to be able to preserve its integrity and the PCOS machines were
programmed to accept genuine and valid ballots only. Further, the ballots used in the
elections were precinct specific, meaning, the PCOS machine assigned to a specific precinct
will only accept those ballots designated to such precinct. This follows that the digital images
stored in the CF cards are digital images of genuine, authentic and valid ballots. In the
absence of any evidence proving otherwise, the Commission will not invalidate a vote cast
which will defeat the sovereign will of the electorate.

5. On over-voting. - It has been the position of the Commission that over-voting in a certain
position will make the vote cast for the position stray but will not invalidate the entire ballot,
so in case of over-voting for the contested position, such vote shall be considered stray and
will not be credited to any of the contending parties.
6. On rejected ballots. - As correctly observed by [the] court a quo, with all the security
features of the ballot, the PCOS machines will only accept genuine ballots and will reject it if,
inter alia, fake, duplicate, ballots intended for another precinct, or has been fed an[d]
accepted by the machines already. Bearing in mind the voters will, rejected ballots can still
be claimed by the parties and be admitted as valid votes, if, upon further examination, it is
found that the ballot is genuine and was inadvertently rejected by the machine.6
After the counting and appreciation of the ballot images in the CF cards of the appealed clustered
precincts, the COMELEC First Division came up with the following findings:
1w phi1

Clustered
Precinct
No.

Ruling of
Trial Court

Ruling of
COMELEC
First
Division

Votes for
Saquilayan

Votes
for
Maliksi

96

84 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

235

270

61

68 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

230

173

51

133 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.
2 ballots were
declared stray
because the
slots for
Maliksi and
Astillero were
both shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

212

182

42

207 ballots
were declared

Upon
examining the

273

231

stray because
both slots for
Maliksi and
Saquilayan
were shaded.
1 ballot was
declared stray
because the
slots for
Maliksi and
Astillero were
both shaded.

digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

36

92 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots
there was no
over-voting. 2
ballots were
rejected by
the PCOS machine but it
was clear that
the intent of
the voters was
to vote for
Maliksi.

154

202

03

33 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

73

89

49

172 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

279

265

50

153 ballots

Upon

313

275

were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were
rejected by
the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for
Maliksi.

34

155 ballots
were declared stray
because
both slots for
Maliksi and
Saquilayan
were shaded.
1 ballot was
declared stray
because the
slots for
Maliksi and
Dominguez
were both
shaded.

Upon
examining the digital
images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

210

164

35

215 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were
rejected by
the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for
Saquilayan.

286

288

146

216 ballots
were declared
stray because
both slots for
the mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was

305

271

rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.
120

246 ballots
were declared stray
because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the digital
images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

309

269

127

248 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
were shaded.
1 ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

332

304

206

132 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 3
ballots (1 for
Saquilayan, 2
for Maliksi)
were rejected
by the PCOS
machine but it

136

116

was clear that

the intent of
the voters was
to vote for the candidate of
choice.
76

253 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan
were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

329

251

202

122 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
1 ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

140

158

67

203 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
2 ballots were
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

246

180

209

168 ballots
were declared
stray because
both slots for
Maliksi and
Saquilayan were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

220

171

81

181 ballots

Upon

329

194

were declared
stray because
2 slots for the
mayoralty
position were
shaded.

examining the
digital images
of the ballots,
there was no
over-voting.

87

107 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were
rejected by
the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

133

147

86

189 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 3
ballots (1 for
Maliksi, 2 for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

246

239

91

95 ballots
were declared
stray because 2 slots for
the
mayoralty
position were
shaded.

Upon
examining the
digital images of the ballots,
there was no
over-voting. 3
ballots (2 for
Maliksi, 1 for
Saquilayan)
were rejected
by the PCOS
machine but it

137

189

was clear that

the intent of
the voters was
to vote for the
candidate of
choice.
88

75 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were
rejected by
the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for
Maliksi.

142

223

68

113 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
1 ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

243

180

45

120 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
1 ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

216

211

43

101 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 3
ballots (2 for
Maliksi, 1 for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

256

182

85

89 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

184

213

74

114 ballots
were declared
stray because
2 slots for the
mayoralty position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no over-voting. 7
ballots (2 for
Maliksi, 5 for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

179

161

47

186 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
1 ballot was
rejected by
the PCOS

250

226

machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.
128

105 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

272

223

107

77 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

127

178

97

220 ballots
were declared
stray because 2 slots for
the
mayoralty
position were
shaded.

Upon
examining the
digital images of the ballots,
there was no
over-voting. 2
ballots (1 for
Maliksi, 1 for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

280

299

99

114 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was

243

354

to vote for
Saquilayan.
208

154 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

200

163

204

119 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were
rejected by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for
Saquilayan.

269

119

201

108 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

143

131

207

338 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

419

117

109

136 ballots
were declared
stray because
2 slots for the

Upon
examining the
digital images
of the ballots,

173

257

mayoralty
position were
shaded.

there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

131

140 ballots were declared

stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

297

165

52

98 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Maliksi.

118

87

117

146 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

302

265

100

90 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 3
ballots (2 for
Maliksi, 1 for
Saquilayan)
were rejected
by the PCOS

370

228

machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of choice.
95

215 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

288

270

98

103 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

218

304

94

257 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were
rejected by
the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for
Maliksi.

270

150

93

105 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 2
ballots were rejected by

205

167

the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for
Maliksi.
64

117 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

170

162

44

169 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

273

200

41

262 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.

368

176

130

156 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting.
3 ballots (2
for Maliksi, 1
for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was to vote for
the
candidate of
choice.

314

170

118

126 ballots
were declared

Upon
examining the

310

248

stray because
2 slots for the
mayoralty
position were
shaded.

digital images
of the ballots,
there was no
over-voting.
3 ballots (2
for Maliksi, 1
for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

56

127 ballots
were declared
stray because
2 slots for the
mayoralty
position were
shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 1
ballot was
rejected by
the PCOS
machine but it
was clear that
the intent of
the voter was
to vote for
Saquilayan.

202

223

205

153 ballots
were declared
stray because
2 slots for the
mayoralty
position were shaded.

Upon
examining the
digital images
of the ballots,
there was no
over-voting. 3 ballots (1
for Maliksi, 2
for
Saquilayan)
were rejected
by the PCOS
machine but it
was clear that
the intent of
the voters was
to vote for the
candidate of
choice.

