Brillantes vs Comelec

G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner,
JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN,
FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ,
ISLETA, AND JOSE A. BERNAS, Petitioners-in-Intervention, vs. COMMISSION ON ELECTIONS,
respondent.

FACTS:
* On Dec 22, 1997, Congress enacted RA 8436, authorizing Comelec to use an automated
election system (AES) for the process of voting, counting of votes and canvassing/consolidating
results of of the national and local elections. The said law also mandated Comelec to acquire
automated counting machines (ACMs), computer equipment, etc to adopt new electoral forms
and printing materials.
* Comelec initially intended to implement automation during the May 1998 presidential
elections, particularly in ARMM. But its implementation was stopped due to the failure of
machines to correctly read some automated ballots.
* During the May 2001 elections, counting and canvassing were done manually.
* Oct 29, 2002, Comelec adopted (in Resolution 02-0170), a modernization program for the
2004 elections consisting of 3 phases:

Phase 1 computerized system of registration and voters validation / biometrics system of

registration
Phase 2 computerized voting and counting of votes; and
Phase 3 electronic transmission of results

* Comelec resolved to conduct biddings for the 3 different phases.

* Jan 24, 2003, PGMA issued EO 172 allocated 2.5B to fund the AES.
* Jan 28, 2003 Comelec issued invitation to bid for procurement of supplies, equipment,
materials, etc for the implementation of the 3 phases.
* Feb 2003 PGMA issued EO 175, authorizing release of supplemental 500M budget for AES.
* Apr 15, 2003 Comelec promulgated Resolution 6074, awarding the contract for Phase 2 to
Mega Pacific Consortium, and entered into a contract with Mega to implement the project.
* Comelec entered into a separated contract with PMSI (Phil Multi Media System Inc)
Electronic Transmission, Consolidation and Dissemination of Election Results Project
Contract. This contract pertains to Phase 3 of the AES. This was predicated by a previous bid
award of contract for the lease of 1900 units of satellite based very small aperture terminals.
Comelec bound and obliged itself to pay PMSI 298B as rentals for the leased equipment.

* ITFP (Information Technology Foundation of the Phils) filed a petition for certiorari and
prohibition for the nullification of Resolution 6074, approving the contract for Phase 2 of AES
to Mega Pacific (Info Tech v Comelec). While the case was pending, Comelec paid the contract
fee to the PMSI.

* Jan 13, 2004 Court nullified Comelec Resolution 6074, awarding the contract for Phase 2 of
AES to Mega Pacific. Also voided was subsequent contract entered by Comelec with Mega Pacific
for purchase of computerized voting machines. Phase 2 was therefore scrapped, based on
the said Decision of the Court. Comelec had to maintain old manual voting and counting system.

* Meanwhile, the validation scheme under Phase 1 of AES encountered problems in its
implementation. Comelec announced that it was reverting to old listing of voters. Despite
scrapping of Phase 2, Comelec nevertheless ventured to implement Phase 3 of AES
through an electronic transmission of advanced unofficial results of the 2004 elections for
national, provincial and municipal positions, aka unofficial quick count.
* Senate President Drilon had misgivings about the proposed electronic transmission of results
for President and VP. He wrote to Chairman Abalos and asked him to reconsider Comelecs plan
to include the votes of Pres and VP in the quick count. Under Sec 4 Art 7 of Consti: Congress has
sole and exclusive authority to canvass the votes for Pres and VP. Therefore, any quick
count to be conducted by Commission would be pre-emptive of the authority of Congress, but
would be lacking of any Constitutional authority.

* Aside from concerns of Drilon, Comelec had to contend with the problem of sourcing the
money for the implementation of the project since the money allocated by the Office of Pres for
AES had already been spent for the acquisition of the equipment. However, Comelec was
determined to carry out Phase 3. On Apr 6, 2004, Comelec conducted a field test of the
electronic transmission of election results.

* April 27, 2004, Comelec en banc met to resolve whether to proceed with Phase 3. During the
meeting, Commission Tuason requested his fellow Commissioners that whatever is said here
should be confined within the 4 walls of this room so as not to encounter problems. Some
commissioners expressed concern over the budget for the project. Other concerns were on the
legality of the project considering the scrapping of Phase 2, as well as operational constraints.

