see - sc.judiciary.gov.ph/jurisprudence/2013/march2013/203302.pdf
"x x x.
Evidentiary Value of the Digital Ballot Images
Maliksi assailed the use by the COMELEC First Division of the ballot
images in the CF cards. He alleged that the best and most conclusive
evidence are the physical ballots themselves, and when they cannot be
produced or when they are not available, the election returns would be the
best evidence of the votes cast.
We do not agree. We have already ruled that the ballot images in the
CF cards, as well as the printouts of such images, are the functional
equivalent of the official physical ballots filled up by the voters, and may be
used in an election protest.
In the recent consolidated cases of Vinzons-Chato v. House of
Representatives Electoral Tribunal and Panotes and Panotes v. House of
Representatives Electoral Tribunal and Vinzons-Chato, 33 the Court ruled
that “the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise ‘official ballots’ that faithfully capture in electronic
form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369.”34 The Court declared that the printouts of the ballot images in the CF cards “are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an
electoral protest.” In short, both the ballot images in the CF cards and the
printouts of such images have the same evidentiary value as the official
physical ballots filled up by the voters.
In Vinzons-Chato and Panotes, the Court explained in length:
Section 2 (3) of R.A. No. 9369 defines “official ballot” where AES is utilized as the “paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter
recorded or to be recorded in electronic form.”
An automated election system, or AES, is a system using appropriate
technology which has been demonstrated in the voting, counting,
consolidating, canvassing, and transmission of election result, and other
electoral process. There are two types of AES identified under R.A. No. 9369:
(1) paper-based election system; and (2) direct recording electronic system. A paper-based election system, such as the one adopted during the May 10,
2010 elections, is the type of AES that “use paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count. On the other hand, direct recording electronic election system “uses electronic ballots, records, votes by means of a ballot display provided with mechanical or electro-optical component that can be activated by the voter, processes data by means of computer programs, record voting data and ballot images, and transmits voting results electronically.
As earlier stated, the May 10, 2010 elections used a paper-based
technology that allowed voters to fill out an official paper ballot by shading
the oval opposite the names of their chosen candidates. Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan (PCOS) machine which scanned both sides of the ballots simultaneously, meaning, in just one pass. As established during the required demo tests, the system captured the images of the ballots in encrypted format which, when decrypted for verification, were found to be digitized representations of the ballots cast.
We agree, therefore, with both the HRET and Panotes that the picture
images of the ballots, as scanned and recorded by the PCOS, are likewise
“official ballots” that faithfully captures (sic) in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the
printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest.
It bears stressing that the digital images of the ballots captured by the
PCOS machine are stored in an encrypted format in the CF cards. “Encryption is the process of encoding messages (or information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the use of an encryption key, which specifies how the message is to be encoded. Any adversary that can see the ciphertext, should not be able to determine anything about the original message. An authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually requires a secret decryption key, that adversaries do not have access to.”35 (Citations omitted)
Hence, the COMELEC First Division did not gravely abuse its discretion in using the ballot images in the CF cards. Maliksi further alleged that the ballot images in the CF cards should merely be considered as secondary evidence and should be resorted to only when the physical ballots are not available or could not be produced.
Maliksi is mistaken.
Rule 4 of A.M. No. 01-7-01-SC36 is clear on this issue. It states:
SECTION 1. Original of an Electronic Document. - An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.
SECTION 2. Copies as equivalent of the originals. - When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. (Emphasis supplied)
The ballot images, which are digital, are electronically generated and
written in the CF cards when the ballots are fed into the PCOS machine.
The ballot images are the counterparts produced by electronic recording
which accurately reproduce the original, and thus are the equivalent of the
original. As pointed out by the COMELEC, “[t]he digital images of the
physical ballots are electronically and instantaneously generated by the
PCOS machines once the physical ballots are fed into and read by the
machines.”37 Hence, the ballot images are not secondary evidence. The
official physical ballots and the ballot images in the CF cards are both
original documents. The ballot images in the CF cards have the same
evidentiary weight as the official physical ballots.
The Court notes that Maliksi did not raise any allegation that the use
of the ballot images falls under any of the exceptions under Section 2, Rule
4 of A.M. No. 01-7-01-SC that would make their use inadmissible as
original ballots.
x x x."