185

242

The COMELEC First Division found that Maliksi obtained a total of 40,092 votes, broken down as
follows: (a) 29,170 votes in the clustered precincts not appealed as per statement of votes by
precinct, and (b) 10,922 votes in the appealed clustered precincts. On the other hand, Saquilayan
obtained a total of 48,521 votes, broken down as follows: (a) 35,908 votes in the clustered precincts
not appealed as per statement of votes by precinct, and (b) 12,613 votes obtained in the appealed
clustered precincts. Saquilayan won over Maliksi by 8,429 votes. Thus, in a Resolution promulgated
on 15 August 2012, the COMELEC First Division nullified the trial courts decision and declared
Saquilayan as the duly-elected Municipal Mayor of Imus, Cavite. The COMELEC First Division noted
that Maliksi attached a photocopy of an official ballot to his election protest. The COMELEC First
Division stated that unless one of the clustered precincts had a photocopying machine, it could only
mean that an official ballot was taken out of the polling place to be photocopied, in violation of
Section 30(a) of COMELEC Resolution No. 8786.7The dispositive portion of the 15 August 2012
Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to:
1. NULLIFY the pronouncement of the lower court that protestant-appellee EMMANUEL L.
MALIKSI is the duly-elected Municipal Mayor of Imus, Cavite and HEREBY DECLARES
HOMER T. SAQUILAYAN as the duly-elected Municipal Mayor of the above-mentioned
municipality;
2. Further, the Law Department is hereby DIRECTED:
i. To conduct an investigation as to who were responsible for the tampering of the
ballot boxes for purposes of filing the appropriate information for violation of election
laws; and
ii. To conduct an investigation as to possible violation of election laws and Comelec
Resolutions by herein protestant-appellee EMMANUEL L. MALIKSI as to how he
was able to secure a photocopy of the official ballot which he attached in his Election
Protest.
SO ORDERED.8
Maliksi filed a motion for reconsideration of the COMELEC First Divisions Resolution and for the
voluntary inhibition of Commissioners Sarmiento, Velasco, and Lim from further acting on the case.
The Resolution of the COMELEC En Banc
In its 14 September 2012 Resolution, the COMELEC En Banc denied Maliksis motion for
reconsideration and affirmed the 15 August 2012 Resolution of the COMELEC First Division.
The COMELEC En Banc ruled that the COMELEC First Division did not err in ordering the
decryption, printing, and examination of the ballot images in the CF cards instead of recounting the
physical ballots. The COMELEC En Banc stated that when the case was elevated to it on appeal, it
immediately noted an "unprecedented number of double-votes involving 8,387 ballots exclusively
affecting the position of Mayor and specifically affecting the ballots for Saquilayan."9 The COMELEC
En Banc further noted:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically
pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested)

thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election day, too specific to be
random and too precise to be accidental which leaves a reasonable mind no other conclusion
except that those 8,387 cases of double-shading were purposely machinated. These dubious and
highly suspicious circumstances left us with no other option but to dispense with the physical ballots
and resort to their digital images. To recount the tampered ballots will only yield us tampered results
defeating the point of this appeal.10
The COMELEC En Banc also ruled that it is free to adopt procedures that will ensure the speedy
disposition of its cases as long as the parties are amply heard on their opposing claims. The
COMELEC En Banc ruled that the decryption, printing, and examination of the ballot images in the
CF cards are not without basis since a Division, through its Presiding Commissioner, may take such
measures as he may deem proper to resolve cases pending before it. The COMELEC En Banc ruled
that Maliksi was not denied due process because he never questioned the Order of decryption by
the COMELEC First Division nor did he raise any objection in any of his pleadings. Further, the ballot
images are not mere secondary images, as Maliksi claimed. The digital images of the physical
ballots, which are instantaneously written in the CF cards by the PCOS11 machines the moment the
ballots are read and counted, are equivalent to the original for the purpose of the best evidence rule.
The COMELEC En Banc accorded higher evidentiary value to the ballot images because their
integrity are more secure for the following reasons:
(1) the digital images are encrypted to prevent unauthorized alteration or access;
(2) the ballot images cannot be decrypted or in anyway accessed without the necessary
decryption key;
(3) the ballot images may only be decrypted using a special system designed by the
COMELEC and not by any ordinary operating system or computer;
(4) the CF cards storing the digital images of all the ballots used in the 10 May 2010
elections are kept in a secured facility within the Commission to prevent unauthorized
access.12
The COMELEC En Banc further ruled that the result of the revision proceedings in the trial court
could not be admitted because of the finding by the COMELEC First Division that the recounted
ballots were tampered.
The COMELEC En Banc explained:
The allegation of post-election fraud of Saquilayan was in fact confirmed by the First Division when
upon examination of the scanned digital images of all the double-shaded ballots, they were found to
bear no traces of double-shading instead they contain clear and unambiguous votes for
Saquilayan. This finding of the First Division proves that double-votes did not exist when the PCOS
machines counted them on election day, which in turn proves that the ballots recounted and
admitted by the trial court were tampered and were clear products of post-election fraud. Under
these circumstances, the doctrines in Rosal v. COMELEC and Varias v. COMELEC edict that the
tampered revision result which was the basis of the appealed decision cannot be admitted and
cannot be used to overturn the the official count.13 (Emphasis in the original; citations omitted)
Finally, the COMELEC En Banc ruled that Maliksi had no basis to call for the inhibition of
Commissioners Sarmiento and Velasco. Commissioner Lim voluntarily inhibited himself from the
case.

