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^{DISSENTING OPINION}

PANGANIBAN, J.:

With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly violated its express and specific statutory mandate to conduct automated elections in the Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec gravely abused its discretion in the following acts:

1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a mayoralty candidate in said municipality were not tallied by the counting machine assigned to said town

2. In changing the venue and the mode of counting from automated to manual, due to alleged imminent danger of violence

3. In violating its own Resolution ordering both an automated count and a parallel manual count, by actually holding only a manual count, without giving any reason for completely abandoning the automated system which was already 65 percent complete in the entire province

4. In counting and appreciating the automated ballots with the use of the rules peculiar to manual elections, not to the automated election system; that is, the Comelec manually tallied the ballots in a way different from how the automated machines would have counted them; hence, the results as manually appreciated substantially differed from the machine-generated ones

5. In issuing, without due process of law its assailed Minute Resolutions relating to the change in the manner and venue of counting

Let me explain each of these grounds.

^{1. Stoppage of Automated Count Legally and Factually Flawed}

To begin with, there is absolutely no dispute that Congress required the Comelec to conduct automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM), including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436 explicitly mandates the Comelec to "use an automated election system xxx for the process of voting, counting of votes and canvassing/consolidation of results"¹ in the ARMM.

However, contrary to its above clear mandate, the Comelec abandoned the ongoing automated counting of votes in Sulu during the last elections and substituted it mid-stream with the manual system. This reversion to the manual election system is nowhere authorized in the same or any other law. Clearly, the poll body has no legislative power to modify, much less to contravene, the law.² Neither can it assume powers not granted to it either by the Constitution or by Congress.

On the other hand, the majority justifies this reversion to the manual method as a valid exercise of the Comelec's discretion to ensure a free, orderly, honest, and credible electoral exercise, stressing that this Court's ruling is "in cadence with the movement towards empowering the Comelec in order that it can more effectively perform its duty of safeguarding the sanctity of our elections." I respectfully say, however, that such "movement" should be canalized by the proposition that the Comelec may exercise its discretion only in accordance with law and never in violation of it.

In any event, let me delve deeper into the factual and legal antecedents which led to the stoppage of the automated count, if only to demonstrate the utter lack of prudence in the Comelecs actions.

^{Factual Antecedents of Stoppage of Count}

About 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting of the ballots was being conducted at the Sulu State College, some election inspectors as well as watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose Tolentino Jr., to allegedly patent discrepancies between the printed election returns and the actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty. Tolentino picked out three local ballots that had already been counted. He noticed that while they contained votes for a certain mayoralty candidate, such votes were not credited in the latters favor in the precinct election return, which showed zero (0) vote for that candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately order the suspension of the automated counting of the ballots from Pata. Tracing the error to misprinted ballots, he forthwith ordered a province-wide suspension of the automated count, on the suspicion that the printing defect was prevalent province-wide. At that point, about 65 percent of the ballots cast in Sulu were already machine-counted. Intervenor Jikiri alleged he was at the time leading the count.

I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal authority to order even a temporary stoppage of the counting. During the Oral Argument on September 25, 1998, he candidly admitted that he had no statutory or even regulatory basis for his action.³ Second, the verbal manifestation of a BEI member or a watcher that a vote for a certain candidate was not reflected in the election return conferred no legal authority upon the election official to examine the ballots personally. Third, granting that Atty. Tolentino had such authority, the factual basis of his exercise of discretion was sorely insufficient. He saw only three (3) ballots out of about 200 from a single precinct in Pata, which had 27 precincts; noted that the votes for a certain mayoralty candidate, which were indicated in the three ballots, were not reflected on the election return, which instead printed zero vote for such candidate; then, without much ado, ordered the stoppage of the counting of the rest of the ballots from Pata. At the time, only 13 ballot boxes had been, and 14 more remained to be, counted. Under RA 8436, it would have taken only one (1) minute for the counting machine to process 100 to 150 ballots.⁴ Thus, it would not have taken very long to finish the count for the entire municipality.

Atty. Tolentino did not even try to get the aggregate votes cast in the municipality for each mayoral candidate, in order to see if three or even 200 votes would spell a material difference in the result. Even under the manual election system, election cases are heard on the assumption that the protested ballots or returns would, if validated, change the election results. By analogy, the same logic should apply to automated elections. But Atty. Tolentino immediately assumed that the three ballots would be determinative of the election results in the municipality, where about 5,400⁵ votes had been cast. Not even the manual election system allows a suspension of the entire counting process on the mere allegation that a few ballots or votes for one candidate in one precinct are questionable.