* Despite reservations of most of its members, Comelec (barely 2 weeks before the national and
local elections), approved the assailed Resolution 6712, Apr 28, 2004, declaring that it
adopts the policy that the precinct election results of each city and municipality shall be
immediately transmitted electronically in advance to the Comelec, Manila.
* For this purpose, Comelec then established NCC (National Consolidation Center), ETCs
(Electronic Transmission Centers) for every city and municipality, and a special ETC at the
Comelec Manila for Overseas Absentee Voting.

* Procedure for electronic transmission of precinct results:

1. NCC shall receive and consolidate all precinct results based on data transmitted to it by
each ETC
2. Each city and municipality shall have an ETC (where votes will be encoded, transmitted
to the NCC, through VSAT facilities. Personal computers shall be allocated for all cities
and municipalities at the rate of one set for every 175 precincts.
3. A DepEd supervisor shall be designated in the area who will be assigned in each polling
center for the purpose of gathering from all BEIs the envelopes containing Copy 3 of
Election Returns (national positions) and Copy 2 (local positions). Both will be intended
for Comelec, which shall be used as basis for encoding and transmission of advanced
precinct results.

* The assailed Resolution 6712 further provides: written notices of the date, time and place of
electronic transmission of advanced precinct results shall be given not later than May 5, 2004,
to candidates running for local positions, and not later than May 7, 2004 (candidates for
national positions), as well as to political parties, fielding candidates, parties, organizations,
party list, etc.

* Sec 13 of Resolution 6712 provides that the encoding proceedings were ministerial and
tabulations were advanced unofficial results.
Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of parties,
accredited political party, sectoral party/organization or coalition thereof under the party-list, through its
representative, and every candidate for national positions has the right to observe/witness the encoding and
electronic transmission of the ERs within the authorized perimeter.
Provided, that candidates for sangguniang panlalawigan, sangguniang panglungsod, or
sangguniang bayan, belonding to the same slate shall collectively be entitled to only one
common observer at the ETC.

The citizens arm of the Commission, and civic, religious, other similar organizations, shall be
entitled to 1 observer.

The observer shall have the right to observe, take note of and make observations on the
proceedings of the team. Observations shall be in writing, and, when submitted, shall be
attached to the Minutes.

Encoding proceedings, being ministerial in nature, and the tabulations being advanced unofficial
results, no objections or protests shall be allowed by ETC.

* No print outs shall be released at the ETC and NCC (in keeping with the unofficial character
of the results. Instead, consolidated and per-precinct results shall be made available via
Internet, text messaging and electronic billboards.

* When apprised of the said resolution, several groups detailed their concerns. Among these
groups include NAMFREL, LDP, NPC, Lakas CMD, and other political parties. Their concerns:
(1) Resolution disregards RA 8173, 8436, 7166 (which authorize only the citizens arm to
use an election return for an unofficial count). Election returns may only be used for canvassing
or for receiving dispute resolutions.
(2) Commissions copy (2nd or 3rd) has always been intended to be an archived copy and its
integrity preserved until required by the Commission to resolve election disputes. Only BEI is
authorized to have been in contact with the return before the Commission unseals it.
(3) The instruction in Resolution 6712 (to break the seal of envelope containing copy 2 and 3)
will introduce a break in the chain of custody prior to its opening by Comelec. The integrity of
Commissions copy is breached, thereby rendering it void of any probative value.

* Present petition: assails the validity of the questioned resolution

@Pet: there is no provision under RA 8436 which authorized Comelec to engage in the
biometrics / computerized system of validation of voters (Phase 2) and a system of electronic
transmission of election results (Phase 3). Even assuming that for the nonce that all 3 phases are
authorized, they must complement each other as they are not distinct and separate programs,
but mere stages of 1 scheme. Considering failed implementation of Phases 1 and 2, there is no
basis for Comelec to push through with Phase 3. Petitioner posits that the counting and
consolidation of votes contemplated in Sec 6 RA 8436 refers to the official Comelec count
under the fully automated system, and not any kind of unofficial count under the Resolution.

@Pet in intervention: point to several constitutional infractions occasioned by the assailed

resolution. They advance in the view that the assailed resolution preempts the sole and
exclusive authority of Congress under Art 7, Sec 4 of the Constitution to canvass the votes for
Pres and VP. Further, any expenditure contravenes Art 6, Sec 29 of the Constitution (there being
no appropriation by the Congress for the conduct of unofficial transmission of results).