The dispositive portion of the COMELEC En Bancs 14 September 2012 Resolution reads:
WHEREFORE, premises considered, the MOTION FOR RECONSIDERATION of ProtestantAppellee EMMANUEL L. MALIKSI is hereby DENIED for lack of merit. Consequently, we are
AFFIRMING the August 15, 2012 Resolution of the First Division NULLIFYING the November 15,
2011 Decision of the Regional Trial Court, Branch 22 of Imus, Cavite.
SO ORDERED.14
Hence, Maliksi filed the present petition before this Court.
In a Resolution dated 11 October 2012, this Court issued a temporary restraining order directing the
COMELEC En Banc to desist from implementing its 14 September 2012 Resolution.
The Issues
The overriding issue in this petition for certiorari is whether the COMELEC En Banc committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing its assailed Resolution
dated 14 September 2012. In resolving this issue, we shall examine:
(1) whether Maliksi was deprived of due process when the COMELEC First Division ordered
on appeal the decryption, printing, and examination of the ballot images in the CF cards;
(2) whether the ballot images in the CF cards are mere secondary evidence that should only
be used when the physical ballots are not available;
(3) whether the issue of tampering of ballots and ballot boxes was belatedly raised by
Saquilayan; and
(4) whether there were grounds for the inhibition of Commissioners Sarmiento and Velasco.
The Ruling of this Court
We dismiss the petition.
The Alleged Violation of Due Process
Maliksi alleged that he was denied due process when the COMELEC First Division directed the
decryption, printing, and examination of the ballot images in the CF cards for the first time on appeal
without notice to him, thus depriving him of his right to be present and observe the decryption
proceedings.
The records point to the contrary.
In a Motion dated 21 March 2011 filed before the trial court,15 Saquilayan moved for the printing of
the images of the ballots in the CF cards of the contested clustered precincts. Thus, it cannot be said
that Saquilayan asked for decryption of the ballot images for the first time only on appeal.
Saquilayan had called the attention of the trial court to the unusually large number of double-shaded
ballots affecting only the position of Mayor, giving rise to a strong suspicion of tampering of the
ballots and ballot boxes. However, the trial court did not immediately act on his motion, as shown by
Saquilayans Omnibus Motion To Resolve and For Issuance of Order16 dated 14 April 2011.

In an Omnibus Order17 dated 3 May 2011, the trial court granted Saquilayans motion for the printing
of the ballot images in the CF cards. The trial court gave Saquilayan a period of 30 days within which
to accomplish the printing of the ballot images. Saquilayan received a copy of the Omnibus Order on
10 May 2011. On 11 May 2011, he sent a letter to the COMELEC requesting it to forward at the
soonest time the CF cards of the protested precincts to the COMELEC Election Records and
Statistics Department (ERSD) to enable the decrypting and printing of the ballot images. It turned out
that the CF cards were still with the trial court. Thus, in a Manifestation and Request18 dated 20 May
2011, Saquilayan asked the trial court to forward the CF cards of the protested precincts to the
ERSD to enable the COMELEC to decrypt and print the ballot images.
In an Order19 dated 17 June 2011, the trial court noted that the ERSD already specified the main and
back-up CF cards that were used in the 10 May 2010 National and Local Elections in Imus, Cavite
and the decryption and copying of the ballot images was scheduled to start on 21 June 2011. The
trial court then requested the ERSD to specify the procedure that the ERSD would undertake for the
decryption of the ballot images. In a letter20 dated 20 June 2011, Maliksi wrote the ERSD requesting
that further proceedings be deferred and held in abeyance in deference to the 17 June 2011 Order
of the trial court requiring the ERSD to specify the procedure it would undertake for the decryption.
Thereafter, Maliksi filed a Motion to Consider That Period Has Lapsed to Print Ballots Picture
Images,21 alleging that Saquilayan was only given a maximum of 30 days within which to accomplish
the printing of the ballot images. Maliksi alleged that the period, which was until 22 June 2011, had
lapsed and Saquilayan should be considered barred from having access to the electronic data in the
COMELECs back-up server to print the ballot images in the CF cards. The trial court granted
Maliksis motion in its Order dated 3 August 2011.22 The trial court stated that Saquilayan should
have included in his motion to have access to the electronic data a request for the trial court to turn
over to the COMELEC the CF cards in its possession. As it turned out, the delay in the turn over of
the CF cards likewise delayed the printing of the ballot images in the CF cards.
It is clear from the foregoing events that the delay in the printing of the ballot images could not be
attributed to Saquilayan alone. In its 17 June 2011 Order, the trial court set a conference on 27 June
2011 upon Maliksis motion to request the ERSD to specify the procedure it would undertake in
decrypting the CF cards. Maliksi then requested for the deferment of the printing of the ballot images
in his 20 June 2011 letter to ERSD. However, during the 27 June 2011 hearing, Maliksis counsel
filed in open court his Motion to Consider That Period Has Lapsed to Print Ballots Picture Images.
The trial court acted on the motion by requiring Saguilayans counsel to comment within five days.
The original reason for the hearing, which was for ERSD to specify the procedure it would undertake
in decrypting the CF cards, was not even taken up. The trial court eventually granted Maliksis
motion and declared that the period given to Saquilayan had lapsed. The failure of the trial court to
turn over the CF cards to the ERSD, as well as the move of Maliksi for the ERSD to specify the
procedure in decrypting the CF cards, contributed significantly to the delay in the printing of the
ballot images.
The records also showed that Maliksi was aware of the decryption, printing, and examination of the
ballot images by the COMELEC First Division. The COMELEC First Division issued an Order23 dated
28 March 2012 directing Saquilayan to deposit the required amount for expenses for the supplies,
honoraria, and fee for the decryption of the CF cards, and a copy of the Order was personally
delivered to Maliksis counsel.24 Maliksis counsel was likewise given a copy of Saquilayans
Manifestation of Compliance with the 28 March 2012 Order.25 In an Order26dated 17 April 2012, the
COMELEC First Division directed Saquilayan to deposit an additional amount for expenses for the
printing of additional ballot images from four clustered precincts, and a copy of the Order was again
personally delivered to Maliksis counsel.27 The decryption took weeks to finish.

Clearly, Maliksi was not denied due process. He received notices of the decryption, printing, and
examination of the ballot images by the COMELEC First Division. In addition, Maliksi raised his
objections to the decryption in his motion for reconsideration before the COMELEC En Banc.
1wphi1

