Can voters be jailed for taking voting receipts out of precincts?

The answer lies in whether the voting receipts should be classified as election document or election paraphernalia under the law. ‘It should not be.’

On April 12, 2016, the Commission on Elections (Comelec) promulgated Resolution Number 10088, amending the “General Instructions for the Board of Election Inspectors (BEI).” This was in view of the Supreme Court’s ruling in Bagumbayan and Gordon vs. COMELEC (GR Number 222731) that required the poll body to activate the voter receipt feature of the vote-counting machines (VCMs).

Section 2 of the resolution administratively prohibits the bringing of voter’s receipts outside of polling precincts. Section 13 makes that breach an election offense. It provides that “any person who takes away the voters’ receipt commits an election offense punishable under Section 261 (z) (12) of the Omnibus Election Code.”

This was merely lifted from the “Notice”signed by the Supreme Court’s Clerk of Court, Felipa Anama, denying with finality Comelec’s motion for reconsideration of its voter’s receipt ruling.

In the same notice, Anama responded to Chairman Andres Bautista’s statement raising his concern regarding the lack of mechanisms to prosecute individuals who take the voters’ receipts outside the precinct. The notice pointed Comelec to Section 261 (z) (12) of the Omnibus Election Code, which provides:

“(12) Any person who, without legal authority, destroys, substitutes or takes away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election.”

Going back to Resolution Number 10088: Section 13 treats a voting receipt as an “official election document or election paraphernalia.” It therefore puts it under the operation of Section 261 (z) (12), according to both the Comelec and the Clerk of Court.

The problem with the above interpretation is that it reads into Section 261 of the Omnibus Election Code (approved on December 3, 1985) the concept of “voting receipt.” The concept of voting receipt arguably did not exist until 2007 with the passage of Republic Act 9369, and confirmed to be mandatory only about a month ago with the Bagumbayan case.

This is obviously contrary to that long-entrenched “originalist” approach in interpreting criminal statutes in the country, where they are strictly interpreted according to their original meaning or the original intention of the law’s authors. Obviously back in 1985, members of Congress could not have intended to include something which had yet to exist or at least thought about.

This view is likewise sanctioned by that elementary principle in statutory construction that doubts in criminal statutes should be resolved in favor of the accused or of innocence. This means that in the question of whether a voting receipt should be classified as election document or paraphernalia under Section 261 (z) (12), the obvious answer is, it should not be.

Also, Resolution Number 10088, being in the nature of implementing rules and regulations (IRR), is not supposed to expand the scope of Section 261 (z) (12) to include voting receipts. That would be tantamount to amending the Omnibus Election Code, with the Comelec arrogating unto itself the power exclusively reserved to Congress.

In Lokin vs COMELEC (GR Number 179431-32 & 180443), the poll body was already warned that it has “neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement,” and that the IRRs it issues “should always accord with the law to be implemented, and should not override, supplant, or modify the law.” Comelec’s Resolution Number 10088 does all of this: expand, extend, modify, and add something to Section 261 (z) (12).

The proscription should even be made stronger in this case. Comelec effectively criminalizes an act, which, technically speaking, is still legal. It attaches a penalty of 1 to 6 years imprisonment to it. It made criminal something which is not.

The Clerk of Court’s “Notice” should have also been taken with a grain of salt. The Clerk’s discussion of voting receipts in relation to Section 261, even if speaking for the Supreme Court en banc, is at best an obiter dictum and, thus, does not set a precedent or a binding interpretation.

Obviously it was not the issue under consideration in Bagumbayan, but Comelec’s compliance with the “minimum systems capability” prescribed by Republic Act Number 9369. To my mind, such pronouncement would even amount to judicial legislation, or that case where the Supreme Court, in the guise of the exercise of judicial power, venture into the realm of law making.

It is possible that the Comelec knows these limits, and this is just its way of deterring people from sneaking out the voting receipts – by bluffing voters that they can be prosecuted. However, the elections body only opens itself to public disappointment when it later shows that it won’t prosecute violators simply because it cannot.

This issue highlights that huge problem in our election laws, where parts have been amended but without actually adjusting the other parts affected by it.

For example, Republic Act 9369 automates the voting, counting, and canvassing system, but without actually amending the voting, counting, and canvassing procedures in the Omnibus Election Code, including the election offenses attached to it.

This mismatch not only confuses the public and even lawyers, but implementing them require so much interpretation. In turn, it increases their susceptibility to mistakes, inaccuracies, and subjective interpretations. While there are many pending bills that attempt to remedy this mismatch, most, if not all, are still stuck at the committee level in both houses of Congress. – Marañon III (Emil Marañon III is an election lawyer who served as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.)


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