The Supreme Court has ruled that the Commission on Elections may be compelled to allow groups to witness the printing of ballots and to disclose the complete transmission of data and communications network architecture of the vote counting machines (VCMs) used in the Automated Election System (AES).
But the high court stressed that the law does not allow the Comelec “to allow physical access to its hubs, servers, and data centers.”
“At most, the Comelec may be compelled to provide information regarding its technical hubs and data centers, as it had already done so, but it cannot be compelled to allow what the law clearly prohibits,” the tribunal declared in its en banc decision penned by Associate Justice Ricardo R. Rosario.
“Unlike access to the premises of the printer for purposes of guarding the same or witnessing the printing and distribution of the ballots and returns, there is no clear legal right to allow physical access to the technical hubs or data centers of the AES,” the SC stressed.
The SC ruling, made public on Jan. 18, dismissed for being moot and academic the petition filed by the National Press Club of the Philippines, Automated Election System Watch, and Guardians Brotherhood, Inc.
The petitioners wanted the Comelec to implement the use of digital signatures in relation to the 2022 national and local elections.
They asked the high court to compel the Comelec to disclose information on and allow access and inspection of the following: (a) printing of ballots at the National Printing Office (NPO), including the examination of the ballots already printed and the reported defective ballots; (b) configuration, preparation, and testing of the secure digital (SD) cards to be used in the VCMs through Comelec-accredited observers in its Sta. Rosa, Laguna warehouse;
(c) preparation, testing, and deployment of the VCMs; (d) National Technical Support Center and technical hubs and transmission diagram or data/communications network architecture, including all details of the transmission of the transmission router server and/or the “Meet-Me-Room” and all devices and equipment that will be used to transmit election results.
Despite the mootness of the petition, the SC opted to resolve the issues “due to the paramount public interest involved.”
The high court reiterated its 2012 ruling which held that the Comelec is not required to have the election returns digitally signed by the Board of Election Inspectors (BEI) because the digital signatures generated by the VCMs are sufficient compliance to Republic Act No. (RA) 8436, the AES law.
“One of the hallmarks of the automated election system is the digital signature of BEI members on the election returns, and of members of the Board of Canvassers on the certificates of canvass. However, since automated elections began in the Philippines in 2010, the digital signature on the election returns have come from the VCMs and not from the teachers who comprise the BEI,” it said.
It also cited another previous ruling which stated that the adoption of another method to digitally sign the election results is subject to the Comelec’s sound judgment.
“The exercise of discretion on how to implement the chosen AES must be accorded with the presumption of regularity and should be respected,” it said.
On the printing of ballots, the SC said that the Comelec is duty-bound under Section 187 of the Omnibus Election Code to allow designated watchers to witness the printing.
“As long as the request has been made… it is the Comelec’s ministerial duty to allow the designated watcher/s to observe the printing of the ballots,” it also said.
“Under the law, the designated watchers are even entitled to guard the premises of the printer,” the high court noted.
Also, the SC said the law does not limit the ways by which the Comelec may allow the watchers to witness the printing process.
“Indeed, the now ubiquitous livestream format, among other methods, has helped strike a balance between ensuring the integrity of the ballots and transparency of the election process…. This is not to say, however, that on-site viewing of the printing process may be dispensed with entirely,” it said.
The SC also said the Comelec may not be compelled to allow the witnessing of the configuration and preparation of SD cards and VCMs as the AES Law does not specifically enjoin the Comelec to do so.
“The fact that the law commands the Comelec to provide test ballots and test forms is a clear indication that the examination and testing take place after the configuration of the devices and not during or before said configuration. Certainly, it would be absurd to allow the examination and testing of unconfigured equipment or devices,” it said.
Thus, the SC said what may be allowed is the examination and testing by the public of SD cards and VCMs, subject to reasonable security protocols.
It emphasized that the credibility of the AES is directly proportional to the transparency of the entire process, from the preparation of the ballots to the canvassing of votes.
It said that while the State aims to protect the secrecy and sanctity not only of the ballot but also of all election, consolidation, and transmission documents, this must be interpreted not in isolation, but in relation to the need for the process to be transparent and credible, and in line with the policy of ensuring not only free, orderly, honest, peaceful, and credible elections, but also informed elections.
On the petitioners’ request for “all details of the transmission of the transmission router server and/or the ‘Meet-Me-Room,’” the SC found the plea too vague and broad to determine which details or documents the Comelec should disclose.
The SC said it cannot compel the Comelec to reveal all details, some of which may contain confidential information which, if divulged, could pose serious security risks.
Neither can the Comelec be compelled to allow physical access to its hubs, servers, and data centers, it said.
Noting that the constitutional policy of full public disclosure of transactions involving public interest and the right to information are restricted by reasonable conditions, the SC held that the AES Law penalizes the act of causing access to facilities whether classified or declassified and whether said acts affect the electoral process or results, stressing that such acts are punishable regardless of authorization.