The Court has ruled:

x x x. The essence of due process, we have consistently held, is simply the opportunity to be heard;
as applied to administrative proceedings, due process is the opportunity to explain ones side or the
opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type
hearing is not at all times and in all instances essential. The requirement is satisfied where the
parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. x
x x.28
There is no denial of due process where there is opportunity to be heard, either through oral
arguments or pleadings.29 It is settled that "opportunity to be heard" does not only mean oral
arguments in court but also written arguments through pleadings.30 Thus, the fact that a party was
heard on his motion for reconsideration negates any violation of the right to due process.31 The Court
has ruled that denial of due process cannot be invoked where a party was given the chance to be
heard on his motion for reconsideration.32
Evidentiary Value of the Digital Ballot Images
Maliksi assailed the use by the COMELEC First Division of the ballot images in the CF cards. He
alleged that the best and most conclusive evidence are the physical ballots themselves, and when
they cannot be produced or when they are not available, the election returns would be the best
evidence of the votes cast.
We do not agree. We have already ruled that the ballot images in the CF cards, as well as the
printouts of such images, are the functional equivalent of the official physical ballots filled up by the
voters, and may be used in an election protest.
In the recent consolidated cases of Vinzons-Chato v. House of Representatives Electoral Tribunal
and Panotes and Panotes v. House of Representatives Electoral Tribunal and Vinzons-Chato,33 the
Court ruled that "the picture images of the ballots, as scanned and recorded by the PCOS, are
likewise official ballots that faithfully capture in electronic form the votes cast by the voter, as
defined by Section 2 (3) of R.A. No. 9369."34 The Court declared that the printouts of the ballot
images in the CF cards "are the functional equivalent of the paper ballots filled out by the voters and,
thus, may be used for purposes of revision of votes in an electoral protest." In short, both the ballot
images in the CF cards and the printouts of such images have the same evidentiary value as the
official physical ballots filled up by the voters.
In Vinzons-Chato and Panotes, the Court explained in length:
Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized as the "paper ballot,
whether printed or generated by the technology applied, that faithfully captures or represents the
votes cast by a voter recorded or to be recorded in electronic form."
An automated election system, or AES, is a system using appropriate technology which has been
demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result,
and other electoral process. There are two types of AES identified under R.A. No. 9369: (1) paperbased election system; and (2) direct recording electronic system. A paper-based election system,
such as the one adopted during the May 10, 2010 elections, is the type of AES that "use paper

ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the
results of the vote count. On the other hand, direct recording electronic election system "uses
electronic ballots, records, votes by means of a ballot display provided with mechanical or electrooptical component that can be activated by the voter, processes data by means of computer
programs, record voting data and ballot images, and transmits voting results electronically.
As earlier stated, the May 10, 2010 elections used a paper-based technology that allowed voters to
fill out an official paper ballot by shading the oval opposite the names of their chosen candidates.
Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan
(PCOS) machine which scanned both sides of the ballots simultaneously, meaning, in just one pass.
As established during the required demo tests, the system captured the images of the ballots in
encrypted format which, when decrypted for verification, were found to be digitized representations
of the ballots cast.
We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as
scanned and recorded by the PCOS, are likewise "official ballots" that faithfully captures (sic) in
electronic form the votes cast
by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts thereof are the
functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes
of revision of votes in an electoral protest.
It bears stressing that the digital images of the ballots captured by the PCOS machine are stored in
an encrypted format in the CF cards. "Encryption is the process of encoding messages (or
information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties
can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted
using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the
use of an encryption key, which specifies how the message is to be encoded. Any adversary that
can see the ciphertext, should not be able to determine anything about the original message. An
authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually
requires a secret decryption key, that adversaries do not have access to."35 (Citations omitted)
Hence, the COMELEC First Division did not gravely abuse its discretion in using the ballot images in
the CF cards.
Maliksi further alleged that the ballot images in the CF cards should merely be considered as
secondary evidence and should be resorted to only when the physical ballots are not available or
could not be produced.
Maliksi is mistaken.
Rule 4 of A.M. No. 01-7-01-SC36 is clear on this issue. It states:
SECTION 1. Original of an Electronic Document. - An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data accurately.
SECTION 2. Copies as equivalent of the originals. - When a document is in two or more copies
executed at or about the same time with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical or electronic recording, or by
chemical reproduction, or by other equivalent techniques which accurately reproduces the original,
such copies or duplicates shall be regarded as the equivalent of the original.

Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the
original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the
original. (Emphasis supplied)
The ballot images, which are digital, are electronically generated and written in the CF cards when
the ballots are fed into the PCOS machine. The ballot images are the counterparts produced by
electronic recording which accurately reproduce the original, and thus are the equivalent of the
original. As pointed out by the COMELEC, "the digital images of the physical ballots are
electronically and instantaneously generated by the PCOS machines once the physical ballots are
fed into and read by the machines."37 Hence, the ballot images are not secondary evidence. The
official physical ballots and the ballot images in the CF cards are both original documents. The ballot
images in the CF cards have the same evidentiary weight as the official physical ballots.
The Court notes that Maliksi did not raise any allegation that the use of the ballot images falls under
any of the exceptions under Section 2, Rule 4 of A.M. No. 01-7-01-SC that would make their use
inadmissible as original ballots.
Tampering of Ballots and Ballot Boxes
Maliksi alleged that there was no allegation of ballot and ballot box tampering before the trial court.
He further alleged that the COMELEC First Division did not explain how it came to the conclusion
that the integrity of the ballot boxes had been compromised or that there was ballot tampering.
The records reveal otherwise.
Contrary to Maliksis claim, Saquilayan questioned the integrity of the ballot boxes and election
paraphernalia before the trial court. In an Urgent Manifestation of Concern and Objections38 dated 8
June 2010, Saquilayan manifested his serious concern regarding the integrity of the ballot boxes and
election paraphernalia which remained under the effective control of Maliksi. Saquilayan informed
the trial court that his watchers were being limited to the outside of the building where the ballot
boxes and election paraphernalia were kept, thus preventing them from looking over the security of
the ballot boxes and election paraphernalia. In the same manifestation, Saquilayan categorically
stated that he was "questioning the integrity of the ballot boxes and other election
paraphernalia."39 Saquilayan also alleged in the same manifestation that the trial court could have
prescribed a procedure that would allow his watchers to view the ballot boxes and other election
paraphernalia that "would have prevented to some degree the tampering of the boxes and election
materials."40 Clearly, Saquilayan raised before the trial court the issue of tampering of the ballots and
ballot boxes.
Further, the COMELEC En Banc clarified in its Comment41 that the COMELEC First Division ordered
the decryption, printing, and examination of the digital images because the COMELEC First Division
"discovered upon inspection that the integrity of the ballots themselves was compromised and that
the ballot boxes were tampered."42 The COMELEC First Division properly invoked Section 6(f), Rule
2 of the COMELEC Rules of Procedure which states:
Sec. 6. Powers and Duties of the Presiding Commissioner. - The powers and duties of the Presiding
Commissioner of a Division when discharging its functions in cases pending before the Division shall
be as follows:

xxxx
(f) To take such other measures as he may deem proper upon consultation with the other members
of the Division.
In this case, the COMELEC En Banc categorically stated that the recounting of the physical ballots
in the revision before the trial court yielded dubious results. The COMELEC En Banc stressed:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically
pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested)
thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election day, too specific to be
random and too precise to be to be accidental which leaves a reasonable mind no other
conclusion except that those 8,387 cases of double-shading were purposely machinated. These
dubious and highly suspicious circumstances left us with no other option but to dispense with the
physical ballots and resort to their digital images. To recount the tampered ballots will only yield us
tampered results defeating the point of this appeal.43 (Emphasis supplied)
The tampering of the ballots and ballot boxes had been fully established and it justified the
decryption of the ballot images in the CF cards.
Inhibition of Commissioners Sarmiento and Velasco
Maliksi alleged that the COMELEC En Banc gravely abused its discretion when it included in the
body of its 14 September 2012 Resolution a discussion of his motion for the inhibition of
Commissioners Sarmiento and Velasco instead of leaving it to their own discretion and prerogative.
We see nothing wrong with the inclusion of the matter of inhibition in the Resolution. Commissioners
Sarmiento and Velasco signed the Resolution which means they concurred with the COMELEC En
Bancs ruling that the motion for their inhibition had no basis. Maliksi himself pointed out that the
matter of inhibition is better left to the Commissioners discretion and thus, he could not impose the
inhibition of Commissioners Sarmiento and Velasco just because Commissioner Lim inhibited
himself from the case. Commissioners Sarmiento and Velasco are not even required, although they
are neither prohibited, to individually explain their vote or to individually answer the motion for
inhibition, like what Commissioner Lim did. In this case, the COMELEC En Banc ruled on the motion
for inhibition. Moreover, the dissent of Commissioners Lim and Velasco in SPR (AE) No. 106-2011 is
not a prejudgment of EAC (AE) No. A-22-2011. While the two cases involved the same parties, the
only issue in SPR (AE) No. 106-2011 is the issuance of a temporary restraining order to stop the
execution of the trial courts decision pending appeal. Contrary to Maliksis allegation, the ruling in
SPR (AE) No. 106-2011 on the temporary restraining order is not a confirmation of the validity of the
decision subject of the appeal in EAC (AE) No. A-22-2011. In the same manner, the fact that
Commissioner Elias R. Yusoph did not take part in SPR (AE) No. 106-2011 does not mean he
should also take no part in EAC (AE) No. A-22-2011 considering that they involve different issues.
In sum, we find no grave abuse of discretion on the part of the COMELEC En Bane when it issued
the assailed Resolution of 14 September 2012.
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution promulgated on 14 September
2012 by the Commission on Elections En Bane which affirmed the 15 August 2012 Resolution of the
Commission on Elections First Division declaring HOMER T. SAQUILA Y AN as the duly-elected
Municipal Mayor of Imus, Cavite. We LIFT the temporary restraining order issued on 11 October

2012. This decision is IMMEDIATELY EXECUTORY considering that the remainder of Saquilayan' s
term of office is only less than five ( 5) months.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
PRESBITERO J. VELASCO, JR.
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

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

MARTIN S. VILLARAMA, JR.

Associate Justice

I certify that J. Perez left his vote of

concurrence with the ponencia of J. Carpio
JOSE PORTUGAL PEREZ
Associate Justice

JOSE C. MENDOZA
Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1

Under Rule 64 in relation to Rule 65 of the Rules of Court.

Rollo, pp. 59-64. Signed by Chairman Sixto S. Briilantes. Jr. and Commissioners Rene V.
Sarmiento, Armando C. Velasco, and Elias R. Yusoph. Commissioner Lucenito N. Tagle took
no part while Commissioner Christian RobertS. Lim inhibited himself from the case.
3

Id. at 95-126. Signed by Commissioners Rene V. Sarmiento, Armando C. Velasco, and

Christian Robert S. Lim.
4

Id. at 95-96. The RTC decision was penned by Judge Cesar A. Mangrobang.

Id. at 130-131.

Id. at 102-104.

Revised General Instructions for the Board of Election Inspectors (BEI) on the Voting,
Counting, and Transmission of Results in Connection with the 10 May 2010 National and
Local Elections.
8

Rollo, pp. 125-126.

Id. at 60.

10

Id.

11

Precinct Count Optical Scan.

12

Rollo, p. 62.

13

Id.

14

Id. at 63.

15

Id. at 283-285, Motion To Print Picture Images Of The Ballots Stored In The Memory
Cards Of TheClustered Precincts.
16

Id. at 286-292.

17

Id. at 293-295.

18

Id. at 298-300.

19

Id. at 302-303.

20

Id. at 304.

21

Id. at 307-309.

22

See rollo, p. 359. Omnibus Order dated 1 September 2011.

23

Rollo, p. 362.

24

Id. at 361.

25

Id. at 363.

26

Id. at 366.

27

Id. at 365.

28

Philippine Guardians Brotherhood, Inc. (PGBI) v. Commission on Elections, G.R. No.

190529, 29 April 2010, 619 SCRA 585, 596.
29

Atty. Octava v. Commission on Elections, 547 Phil. 647 (2007).

30

Salonga v. CA, 336 Phil. 514 (1997).

31

See German Management & Services, Inc. v. Court of Appeals, 258 Phil. 289 (1989).

32

Mendiola v. Civil Service Commission, G.R. No. 100671, 7 April 1993, 221 SCRA 295.

33

G.R. Nos. 199149 and 201350, 22 January 2013.

34

Republic Act No. 9369 refers to "AN ACT AMENDING REPUBLIC ACT NO. 8436,
ENTITLED AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL
ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES,
TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF
ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMBANSA BLG. 881, AS
AMENDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTIONS LAWS,
PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES."
35

Supra note 33.

36

Rules on Electronic Evidence.

37

Rollo, p. 507.

38

Id. at 261-265.

39

Id. at 262.

40

Id. at 264.

41

Id. at 484-516.

42

Id. at 500.

43

Id. at 60.