Doctrinally, it would be imprudent, even dangerous, to discard the automated system cavalierly and thereafter resort to the manual count on the flimsy basis that a few ballots were allegedly miscounted. Such holding would give losing parties and candidates a convenient device to scuttle the automated system by the simple expedient of alleging that a few ballots were improperly counted by the machine. It would give them a convenient excuse to revive and use an antiquated and fraud-ridden electoral method and thus lead to a prolonged counting and canvassing, the very evil sought to be remedied by RA 8436.

^{Remedy in Cases of False Returns and Questionable Ballots}

Moreover, since verbal complaints of incorrect tallying by the machine were not a valid reason to suspend the counting, the charges made by the candidates watchers should have prompted Atty. Tolentino to require the complaining parties to file their protests for proper action in accordance with law and the Comelec rules. During the canvassing (which, under the automated system, is also done separately from the counting), the adversely affected parties could have objected to the inclusion of the questioned election return and followed, by analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of the OEC, as amended by Section 20 of RA 7166. Had that recourse failed, the aggrieved candidates remedy was an election protest. Suspending and finally stopping the automated count were completely uncalled for. There simply was no basis for it.

Making matters worse, Atty. Tolentino directed the suspension of the automated count in all the 18 municipalities of Sulu, even though the alleged errors were reportedly discovered in partial returns from only six (6) municipalities -- Pata, Talipao, Siasi, Indanan, Tapul and Jolo.

If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count must be set aside and declared null and void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.⁶ But there are even more odious grounds, as I will now show.

^{2. No Imminent Danger of Violence}

The ponencia justifies the Comelec's precipitate shift to manual counting "in view of the fast deteriorating peace and order situation caused by the delay in the counting of the votes." It pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP provincial directors Comprehensive Report on the Sulu Election⁷ dated May 18, 1998, which was submitted to this Court by Private Respondent Tan. Said Report makes no mention of or reference to any incident that would substantiate Tolentino's statement. Rather, it bares the relative tranquillity of the recent electoral process in the province, viz.:

1. The conduct of election in the province of Sulu, by her own standard, was generally peaceful sans some isolated cases of mortar shelling and failure of voting in some barangays of Panamao, ballot boxes damaged resulting from pump boat capsizing in Tongkil and failure of conducting elections in two precincts is Siasi, all of Sulu. Automated counting of the ballots, however, was stopped the day after the election when inconsistency in the print out of results were discovered in the counting machine assigned to Pata municipality. This prompted the COMELEC to order the counting to be done in Manila.

x x x

SIGNIFICANT INCIDENTS

"Voting in the areas assigned to Sulu PPO was generally peaceful and orderly except for some minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat carrying them capsized. There was also allegation of ballot snatching thereat and this matter is being investigated by this PPO. In Indanan, there was a minor misunderstanding between the Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo, particularly at the polling places at Hadji Butu School of Arts and Trade there was a short commotion among followers of candidates.

In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao. Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group reacted.

x x x

3. ASSESSMENT

The conduct of election in Sulu was generally peaceful compared with the previous elections. Political rivalry was less intense; the extent of cheating was also less; and a good number of registered voters actually voted. This phenomenon may have been brought about by the fact that since there were four sets of candidates, the partisan armed groups were thinly distributed, meaning the more number of groupings, the lesser is the threat of violence.

Even assuming arguendo that imminent violence threatened the counting center, such situation would justify only the transfer of the counting venue. Even then, the concurrence of the majority of the watchers for such transfer is still required under the OEC. It does not appear on record that the consent of the watchers was ever sought, not to say given. On the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of venue for the counting, was issued ex parte by the Comelec en banc, without any petition, recommendation or proper investigation for said purpose. Such arbitrary and peremptory issuance, in violation of law, again amounted to an abusive exercise of discretion.

But, even granting arguendo that the transfer of the counting venue was valid, the abandonment of the automated count was definitely not a necessary legal consequence thereof. In other words, only the venue could have been changed, but not the method of counting. If the Comelec had conducted an automated count in Manila, that may even be arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify the manualization of the counting process; if at all, it only authorized a change of venue of the automated count.

