eect OTHE PPE C6iHHISSIONON ELECTIONS EDUCATION ANO INFORMALION DEPARTMEN] 5 CEIVED ev pate: COMMISSION ON ELECTIONS Intramuros, Manila IN THE MATTER OF THE CONDUCT OF _ Bautista, J. Andres D., Chairman PUBLIC HEARINGS RE: MALL VOTING __ im, Christian Robert S., Commissioner PRO] Parrefio, Al A., Commissioner oe THE COMMISSION ON ia, tuie Tito F, Commissioner Lim, Arthur D., Commissioner Guanzon, Maria Rowena Amelia V., Commissioner Abas, Sheriff M., Commissioner Promulgated on: February 12, 2016 Resolution Nc WHEREAS, during the January 19, 2016 £n Banc meeting of the members of the Commission on Elections (Commission for brevity) the concept of Mall Voting proposed by no less than the Honorable Chairman J. Andres D. Bautista had been approved; WHEREAS, Section 154 of the Ommibus Election Code (OEC), provides for the modes for transfer of voting centers, one of which, is by way of a resolution of the Commission upon prior notice and hearing; WHEREAS, the Commission believes that the conduct of the voting at the pre- selected malls will enhance the voting experience of the voters in the forthcoming May 9, 2016 National, Local and ARMM Elections; WHEREAS, the conduct of public hearing/consultation with the affected voters shall be pursued to satisfy the notice requirement of law; and WHEREAS, in order to prepare for the Mall Voting, there is a need to finalize the number of voters, and clustered precincts to be transferred and the total number of Vote Counting Machines (VCMs), official ballots and other election materials, supplies and paraphernalia to be allocated to participating malls. NOW THEREFORE, pursuant to the powers vested in it by the 1987 Constitution, the Omnibus Election Code (OFC) and other related election laws, the Commission HEREBY RESOLVES to promulgate the following rules and regulations on the conduct of public hearing for purposes of Mall Voting:Sec. 1. Statement of Policy. The Commission hereby authorizes the conduct of voting in pre-selected malls nationwide for the May 9, 2016 National, Local and ARMM Elections and hereby designates the same as accessible polling places (APPs) in compliance with the mandate of Republic Act Nos. 7277 and 10366 and other related election laws; Provided, that a comprehensive review of the outcome of Mall Voting shall be undertaken after the May 9, 2016 elections to determine its feasibility and effectiveness for future/subsequent elections. Sec. 2. Acronyms and Definition of Terms. As used in this Resolution, the term: a. Persons with Disabilities (PWDs) refer to qualified voters, who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in the electoral processes on an equal basis with others. Senior Citizens (SCs) shall refer to qualified voters who are sixty (60) years or older. ‘Mall refer to 2 venue where a large number of people usually converge or congregate on a daily basis for shopping and leisure activities, as well as other personal and commercial purposes. Accessible polling place (APP) refers to the venue where the Board of Election Inspectors (BEIs) conducts election-related proceedings and where the voters cast their votes. The accessible polling place shall he located at the ground floor, preferably near the entrance of the building, and is free of any physical barriers and provided with necessary services, including assistive devices. Board of Election Inspectors (BEls) refers to the body which conducts the election in the polling place of the precinct usually composed of three (3) public school teachers appointed by the Commission. EDCVL refers to the Election Day Computerized Voters’ List PCVL refers to the Posted Computerized Voters’ List. Precinct refers to the basic unit of territory established by the Commission for the purpose of voting. For the purpose of this Resolution and in relation to Rep. Act. No. 10366, the term shall refer to both territorial-based and non-territorial-based established precincts. VCM refers to a vote counting machine that uses optical mark reader (OMR) technology. Sec. 3. Requirements for Designation of Malls as APPs — In compliance with the requirements of Rep. Act Nos. 7277 and 10366, the OEC and other related election laws, only malls that comply with the following requirements shall be designated as 'APPs for purposes of this Resolution:a. Compliant with Sec. 155 of the OEC, which partly states that, to wit “No polling place shall be located in a public or private building owned, leased, or occupied by any candidate or of any person who is related to any candidate within the fourth civil degree of consanguinity or affinity, or any officer of the government or leader of any political party, group or faction. Xxxx” b. Can readily provide the following spaces/areas: 1. An area of 63 square meters per clustered precinct, preferably a room, activity center or any open space/area along corridors, provided that adequate safeguards, such as, physical enclosures, dividers and upper part covers are installed to preserve the secrecy of the ballot and the sanctity of the electoral process. 