The Lawphil Project - Arellano Law Foundation

DISSENT
BERSAMIN, J.:
I DISSENT.
Petitioner Emmanuel L. Maliksi and respondent Homer T. Saquilayan vied for the position of Mayor
of the Municipality of Imus, Cavite during the May 10, 2010 Elections. The Municipal Board of
Canvassers (MBC) proclaimed Saquilayan as the winner garnering 48,181 votes, while Maliksi came
in second with 39,682 votes. Maliksi filed an election protest in the Regional Trial Court (R TC) in
Imus, Cavite, alleging discrepancies and irregularities in the counting of votes in 209 clustered
precincts.
Based on the results of the revision, the RTC rendered its November 15, 2011 decision, declaring
Maliksi as the duly-elected Mayor, thus:
xxxx
WHEREFORE, in view of all the foregoing, this Court finds the Election Protest filed by Emmanuel L.
Maliksi meritorious. Accordingly, Emmanuel L. Maliksi is hereby DECLARED as the duly elected
Mayor of the Municipality of Imus, Province of Cavite after having obtained the highest number of
legal votes of 41,088 as against Protestant Homer T. Saquilayan's 40,423 votes or a winning margin
of 665 votes in favor of the former.
Thus, the election and proclamation of Homer T. Saquilayan as Mayor of Imus, Cavite is hereby
ANNULLED and SET ASIDE and he is COMMANDED to immediately CEASE and DESIST from
performing the duties and functions of said office.
Finally, pursuant to Section 4, Rule 14 of A.M. 10-4-1-SC, the Clerk of Court is hereby DIRECTED to
personally deliver the copy of the signed and promulgated decision on the counsels of the parties.
SO ORDERED.1
Aggrieved, Saquilayan sought recourse from the Commission on Elections (COMELEC) by appeal
(docketed as EAC (AE) No. A-22-2011).
In the meantime, Maliksi moved for execution pending appeal, and the RTC granted his motion.
Thus, Maliksi was seated as Mayor, prompting Saquilayan to assail the grant of the motion via
petition for certiorari in the COMELEC (docketed as SPR (AE) No. 106-2011).
After the parties filed their respective briefs in EAC (AE) No. A-22-2011, the COMELEC First
Division issued an order dated March 28, 2012, requiring Saquilayan to deposit the amount
necessary for the printing of the ballot images, thus:

xxxx
In as much as the printing of ballot image in the instant case would entail expense for supplies,
honoraria, one-time fee for the use of the system in the decryption of the CF cards, and storage fee
for the ballot boxes, it is hereby RESOLVED that the appellant be directed to deposit to the Cash
Division of the Commission, the amount of One Hundred Nineteen Thousand Seven Hundred
Fourteen Pesos (P119,714.00)
WHEREFORE, appellant shall deposit the required amount within three days from receipt hereof.
The Division Clerk of the Commission is DIRECTED to immediately purchase the necessary
supplies needed in the printing of ballot image, hence, is authorized [to] withdraw the amount above
stated. She shall submit the liquidation report on the cash advance within thirty (30) days from
termination of proceedings.
SO ORDERED.2
The First Division later issued another order dated April 17, 2012, requiring Saquilayan to augment
his cash deposit.3
Finally, on August 15, 2012, the First Division issued a resolution nullifying the RTCs decision,4 to
wit:
xxxx
WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES, to:
1. NULLIFY the pronouncement of the lower court that protestant-appellee EMMANUEL L.
MALIKSI is the duly-elected Municipal Mayor of Imus, Cavite and HEREBY DECLARES
HOMER T. SAQUILAYAN as the duly-elected Municipal Mayor of the above-mentioned
municipality;
2. Further, the Law Department is hereby DIRECTED:
i. To conduct an investigation as to who were responsible for the tampering of the
ballot boxes for purposes of filing the appropriate information for violation of election
laws; and
ii. To conduct an investigation as to possible violation of election laws and Comelec
Resolutions by herein protestant-appellee EMMANUEL L. MALIKSI as to how he
was able to secure a photocopy of the official ballot which he attached in his Election
Protest.
SO ORDERED.5
In its resolution, the First Division ratiocinated that:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had

been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital image of the appealed ballots.
In appreciating the appealed ballots, the Commission used the following guidelines:
xxxx
Pursuant to this principle, to be able to determine fully the true will of the electorate, we scrutinized
the appealed ballots by using its digital images since there is an allegation of ballot tampering.
xxxx
After counting and appreciation of the appealed clustered precincts by this Commission (First
Division), protestant-appellee Maliksi got FORTY THOUSAND NINETY-TWO (40,092) votes while
protestee-appellant Saquilayan got FORTY-EIGHT THOUSAND FIVE HUNDRED TWENTY-ONE
(48,521) or a difference of EIGHT THOUSAND FOUR HUNDRED TWENTY-NINE (8,429) votes.6
xxxx
Maliksi filed an omnibus motion,7 seeking, inter alia, the reconsideration of the First Division
Resolution based on the following arguments, namely: (a) the decryption proceedings violated his
right to due process and were null and void for being held without notice to the parties; and (b) ballot
images were secondary evidence that could be resorted to only in the event that the ballots were
unavailable, or when sufficient proof existed that tampering or substitution had taken place.
On September 14, 2012, the COMELEC En Banc issued a resolution, disposing as follows:
xxxx
WHEREFORE, premises considered, the MOTION FOR RECONSIDERATION of ProtestantAppellee EMMANUEL L. MALIKSI is hereby DENIED for lack of merit. Consequently, we are
AFFIRMING the August 15, 2012 Resolution of the First Division NULLIFYING the November 15,
2011 Decision of the Regional Trial Court, Branch 22 of Imus, Cavite.
SO ORDERED.8
Maliksi brought this special civil action for certiorari, reiterating that: (a) his right to due process of
law was violated when he was not notified of the decryption, printing and examination of the digital
images of the ballots; and (b) the printouts of the picture images of the ballots were secondary
evidence to be resorted to only when the ballots were not available, or when there was evidence that
the integrity of the ballots had not been preserved.
I vote to grant the petition for certiorari.
I submit that the proceedings conducted by the First Division, the results of which became the basis
of the questioned resolution, were void and ineffectual for being in abject violation of Maliksis right to
due process of law.
The picture images of the ballots are electronic documents that are regarded as the equivalents of
the original official ballots themselves.9 In Vinzons-Chato v. House of Representatives Electoral
Tribunal,10 the Court held that "the picture images of the ballots, as scanned and recorded by the