^{3. No Justification to Abandon Automated Count}

Please note that the Comelec, in its Minute Resolution 98-1796⁸ dated May 15, 1998, actually resolved to conduct a parallel manual counting [i]n all 18 municipalities of Sulu xxx.⁹ Originally, it would appear that the Commission intended to conduct in Manila an automated count first, and then a parallel manual count. Hence, it ordered the air-lifting to its head office of all the relevant election paraphernalia, including the automated machines.

However, the Comelec did not obey its own Resolution. Worse, it did not explain why this vital provision requiring an automated count was not implemented, and why only a manual count was conducted. I could have conceded the propriety of a parallel manual count -- which plainly means that both automated and manual counts were to be performed. Although not expressly sanctioned by law, such parallel manual count may arguably be regarded as falling within the residual regulatory authority of the Comelec. Unfortunately and inexplicably, however, only a manual count was done; the Resolution ordering an automated count was simply ignored without the Comelec giving any reason therefor.

To repeat, there was no reason at all to completely abandon the automated count. The Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I submit, unexplainable reasons, it simply substituted the will of Congress with its own arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction.

^{4. Rules for Manual Elections Different from Those for the Automated System}

I would like to emphasize that the resort to a manual appreciation of the ballots is precluded by the basic features of the automated election system,¹⁰ which requires minimum human intervention, the use of a special quality of ballot paper, the use of security codes, the mere shading of an oval corresponding to the name of the candidate voted for, and the mechanized discrimination of genuine from spurious ballots, as well as rejection of fake or counterfeit ones. The automated system takes away the discretion of the boards of election inspectors (BEI) in appreciating ballots.¹¹

A simple cursory reading of the rules¹² laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election easily discloses that they are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system, wherein the names of the candidates are printed on the ballots beforehand and are not handwritten by the voters themselves, and wherein each name has a corresponding oval which must have its own exact location on the ballot, conforming to the design that has been programmed in the counting machine. In other words, the automated election system has peculiar features designed for electronic, not manual, verification.

Under the automated system, the machines are programmed to recognize or read only the presence of carbon in the ovals. To erase a vote is, in fact, not advisable (the voter may, under Comelec rules, ask for a new ballot), because some carbon content may be left in the oval that would still be recognized and tallied by the machine. Human handling of the automated ballots will also make it all too easy to nullify the voters will. A blank ballot (in which the voter intentionally refrained from voting for any candidate) can be easily pencil-marked in favor of a certain candidate. Or a vote can be facilely nullified by simply marking the oval of another candidate for the same office. The point is: human handling of automated ballots is fraught with dangers to the integrity of the votes therein; it actually makes the political exercise more vulnerable to electoral fraud.

To be more concrete and specific, during the physical examination of the ballots used in several precincts in Pata and Jolo, conducted pursuant to the Courts Resolution dated February 9, 1999, as well as in the operation of the counting machines to which these ballots were fed,¹³ there were significant discrepancies between the results of the manual count, as reflected in the official election returns, and those of the machine count.¹⁴ Such were brought about by the following:

1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC¹⁵ and the Comelec rules.¹⁶ On the other hand, these were ignored by the machines, which could detect only ovals with sufficient carbon content.

2. Some ovals that were only partly shaded were not read by the machines, but were counted by the BEI, pursuant to said Comelec rules.

3. In some ballots, several ovals for candidates for one office were shaded but, except for one, also crossed out or marked with an X. The counting machine invalidated these votes, because it could not recognize the difference between an X mark and any other mark on the oval. All it could read was the carbon content, and due to the presence of carbon on more than one oval for a single office, the machine concluded that there was an over-vote. Under the automated program, an over-vote is considered no vote. However, the BEIs counted the remaining uncrossed vote, considering it the voters true and valid vote, pursuant to the OEC rules.¹⁷

4. Ballots on which the voter manually wrote the candidates names were considered marked ballots by some BEIs, pursuant to the OEC. But the machines counted the votes therein and ignored such writings, as long as they were not found inside the ovals.

I could cite several other examples of why the manual count was not reflective of the machine count. Inspite of the ponencias plain admission that the OEC Rules on the appreciation of ballots only apply to elections where the names of the candidates are handwritten in the ballots, the stark fact is that such Rules were actually (and erroneously) used here.

Indeed, the use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the ballots. Such misappreciation, in turn, led to a substantial difference in the election results, as yielded by the manual and the automated counts. In sum, the manual count was not reflective of the automated count.