2. A space/waiting area adjacent to the designated APPs in the mall, that can accommodate at least 50 chairs to be used by voters who are waiting for their turn to vote; 3. A dedicated entry for the BEls, voters, poll watchers, authorized representatives of the Commission to the designated APPs in the mall, without prejudice of allowing them entrance in other entry points of the mall during mall hours; 4, A designated area for security personnel from the PNP/AFP subject to rules and regulations; 5. A well-lighted storage room/area where the VCMs will be stored after the Final Testing and Sealing (FTS), until election day and where watchers and security personnel will be allowed to watch over the same 24/7; c. Allows the Commission to exercise full control and supervision over the areas within the mall, which have been designated as APPs, including security personnel assigned therein, a day before, during the elections and until all related activities have been completed; and d. Executes a Memorandum of Agreement (MOA) with the Commission for the implementation of this Resolution. Sec. 4. Authority to Conduct Public Hearing. In order to ascertain the sentiments of the affected voters, candidates, political parties, accredited citizens’ arms and other stakeholders and in compliance with the requirements of the OEC and other related election laws, all concerned Election Officers (EOs), who have jurisdictions over all barangays from where the clustered precincts to be transferred to pre-selected malls belong, are hereby authorized to conduct public hearings relative to Mall Voting provided in this Resolution. For this purpose, the Election and Barangay Affairs Department (EBAD) shall prepare a list of all the participating malls, barangays, voting centers, clustered precincts and the number of voters who will be affected by the proposed transfer.Sec. 5. Date, venue and notice of public hearing. The date and venue for the conduct of public hearings shall not be later than February 12, 2016. A summary of the date/s and venue/s of public hearings shall be furnished the Office of the Provincial Election Supervisors (OPESs), Office of the Regional Election Directors (OREDs) and the Flection and Barangay Affairs Department (EBAD); Only one (1) public hearing shall be conducted for every barangay with clustered precincts to be transferred to malls, which shall be conducted in the said barangays or in the malls where said precinct/s shall be transferred. ‘The notice providing the date and venue of the public hearing shall be sent to all affected voters, political parties, candidates, accredited citizens’ arms, mall owners/managers and other stakeholders, at least three (3) days before the actual hearing. Within the same period, such notice shall also be posted on the bulletin boards at the OEOs and in, at least, five (5) conspicuous places in the affected barangays. In case of absence or incapacity for any cause of the EO, the Commission, through the PES, shall designate an Acting EO to serve as hearing officer. In areas where the EO is a non- lawyer, the PES, upon the formers’ request, shall appoint a lawyer-EO from the areas not included in the Mall Voting or, if none is available, the RED shall designate a regional attorney to assist in the conduct of public hearing on the date so identified. Sec. 6. Nature of the public hearing. The public hearing shall be summary in nature. During, the hearing, all parties shall be given the opportunity to be heard. For the hearing to proceed, it is not necessary that the majority of the voters per clustered precinct shall attend the same, as long as, it can be established that notices thereof have been properly served and posted. Any opposition/objection raised during the hearing shall be recorded by the EO and include the same in her/his report to EBAD. Sec. 7. Reporting and Monitoring. All reports on the result of the public hearings, including the oppositions/objections raised during the conduct thereof, shall be submitted to EBAD for consolidation. The final list of clustered precincts that will be transferred to malls based on the reports of the EOs shall be submitted by the EBAD not later than February 18, 2016 for consideration of the Commission En Banc. ‘The PES shall have the duty to monitor and ensure that public hearing/s set by the EOs are conducted as scheduled. Sec. 8. Final Notice to Voters. After approval by the Commission En Banc of the final list of the clustered precincts, the EOs shall issue final notices to the affected voters, informing them that their polling places have been transferred to the pre- selected malls, in connection with the May 9, 2016 National, Local and ARMM Elections. A copy of such notice shall be sent to political parties, candidates, accredited citizens’ arms and other stakeholders. The EOs shall also be required to post the notice on the bulletin boards at their respective offices, in the barangay halls of the affected barangays and in, at least five (5) conspicuous places in said barangays.Reso 10059 In order to avoid confusion among the voters, the EOs shall exert effort in widely disseminating the names of the voters and clustered precincts to be transferred to malls within their respective jurisdictions. Sec. 9. Budgetary and Logistical Requirements. The EOs shall be provided mobilization fund, in such amount as may be determined by the Finance and Services Department (FSD) subject to accounting and auditing rules. Such amount shall be used for the purchase of tarpaulins (as backdrop signages), rental of sound systems, tables and chairs, transportation, provisions for food and other incidental expenses relative to the conduct of public hearing. ‘The logistical requirement for the preparation and printing of notices ic., continuous forms, inks/toners/ribbons, envelopes, pastes, and ballpens, shall be provided by the Commission, through the Administrative Services Department (ASD). Sec. 10. Posting, Publication and Dissemination, The Education and Information Department (EID) shall cause the posting of this Resolution in the official website of the Commission, its publication in two (2) daily newspaper of general circulation in the Philippines and by any means to give this Resolution widest dissemination. Let the Election and Barangay Affairs Department, Finance Services Department and Administrative Services Department implement this Resolution. SO ORDERED. d A 2 Kenton oe 8. LIM 5 = — Commissioner Commissioner . GUIA ARTHUR D. LIM Commissioner wae wi Ae SC