PCOS, are likewise official ballots that faithfully capture in electronic form the votes cast by the
voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional
equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest."
That the two documents the official ballot and its picture image are considered "original
documents" simply means that both of them are given equal probative weight. In short, when either
is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to
quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings
had before them without notice to the parties. Despite the equal probative weight accorded to the
official ballots and the printouts of their picture images, the rules for the revision of ballots adopted
for their respective proceedings still consider the official ballots to be the primary or best evidence of
the voters will. In that regard, the picture images of the ballots are to be used only when it is first
shown that the official ballots are lost or their integrity has been compromised.
For instance, Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal
Election Contests, which governs the proceedings in the Regional Trial Courts exercising original
jurisdiction over election protests, provides:
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot
box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to
instruct the printing of the picture image of the ballots stored in the data storage device for the
precinct. The court shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. Only
after this determination can the printed picture image be used for the recount.
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. The revision of votes shall be done through the use of
appropriate PCOS machines or manually and visually, as the Tribunal may determine, and
according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not
preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing
of the picture image of the ballots of the subject precinct stored in the data storage device for the
same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a
non-partisan technical person who shall conduct the necessary authentication process to ensure that
the data or images stored are genuine and not merely substitutes. It is only upon such determination
that the printed picture image can be used for the revision of votes.
xxxx
Also, the House of Representative Electoral Tribunals Guidelines on the Revision of Ballots requires
a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots
and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of
tampering or substitutions, to wit:

Section 10. Revision of Ballots

xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the
integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as
when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture
images of the ballots of the subject precinct stored in the data storage device for the same precinct.
The Tribunal shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the revision. (as
amended per Resolution of February 10, 2011).
xxxx
Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec Rules of Procedure on
Disputes In An Automated Election System in Connection with the May 10, 2010 Elections) itself
requires that "the Recount Committee determines that the integrity of the ballots has been violated or
has not been preserved, or are wet and otherwise in such a condition that (the ballots) cannot be
recounted" before the printing of the image of the ballots should be made, and that such printing
should be done "in the presence of the parties," to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the
ballots has been preserved or that no signs of tampering of the ballots are present, will the recount
proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet
or are otherwise in such a condition that it could not be recounted, the Recount Committee shall
follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes. (As amended by COMELEC Resolution No. 9164, March 16, 2011)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the
ballots may be resorted to only after the proper Revision/Recount Committee has first determined
that the integrity of the ballots and the ballot box was not preserved. The foregoing rules further
require that the decryption of the images stored in the CF cards and the printing of the decrypted
images take place during the revision or recount proceedings, and that it is the Revision/Recount
Committee that determines whether the ballots are unreliable.

There is a good reason for thus fixing where and by whom the decryption and the printing should be
conducted. It is during the revision or recount conducted by the Revision/Recount Committee when
the parties are allowed to be represented, with their representatives witnessing the proceedings and
timely raising their objections in the course of the proceedings. Moreover, whenever the
Revision/Recount Committee makes any determination that the ballots have been tampered and
have become unreliable, the parties are immediately made aware of such determination.
Here, however, it was not the Revision/Recount Committee or the RTC exercising its original
jurisdiction over the protest that made the finding that the ballots had been tampered, but the First
Division in the exercise of its appellate jurisdiction. Maliksi was not immediately made aware of that
crucial finding because the First Division did not even issue any written resolution stating its reasons
for ordering the printing of the picture images.
The parties were formally notified that the First Division had found that the ballots had been
tampered only when they received the resolution of August 15, 2012, whereby the First Division
nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the
resolution of the First Division that effect was unusually mute about the factual bases for the finding
of ballot box tampering, and did not also particularize how and why the First Division was concluding
that the integrity of the ballots had been compromised. All that the First Division uttered as
justification was a simple generality of the same being apparent from the allegations of ballot and
ballot box tampering and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital image of the appealed ballots.11 (Emphasis supplied)
xxxx
It was the COMELEC En Bancs assailed resolution of September 14, 2012 that later on provided
the explanation to justify the First Divisions resort to the picture images of the ballots, by observing
that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and the
votes for Saquilayan had led to the belief that the ballots had been tampered. However, that
observation did not cure the First Divisions lapse and did not erase the irregularity that had already
invalidated the First Divisions proceedings.
The blatant disregard of Maliksis right to be informed of the decision to print the picture images of
the ballots and to conduct the recount proceedings during the appellate stage cannot be brushed
aside by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration.
To be exact, the motion for reconsideration was actually directed against the entire resolution of the
First Division, while Maliksis claim of due process violation is directed only against the First
Divisions recount proceedings that resulted in the prejudicial result rendered against him. I note that
the First Division did not issue any order directing the recount. Without the written order, Maliksi was
deprived of the chance to seek any reconsideration or even to assail the irregularly-held recount
through a seasonable petition for certiorari in this Court. In that context, he had no real opportunity to
assail the conduct of the recount proceedings.
I disagree that the service of the orders requiring Saquilayan to make the cash deposits for the
printing of the picture images made Maliksi aware of the First Divisions decision to print the picture
images. The orders still did not meet the requirement of due process because they did not

specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer
the factual bases for the finding of tampering. Hence, to leave for Maliksi to surmise on the factual
bases for finding the need to print the picture images still violated the principles of fair play, because
the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party
to be potentially prejudiced thereby firmly rested on the shoulders of the First Division.
As I see it, the First Division arbitrarily arrogated unto itself the conduct of the revision/recount
proceedings and recounted the ballots, contrary to the regular procedure of remanding the protest to
the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of
the picture images and the revision of the ballots on the basis thereof. Quite unexpectedly, the
COMELEC En Banc upheld the First Divisions unwarranted deviation from the standard procedures
by invoking the COMELECs power to "take such measures as the Presiding Commissioner may
deem proper," and even citing the Courts minute resolution in Alliance of Barangay Concerns (ABC)
Party-List v. Commission on Elections12 to the effect that the "COMELEC has the power to adopt
procedures that will ensure the speedy resolution of its cases. The Court will not interfere with its
exercise of this prerogative so long as the parties are amply heard on their opposing claims."13
The COMELEC En Banc should not have upheld the deviation of the First Division. Based on the
pronouncement in Alliance of Barangay Concerns v. COMELEC, the power of the COMELEC to
adopt procedures that will ensure the speedy resolution of its cases should still be exercised only
after giving to all the parties the opportunity to be heard on their opposing claims. The parties right
to be heard upon adversarial issues and matters is never to be waived or sacrificed, or to be treated
so lightly because of the possibility of the substantial prejudice to be thereby caused to the parties,
or to any of them.
Mendoza v. Commission on Elections14 is instructive on when notice to and the participation of the
parties are required. In that case, after the revision of the ballots and after the election protest case
was submitted for decision, the ballots and ballot boxes were transferred to the Senate Electoral
Tribunal (SET) in connection with a protest case pending therein. The petitioner later learned that
the COMELEC, with the permission of the SET, had meanwhile conducted proceedings within the
SETs premises. The petitioner claimed that his right to due process was violated because he was
not given notice by the COMELEC that it would be conducting further proceedings within the SET
premises. The Court held otherwise, however, and pointed out:
After consideration of the respondents Comments and the petitioners petition and Reply, we hold
that the contested proceedings at the SET ("contested proceedings") are no longer part of the
adversarial aspects of the election contest that would require notice of hearing and the participation
of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim
in the petitioner's Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested
ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting
"further proceedings" requiring notice to the parties. There is no revision or correction of the ballots
because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating
with the SET, is simply resolving the submitted protest case before it. The parties necessarily take
no part in said deliberation, which require utmost secrecy. Needless to state, the actual decisionmaking process is supposed to be conducted only by the designated members of the Second
Division of the public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a
quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial
election contest on the merits. These deliberations are no different from judicial deliberations which