^{This Courts Ruling Sets Back Election Modernization}

It must be borne in mind that, verily, the consistency and the accuracy of the machine count were the underlying factors in adopting the automated system of election. Precisely, human error, inconsistency and fraud were intended to be eliminated in the automated system. In fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a manual count under the facts of this case was antithetical to the rationale and intent behind RA 8436. The very purpose of the law was defeated by the cumbersome, inaccurate and error-prone manual system of counting automated votes.

Indeed, to uphold the results of the manual count would set a dangerous precedent. It would be tantamount to validating the arbitrary and illegal acts of the Comelec. It would provide the candidates a degenerated means to delay the proclamation of winners. It would effectively nullify the purpose of delivering speedy and accurate election results and thus defeat the election modernization ordained by Congress. Definitely, it would critically set back efforts at eliminating electoral fraud. To paraphrase then Vice President, now President, Joseph E. Estrada, the automated election system, which was prescribed as the cure for electoral fraud, may, in the imprudent hands of an indiscreet poll body, be truly worse than the disease.

^{5. Lack of Due Process in Issuance of Assailed Comelec Resolutions}

The ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and Intervenor Jikiri "were given every opportunity to oppose the manual count of the local ballots in Sulu." Hence, contrary to their allegations, they were not denied due process.

Again, I beg to disagree. Some factual antecedents have to be brought up to set the record straight.

The meeting among the candidates and other parties concerned, which Atty. Tolentino convened in the early afternoon of May 12, 1998, was already post facto. The talking points in that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did not discuss the issue of whether to stop the tallying because much earlier in the morning of that same day, Atty. Tolentino had already suspended the counting in that municipality and, shortly thereafter, in the entire province. Furthermore, the group that convened did not yet take up the alleged rejection by the machines of ballots in other municipalities, since the reports thereon came only after the said meeting. And such stoppage, as I discussed earlier, was based merely on the verbal complaints of some watchers and members of the BEI and Atty. Tolentino's personal, albeit unauthorized, examination of three ballots from one precinct, which showed that votes for a certain mayoralty candidate were not reflected in the election return.

Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his petition¹⁸ directly to the Comelec, requesting the immediate suspension of the automated count and the holding of a manual count in the entire Province of Sulu. In response, the Comelec en banc forthwith issued on the very same day -- May 12, 1998 -- assailed Minute Resolution 98-1747,¹⁹ granting the petition insofar as the votes in the Municipality of Pata were concerned.

The assailed Resolution was issued even before the report-recommendation of Atty. Tolentino was submitted to the Comelec en banc, close to midnight of that day.²⁰ While the effectivity of Minute Resolution 98-1747 was expressly subject to notice to all parties concerned, its very issuance by the Comelec en banc was obviously (1) without notice to the other candidates, (2) without any hearing at all, and (3) without an independent investigation by the Comelec. It relied totally on the contents of the petition itself.

Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were definitely not communicated to nor required by the Commission en banc prior to its issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the problems in the Municipality of Pata only, for the alleged problems in the five other municipalities of Sulu were discovered after that meeting was adjourned already. Such meeting, therefore, did not serve as a sufficient basis for the Comelec to abandon the automated count in the entire province; to transfer the counting venue from Sulu to Manila; and to totally shift to the manual count. In making these decisions and issuing the resolutions therefor, the Comelec clearly did not accord the parties due process. It did not give them any opportunity to be heard prior the promulgation of its rulings. The Comelec simply acted on its own.

^Epilogue

^{Special Election as the Equitable Remedy}

The assailed Comelec Resolutions have heretofore been shown to be tainted with grave abuse of discretion; hence, the manual count has no legal leg to stand on. Consequently, its results cannot be upheld. That which proceeds from a void order is likewise void. The invalidity of the manual count resulted in no count at all. Equally important, the manual count was not reflective of the results of an automated count because the ballots were not appreciated in the manner the scanning machine would have counted them.

During the Oral Argument, the parties, as well as the solicitor general, agreed that an automated count was no longer possible because, after the ballots had been manually handled (and blemished or rumpled in the process), the scanning machines could not accurately read all of them anymore.²¹ While the great majority of the ballots could still be counted by the machines, there were those that could no longer be electronically processed -- ballots that were torn, dirty or sticky; and the damp ones that the machine found difficult to disengage.