byt Ce Gl fet torte ett Bhs ope te ret MA. ROWENKANIELA V. GUANZO) . M. ABAS ‘Commissioner Commissioner See Pow T Sp Banc PieREPUBLIC OF THE PHILIPPINES COMMISSION ON ELECTION Intramuros, Manila COMMISSION ON ELEC Tiuny ‘FICE QF THE COMELEC SECRETA: FOR i THE EN BANC RECEIVED BY: THRU : CHAIR J. ANDRES D. BAUTISTA 5475. at TIME:_Qsva SUBJECT: MY VOTES FOR EN BANC MEETING ON 19 JANUARY 2016 DATE : 19 JANUARY 2016 Please enter my votes on the following: AGENDA. VOTE 1. GAD Plan 2017 T move to APPROVE and VOTE TO APPROVE. This is required by Philippine COMMISSION ON ELECTIONS | Commission on Women and DBM on SEFCEOF Commie TIO Gul | january 30. JAN} 9 2016 Tvote/move to defer this matter until the next regular En Banc or Special En Banc meeting. Please enter‘ my Comment; Tattended the last public consultation on mall voting and heard the PWDs and the Disabilities Affairs Council officers say that mall voting should be optional; some of them said they were not in favor. Treiterate my position that transferring voting precincts to malls is contrary to law. Is the proposal of the Chair. I move to DEFER this matter; it is unconstitutional. ‘ON ELECTIONS: Commissioner OFFICE OF COMM, ARTHUR D. LIMREPUBLIC OF THE PHILIPPINES COMMISSION ON ELECTIONS Be ae mila MISSION ON ELECTIONS SEP” Office of Commissioner Ma. Rawen Ceneligg U GUM EB r.ci cr cecRETARS MEMORANDUM RETEIVE NiLms BIS TAME FOR THE COMMISSION EN Banc ATI Chair J. Andres D. Bautista Commissioner Christian Robert S. Lim. Commissioner Al A. Parreiio Commissioner Arthur D. Lim Commissioner Luie Tito F. Guia Commissioner Sheriff M. Abas Savy THROUGH ATTY. CONSUELO B. DIOLA. Acting COMELEC Secretary SUBJECT Memorandum of Law: Mall voting is contrary to law DATE é 24 November 2015 In deciding whether the Commission on Elections should allow the use of shopping malls as polling places for the 2016 National and Local Elections, the Commission En Banc must be guided by the following provisions of the Batas Pambansa Bilang 881, otherwise known as the Omnibus Election Code (“BP 881”) Sec. 154, Requirements for polling places. - Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors. The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing. A. public building having the requirements prescribed in the preceding paragraph shall be preferred as polling place. Sec, 155. Building that shall not be used as polling places. - No polling place shall be located in a public or private building owned, leased, or occupied by any candidate or of any person who is related to any candidate within the fourth civil degree of consanguinity or affinity, or any officer of the government or leader of any political Page 1 of 5 @party, group or faction, nor in any building or surrounding premises under the actual control of a private entity, political party or religious organization. In places where no suitable public building is available, private school buildings may be used as polling places. No polling place shall be located within the perimeter of or inside a military or police camp or reservation or within a prison compound. Any registered voter, candidate or political party may petition the Commission not later than thirty days before the first registration day for the transfer of the polling place from the prohibited buildings provided herein, Such petition shall be heard and decided by the Commission within twenty days from the filing of the petition. Failure to effect the transfer of the polling place after the Commission found it to be located in violation of this section within the period prescribed herein shall be a ground for the postponement of the election in the polling place concerned. ‘The above Sections 154 and 155 of BP 881 clearly and plainly describe what a polling place should be and what it should not be. It cannot be in a “building or surrounding premises under the actual control of a private entity.” The only exception is “where no suitable public building is available, private school buildings may be used as polling places.” Requirements for polling places Section 154 dictates that a polling place should have the following characteristic 1) as far as practicable, a ground floor; 2) shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors; and 3) shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. In addition, Section 154 clearly states that “[a] public building having the requirements prescribed in the preceding paragraph shall be preferred as polling place.” Page 2 of 5 @ion on buildings to be used as polling places In Section 155, we see an enumeration of buildings which shall NOT be used as polling places. The following are prohibited locations under Section 155: 1) public or private building owned, leased, or occupied by any candidate; 2) public or private building owned, leased, or occupied by any person who is related to any candidate within the fourth civil degree of consanguinity ot affinity; 3) public or private building owned, leased, or occupied by any officer of the government; 4) public or private building owned, leased, or occupied by any leader of any political party, group ot faction; 5) any building or surrounding premises under the actual control of a private entity; 6) _ any building or surrounding premises under the actual control of a political party; 7) any building or surrounding premises under the actual control ofa religious organization; 8) located within the perimeter of or inside a military or police camp or reservation or within a prison compound From the foregoing, it is clear that designating shopping malls as polling places for the 2016 National and Local Elections is contrary to or violates BP 881: + First. Shopping malls are private buildings, and may not be allowed to be used as polling places. The law gives preference