are considered confidential and privileged. We find it significant that the private respondents
Comment fully supported the COMELECs position and disavowed any participation in the contested
proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that
the private respondent was ever present in any proceeding at the SET relating to the provincial
election contest.
To conclude, the rights to notice and to be heard are not material considerations in the COMELECs
handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET;
no proceedings at the instance of one party or of COMELEC has been conducted at the SET that
would require notice and hearing because of the possibility of prejudice to the other party. The
COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of
deliberating on the merits of the provincial election contest. In the context of our standard of review
for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation
of ballots this deliberation entailed.15 (Emphasis supplied.)
Here, the First Division denominated the proceedings it conducted as an "appreciation of ballots" like
in Mendoza. Unlike in Mendoza, however, the proceedings conducted by the First Division were
adversarial, in that the proceedings included the decryption and printing of the picture images of the
ballots and the recount of the votes were to be based on the printouts of the picture images. The
First Division did not simply review the findings of the RTC and the Revision Committee, but actually
conducted its own recount proceedings using the printouts of the picture image of the ballots. As
such, the First Division was bound to notify the parties to enable them to participate in the
proceedings.
We should not ignore that the parties participation during the revision/recount proceedings would
not benefit only the parties. Such participation was as vital and significant for the COMELEC as well,
for only by their participation would the COMELECs proceedings attain credibility as to the result. In
this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the
decryption and printing of the picture images of the ballots and the recount proceedings. The
COMELEC En Banc was merely content with listing the guidelines that the First Division had
followed in the appreciation of the ballots and the results of the recount. In short, there was
vagueness as to what rule had been followed in the decryption and printing proceeding.
Moreover, I respectfully point out that the First Division should not conduct the proceedings now
being assailed because it was then exercising appellate jurisdiction as to which no existing rule of
procedure allowed the First Division to conduct the recount in the first instance. The recount
proceedings authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, are to be
conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over
all election protests involving elective regional (the autonomous regions), provincial and city
officials.16
On the other hand, we have Section 6 (l), Rule 15 of COMELEC Resolution No. 8804, as amended
by COMELEC Resolution No. 9164, which clearly requires the parties presence during the printing
of the images of the ballots, thus:
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in

the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes. (Emphasis supplied.)
xxxx
I write this dissent not to validate the victory of any of the parties in the 2010 Elections. That is not
the concern of the Court as yet. I dissent only because the Court should not countenance a denial of
the fundamental right to due process, which is a cornerstone of our legal system.17
I am mindful of the urgent need to speedily resolve this protest because the term of the Mayoralty
position involved is about to end. Accordingly, I urge that we quickly remand this case to the
COMELEC, instead of to the RTC, for the conduct of the decryption, printing and recount
proceedings, with due notice to all the parties and opportunity for them to be present and to
participate during such proceedings. Nothing less serves the ideal objective safeguarded by the
Constitution.
IN VIEW OF THE FOREGOING, I vote to GRANT the petition for certiorari, and to REMAND the
protest to the Commission on Elections for the decryption of the picture images of the ballots after
due authentication, for the printing of the decrypted ballot images, and for the conduct of the recount
proceedings using the printouts of the ballot images, with notice to and in the presence of the parties
or their representatives.
LUCAS P. BERSAMIN
Associate Justice

Footnotes
1

Rollo, pp. 95-96

Id. at 362.

Id. at 366.

Id. at 95-126.

Id. at 125.

Id. at 102-124.

Id. at 76-92

Id. at 63.

2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3 (r) defines
"electronic document" as follows:

xxxx
(r) Electronic documentrefers to the record of information or the representation of
information, data, figures, symbols or other modes of written expression, described
or however represented, by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally-signed documents and any printout or output,
readable by sight or other means that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the picture
image of the ballots or the electronic copies of the electronic returns, the statements
of votes, the certificates of canvass, the audit log, and other electronic data
processed by the PCOS and consolidation machines.
xxxx
Likewise, COMELEC Resolution No. 8804 (In Re: COMELEC Rules of Procedure on
Disputes in an Automated Election System in Connection with the May 10, 2010
Elections), Rule 2, Section 1(q) defines "electronic document" as follows:
xxxx
(q) Electronic document refers to information or the representation of information,
data, figures, symbols or other modes of written expression, described or however
represented, by which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced electronically. It
includes digitally signed documents and any print-out or output, readable by sight or
other means which accurately reflects the electronic document.
For purposes of these Rules, electronic documents refer to either the picture image
of the ballots and the electronic copies of the electronic returns, the statements of
votes, the certificates of canvass, the audit log, and of the other electronic data
relative to the processing done by the PCOS machines and the various consolidation
machines.
xxxx
10

G.R. No. 199149, January 22, 2013.

11

Rollo, p. 102.

12

G.R. No. 199050, August 28, 2012.

13

Rollo, pp. 60-61.

14

G. R. No. 188308, October 15, 2009, 603 SCRA 692.

15

Id. at 716-717.

16

COMELEC Resolution No. 8804, Rule 6, Section 1.

17

Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635.