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 isprima facieregular. 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). Pre-proclamation 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; and4. 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, Vice-President, 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 pre-proclamation 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, pre-proclamation controversy should be appreciated in the light of its purpose to ensure that the proclamation of winning candidates isprima facieregular. 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; ord. 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; and5. When the CCU used for Canvassing is not the one officially appropriated by COMELEC for canvassing.