The ultimate effect of the invalidity of the manual count and the futility of an automated count at this time is the annulment or junking of the votes of the people of Sulu in the last elections. The will of the electorate, expressed through the ballots, has been frustrated or virtually canceled by the unauthorized acts of the Comelec. There is then no basis for the proclamation of Private Respondent Tan as the duly elected governor of Sulu.

It must be pointed out, however, that the nullity of Tans proclamation is not equivalent to a judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing that the voting process itself was tainted with undue irregularity. It was the counting process, rather, that was shrouded with uncertainty. The manual count, I repeat, was not the prescribed or even the appropriate method of validating the ballots intended to be electronically verified.

Time and again, the Court has held that the sovereign will must prevail over legal technicalities.²² But when the popular will itself is placed in serious doubt due to the irregularity of the very method used in determining it, we must allow the people involved another chance to express their true choice. We simply cannot impose upon the people of Sulu one who was not their clear choice, or whose election was, at the very least, placed in serious doubt by the spuriousness of the method used in counting the votes.

The consequent loss of a legal and appropriate means to ascertain the genuine will of the voters during the last election in Sulu necessitates the holding of a special election. I believe that this is the only equitable remedy left under the circumstances, if we are to give true justice to the people of Sulu and let their sovereign will prevail.²³ Such special election will, however, concern only the position of governor of the Province of Sulu. Only this position was contested in the instant petition; only the candidates therefor have timely sought relief from this Court to assail the manual count and the subject Minute Resolutions of the Comelec. The same relief cannot be granted to the candidates for the other positions who, insofar as they are concerned, are deemed to have accepted the results of the manual count as truly reflective of the will of the people of Sulu. Their failure to object in due time to the process, as well as the results, manifests their conformity and acceptance. They are now estopped from questioning the validity of the assumption into office of the duly proclaimed winners of the other positions in the province, whose rights cannot be adversely affected in these proceedings without them being haled to and accorded their day in court.²⁴ Even this Court has admitted the wisdom of this caveat as it denied the late intervention of Vice Gubernatorial Candidate Abdulwahid Sahidulla.

^{The Need for Legislative Action}

The foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated system that were unrelated to the counting machines or components thereof; thus, the lacuna of the proper recourse in such event. No remedies were expressly prescribed (1) for candidates who believe there was a wrong count or canvass by the machine, or more relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and if so, under what circumstances.²⁵

Well-settled is the rule, that courts have no jurisdiction to make legislative pronouncements.²⁶ They have no power to fill a vacuum in the law. Thus, the Court, I submit, should not give its imprimatur to the Comelecs resort to the manual method of determining election results, where Congress has categorically prescribed the automated system. Only Congress, the legislative arm of the government, can prescribe a precise remedy that will address the flaws identified in this case. For the courts or the Comelec to do so (like a resort to manual count) would be tantamount to judicial or administrative legislation, a course diametrical to the constitutional principle of separation of powers.

WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-1747, 98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually determined election results for the position of governor of Sulu and the proclamation of Respondent Abdusakur Tan as the elected governor of said province must thus be SET ASIDE and the Comelec ORDERED to call a special election for such position as soon as practicable.

Endnotes:

---

¹ 6, RA 8436.

² Cortez v. Comelec, 79 Phil 350 (1947); Lawsin v. Escalona, 11 SCRA 643 (1964).

³ I Transcript 49-50.

⁴ 7, No. 7.

⁵ According to Atty. Tolentino, there were about 200 ballots contained in a ballot box (II Transcript 46). The 27 ballot boxes for the 27 precincts of Pata, Sulu would thus yield about 5,400 ballots or votes.

⁶ Sanchez v. Comelec, 193 SCRA 320, January 24, 1991; Loong v. Comelec, 257 SCRA 1, May 16, 1996; Villanueva v. Court of Appeals, 259 SCRA 14, July 15, 1996; Garay v. Comelec, 261 SCRA 222, August 26, 1996; Jagunap v. Comelec, 104 Phil 204, April 24, 1981; Sarmiento v. Comelec, 212 SCRA 313, August 6, 1992; PNCC v. NLRC, 217 SCRA 455, January 22, 1993; Philippine Air Lines, Inc. v. NLRC, 225 SCRA 259, August 10, 1993; Philippine Air Lines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994; Allado v. Diokno, 232 SCRA 192, May 5, 1994; Labor v. NLRC, 248 SCRA 183, September 14, 1995; San Miguel Corp. v. NLRC, 209 SCRA 494, June 2, 1992.