to public buildings which are compliant with the requirements prescribed in Section 154. Necessarily, polling places cannot be transferred to a private building so long as there are public buildings which meet the requirements of the law. Furthermore, the only exception are private school buildings. Also, there is a danger that the shopping malls may be private buildings owned, leased, or occupied by any candidate, any person who is related to any candidate within the fourth civil degree of consanguinity or affinity, any officer of the government, or any leader of any political party, group or faction. Page 3 of 5Second. Even assuming that shopping malls where the polling places will be transferred are private buildings which are not owned, leased, or occupied by any candidate, any person who is related to any candidate within the fourth civil degree of consanguinity or affinity, any officer of the government, or any leader of any political party, group or faction, the same would still be prohibited as a polling place because it is a building under the actual control of a private entity. Tt must be noted that the term “private entity” under this part of Section 155 is unqualified. As long the entity is private, even though it is not a candidate or related to the same, or any officer of government, or a political group, the prohibition applies. Section 155 is clear: no building under the actual control of a private entity shall be used as a polling place; otherwise stated, no polling place shall be located in a building under the actual control of a private entity. Mall owners, who are private entities or individuals, have actual control over these shopping malls. It is also possible that some of the owners or stockholders of the corporations that own the malls are foreigners, The ingress to and egress from these buildings are under the control of the mall management. The rules of the shopping mall are enforced by these mall owners. The security force operating within the mall is under the administration of the mall owners. It is beyond contest that the actual control of the building belongs to a private entity. Thus, the prohibition under the law applies. Third. Further, assuming that the mall owners will cede to the Commission on Elections the actual control of the areas to be used as polling places, it still cannot be said that the building is no longer under the actual control of a private entity. By the very nature of a shopping mall, mall lessees, including retailers with shops on every floor of the shopping mall, still exercise actual control over their stalls or rented shop spaces. Actual control of these areas will never be ceded over to the Commission considering that, in all probability, these shops will be open on Election Day, in an attempt to benefit from the sale of goods to the voting public. Even assuming that these areas are closed on Election Day, these areas will never be turned over by the shop owners to the Commission on Elections, considering that their merchandise or the inventory they use for their services are located inside, In this regard, majority of the areas of the mall shall continue to be under the actual control of different private entities. Thus, even when the mall management gives the Commission on Election control over the spaces where the polling places will be established, the spaces leased by private entities (the lessees, retailers, among others) shall remain in the latter’s control and use. Certainly, in the same vein, areas of the mall which are not leased to retailers or third parties, as well as areas not designated as polling places, will remain under the direct control of the mall owner or his administrator Page 4 of 5Therefore, in that instance one cannot say that the entire building in which the polling place is located is not under the actual control of the private entity. Further, it must be noted that Section 155 does not only talk about prohibiting the use of a building actually controlled by a private entity. Section 155 also prohibits locating a polling place in a building or area where the surrounding premises are under the actual control of a private entity. Following from the foregoing discussion on mall lessees, if the Commission on Elections establishes a polling place inside a shopping mall, the surrounding areas of such polling place will definitely be under the actual control of private entities. Fourth. The only exception provided under BP 881 is found in Section 155. ‘The provision states that “[iln places where no suitable public building is available, private school buildings may be used as polling places.” In conclusion, establishing polling places inside shopping malls violates BP 881, and exposes the Commission on Elections to legal repercussions which may derail the conduct of the elections. Further, if the 2016 National and Local Elections become closely contested, votes cast within shopping malls might be questioned and struck out due to the legal infirmities of establishing polling places therein. Even beyond the apparent illegality of this action, the practical disadvantages of establishing polling places inside shopping malls far outweigh any advantage it can hope to bring. ‘The requirements and prohibitions are clear under BP 881, As stated in ‘Amores v. HRET, “[a] cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application.” WHEREFORE, I am hereby casting my vote against establishing polling places in malls and urge my fellow Commissioners to abide by the law and do the same. [Lente fii — MA. ROWENA AMELIA V. GUANZON Commissioner CC: Atty. Jose M. Tolentino, Jr, Executive Director ‘Atty. Helen G. Aguila-Flores, DEDA ‘Atty, Bartolome J. Sinocruz, Jr, DEDO ay «M. Calew ane, Law Rape: , GR No. 189600 19 june 2010. Page 5 of § wf