Pre-proclamation Controversy

(Manual Election vs. Automated

Election)
The first nationwide automated elections held on 10 May 2010 highlighted some inadequacies in
the Philippine legal framework on elections. Although the country openly embraced the use of
technology to fast track the determination of election results and to ensure the credibility of the
electoral process, many aspects of the legal framework got stuck in the twilight zone such as the
provisions on pre-proclamation controversy.

In general, a pre-proclamation controversy is an administrative remedy to correct errors,

discrepancies, defects or fraud committed at the canvassing level. Summary in nature, the
remedy covers such errors, discrepancies, defects or fraud that are immediately
discoverable on the face of the election returns.

Its purpose is to ensure that the proclamation of winning candidates is prima facie regular.
Fraud or irregularity that are not immediately discoverable on the face of the election
returns such as those affecting the appreciation of the ballots or involving fake or
substituted ballots are properly subject of another remedy (an election protest). Preproclamation controversy is explicitly recognized by the 1987 Constitution.

Admittedly, however, pre-proclamation controversy has specific context under the manual
election system when the 1987 Constitution was drafted and ratified the manual
preparation, transmission and canvassing of election returns. The Omnibus Election
Code, which predates the 1987 Constitution, allows any candidate or any registered political
party or coalition of political parties to file a pre-proclamation petition on the following
grounds:
1.

Illegal composition or proceedings of the board of canvassers;

2. The canvassed election returns are incomplete, contain material defects, appear
to be tampered with or falsified, or contain discrepancies in the same returns or
in other authentic copies thereof as mentioned in section 233 (i.e., when election
returns are delayed, lost, destroyed), section 234 (i.e., when there are material
defects in the election returns), section 235 (i.e., when election returns appears
to be tampered with or falsified) and section 236 (i.e., where there are
discrepancies in the election returns) of the OEC;
3. The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
4. When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.
As a general rule, pre-proclamation controversy is not allowed for the elections for President, VicePresident, Senators and Member of the House of Representatives on matters relating to the

preparation, transmission, receipt, custody and appreciation of election returns or the certificates of
canvass, as the case may be, except in the following instances:[13]
(a) There is a discrepancy in other authentic copies of the certificate of canvass or in any of its
supporting document such as statement of votes by city/municipality/by precinct or discrepancy in
the votes of any candidate in words and figures in the certificate;
(b) There is a discrepancy in the votes of any candidate in words and figures in the certificates of
canvass against the aggregate number of votes appearing in the election returns of precincts
covered by the certificate of canvass;
(c) When the certificate of canvass, duly certified by the board of canvass of each province, city of
district, appears to be incomplete; and
(d) When it appears that any certificate of canvass or supporting statement of votes by
city/municipality or by precinct bears erasures or alteration which may cast doubt as to the veracity
of the number of votes stated therein, and may affect the result of the election.
Rep. Act No. 9369,[14] which provides the general framework for automated elections,
made no mention of any change on the grounds that may be raised in pre-proclamation
controversy despite the contemplated shift in the processes of preparation, transmission
and canvassing of election returns as follows:
First, unlike in the manual elections where the election returns is prepared by hand, the election
returns under the system adopted in 10 May 2010 elections is generated by the Precinct Count
Optical Scan (PCOS) machine.
Second, the transmission of the election returns is done through electronic means and received by
the Central Canvassing Unit (CCU).
Third, the CCU also does the consolidation of the results automatically and generates the requisite
Certificate of Canvass (COC).
For the 2010 election, the Commission on Elections (COMELEC) limited the grounds that may be
raised in a pre-proclamation petition to:
(a) Illegal composition of the BOC, and
(b) illegal proceedings of the BOC (i.e.precipitate canvassing, terrorism, lack of sufficient notice
to the members of the BOCs, and improper venue)
The poll body was of the opinion that aside from those pertaining to the composition and
proceedings of the BOC, legislative amendment is required so that the other grounds for preproclamation controversy could be applied in the context of an automated election since the
prevailing laws contemplate the manual preparation, transmission and canvassing of election
returns.
Some COMELEC officials were also of the view that the feared discrepancies or errors in the
generation of election returns by the PCOS machine, or in its transmission and canvass, will never
occur.
As a policy, COMELEC also favored the limitation on the grounds for pre-proclamation controversies
to speed up delivery of the results of the votes.

Unfortunately, some errors in the transmission of election returns did occur. In the May 2010
elections, it has been reported that the Final Testing and Sealing (FTS) results were erroneously
transmitted, instead of the actual election results, in at least fifty-seven provinces.
It is my considered view that while legislative amendment is desirable so as to clearly lay down the
policy on pre-proclamation as a remedy, the general language used by existing laws allows its
application in an automated election.
Incomplete, erroneous or fraudulent election returns and certificates of canvass could very well
happen in machine-generated and transmitted election returns and certificates of canvass. In fact,
it can even be reasonably argued that in retaining the remedy of pre-proclamation controversy in
Rep. Act No. 9369, Congress intended it to apply in the context of automated election.
RECOMMENDATION of Author: (pwede na di na to isali sa report. For reference lang)
In my opinion, the better policy is not to obliterate pre-proclamation controversy as a remedy, but
to reframe and retool it in the context of the PCOS automated election. The automated system is
still in its infancy and rather than suppress legitimate grievances for the sake of expediency, preproclamation controversy should be appreciated in the light of its purpose to ensure that the
proclamation of winning candidates is prima facie regular. The alternative is to cast a blind eye to
the possible kinks in the system and to push the aggrieved parties to the more arduous and costly
remedy of election protest.
Thus, in addition to the illegal composition and proceedings of the BOC, it is recommended that
following[18] be considered by COMELE as proper grounds for pre-proclamation controversy:
1.

When the election returns or certificate of canvass, in appropriate cases, which are
electronically transmitted for canvass:
a. Are incomplete;
b. Contain votes or data that are different from those reflected in the other copies
thereof, whether printed or electronic;
c. Have come from non-existent precincts; or
d. Not from the appropriate PCOS machines.
e. Not from the appropriate Central Canvassing Unit (CCU)

2. When the votes in the same election return or certificate of canvass is tabulated more than
once;
3. When there are discrepancies in the figures reflected in the statement of votes and those in the
certificate of canvass;
4. When falsified election returns or certificate of canvass have been canvassed; and

5. When the CCU used for Canvassing is not the one officially appropriated by COMELEC for
canvassing.