⁷ Annex 3 to the Memorandum of Private Respondent Tan; Rollo, pp. 256 et seq.

⁸ Rollo, pp. 30-32.

⁹ Emphasis supplied.

¹⁰ See Sec. 7, RA 8436.

¹¹ Regalado E. Maambong, New Technologies of Modernization in Electoral Administration: The Philippine Experience, Symposium on Asian Elections in the 21st Century: A Report, January 1997, p. 30.

¹² Sec. 211. Rules for the appreciation of ballots. -- In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will:

1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office.

2. Where only the first name of a candidate is written on the ballot, which when read, has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent.

3. In case the candidate is a woman who uses her maiden or married surname or both and there is another candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent.

4. When two or more words are written on the same line on the ballot, all of which are the surnames of two or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least one year in which case it shall be counted in favor of the latter.

When two or more words are written on different lines on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorize the election of more than one and there are the same number of such surnames written as there are candidates with that surnames, the vote shall be counted in favor of all the candidates bearing the surname.

5. When on the ballots is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter.

6. When two words are written on the ballot, one of which is the first name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either.

7. A name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor.

8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it is used as a means to identify the voter, in which case, the whole ballot shall be void.

If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency.

9. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter.

10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of the surname accompanying the correct first name of a candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter.

11. The fact that there exists another person who is not a candidate with the first name or surname of a candidate shall not prevent the adjudication of the vote of the latter.

12. Ballots which contain prefixes as Sr., Mr., Datu, Don, Ginoo, Hon., Gob. or suffixes like Hijo, Jr., Segundo are valid.

13. The use of the nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname.

14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot.

15. If on the ballot is correctly written the first name of a candidate but with a different surname, or the surname of the candidate is correctly written but with different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates.

16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid.

17. Where there are two or more candidates voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein.

18. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered.

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

20. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process are totally null and void.

21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot.

22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate, or in other parts of the ballot, traces of the letter T, J, and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot.

23. Any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is totally null and void.

24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but it shall not invalidate the ballot.

25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read them, the board of election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly.

26. The accidental tearing or perforation of a ballot does not annul it.

27. Failure to remove the detachable coupon from a ballot does not annul such ballot.

¹³ With the help of Comelec personnel, the counting machines were used only for clean or smudge-free ballots, which were fed into the machines to assure the integrity of the machine count.

¹⁴ During this process, Comelec personnel led by Atty. Jose Tolentino Jr. actually ran the automated ballots through the scanning machines, thus showing a sampling comparison between the manual results and the machine-generated totals.

¹⁵ 211, No. 16.

¹⁶ Part II, No. 8, of the Comelec Procedure for Manual Counting, dated May 23, 1998.

¹⁷ See 211, No. 9.

¹⁸ Annex 1 to Comment; Rollo, pp. 121-123.

¹⁹ Rollo, pp. 25-26.

²⁰ II Transcript 13-14.

²¹ The caveat must be stated here, however, that during the sampling demonstration made by Comelec, which showed discrepancies in the automated and manual counts, most of the ballots could still be read by the machines. Only one or two ballots per precinct were spoiled or blemished to the point of being non-readable by the machine.

²² Frivaldo v. Comelec, 257 SCRA 727, 771, June 28, 1996; Benito v. Comelec, 235 SCRA 436, 442, August 17, 1994, citing several cases.

²³ The ponencia rules out this remedy, arguing that a special election was not prayed for by the parties and, at any rate, can be authorized only in accordance with Sections 4, 5, 6 and 7 of the OEC. I stress however that, under the circumstances, a special election is the EQUITABLE remedy because to uphold the manual count, as the majority did, merely gave imprimatur to arbitrary acts of the Comelec and validated the inaccurate and unauthorized manual count.

²⁴ Tan v. Barrios, 190 SCRA 686, 698-699, October 18, 1990; citing Icasiano v. Tan, 84 Phil 860 (1949); Busacay v. Buenaventura, 93 Phil 786 (1953).

²⁵ Earlier, I opined that, by analogy, the parties could avail of pre-proclamation contests or election protests. However, such analogy cannot be extended to manual elections because no law provides for such remedy.

²⁶ Santiago v. Guingona Jr., GR No. 134577, November 18, 1998; Javellana v. Executive Secretary, 50 SCRA 30, 84, March 31, 1973.