* statutory grounds: petitioners contend that the Resolution encroaches upon the authority of
NAMFREL (as citizens accredited arm) to conduct the unofficial quick count under pertinent
election laws.
* It is also impugned for violating Sec 52 (i) of the Omnibus Election Code, relating to the
requirement of notice to the political parties and candidates of the adoption of technological and
electronic devices during the elections.
@Comelec:
1. assails the jurisdiction of the SC to pass upon the assailed resolutions validity, claiming
that it was promulgated in the exercise of Comelecs executive or administrative power.
2. The present controversy involves a political question, hence beyond the ambit of
judicial review.
3. Impugns the standing of petitioner to file the present petition, as he has not alleged any
injury which he would or may suffer as a result of the implementation of the resolution.

* As to merits: Comelec denies that the Resolution was promulgated pursuant to RA 8436, and
that it is the implementation of Phase 3. Rather, Comelec invokes the general grant to it of the
power to enforce and administer all laws relative to the conduct of elections and to promulgate
rules and regulations to ensure free, orderly and honest elections by the Constitution, Omnibus
Election Code, and RA 6646 and 7166.

* Comelec avers that granting arguendo that the Resolution is related to or connected with
Phase 3, no specific law is violated by its implementation. It posits that Phases 1, 2 and 3 are
mutually exclusive schemes, such that, even if the first 2 phases have been scrapped, the latter
phase may still proceed independently of and separately from the others.

* Comelec also claims that it had complied with Section 52 (i) of Omnibus Election Code, as the
political parties and all candidates of the 2004 elections were sufficiently notified of the
electronic transmission of advanced election results.

* Comelec says that these constitutional concerns are purely speculative. It maintains that
what is contemplated in the assailed Resolution is not a canvass of votes, but merely
consolidation and transmittal. As such, it cannot be made the basis for the proclamation of any
winning candidate. Since it is unofficial in nature, it cannot be considered as preempting or
usurping the power of Congress to canvass the votes of Pres and VP.

ISSUE:
1. W/N petitioner and petitioners-intervenors have standing to sue
2. (assuming they have standing to sue) W/N the issues raised are political in nature over
which the Court has no jurisdiction
3. (assuming issues are not political) W/N Resolution 6712 is void:
a. For preempting the sole and exclusive authority of Congress under Art 7, Sec 4 of the
Constitution to canvass votes for Pres and VP
b. For violating Art 6, Sec 29 (par 1) of the 1987 Consti that no money shall be paid
out of the treasury except in pursuance of an appropriation made by law
c. For disregarding RA 8173, 8436, and 7166, which authorize only the citizens arm to
use an election return for unofficial count
d. For violation of Sec 52 (i) of the Omnibus Election Code, requiring not less than 30
days notice of the use of new technological and electronic devices; and
e. For lack of constitutional or statutory basis; and
4. W/N the implementation of Resolution 6712 would cause trending, confusion and
chaos.

HELD:

1. Petitioners and Petitioners-intervenors have locus standi

Since implementation of the assailed Resolution involves expenditure of funds, the petitioners
as taxpayers, possess the requisite standing to question its validity, as they have sufficient
interest in preventing the illegal expenditure of money raised by taxation. Most of the
petitioner-intervenors are also representatives of major political parties that have participated
in the May 2004 elections. Concepcion and Bernas represent NAMFREL (citizens arm
authorized to conduct an unofficial quick count). They have sufficient, direct and personal
interest in the manner by which Comelec would conduct the elections.

2. Issue Raised by the Petition is Justiciable (not political question)

1987 Constitution expands concept of judicial review in Sec 1 Art 8:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

The issue raised in the petition does not merely concern the wisdom of the Resolution, but
focuses on its alleged disregard for applicable statutory and constitutional provisions. In other
words, that the petitioners are questioning the legality of Comelecs administrative issuance will
not preclude this Court from exercising its power of judicial review to determine W/N there was
Gaod on part of Comelec. In this petition, the Court must pass upon petitioners contention that
Resolution 6712 does not have adequate statutory or constitutional basis.

On issue of mootness (since May 2004 elections have come and gone): Court finds it necessary
to resolve the merits of the substantive issues for future guidance of both bench and bar.
Courts will decide a question otherwise moot and academic if it is capable of repetition, yet
evading review.

Comelec committed GaoD amounting to lack or excess of jurisdiction in issuing

Resolution 6712
An administrative body / tribunal acts without jurisdiction if it does not have the legal power to
determine the matter before it; excess of jurisdiction where respondent (clothed with power to
determine the matter) oversteps its authority determined by law. There is Gaod justifying the
issuance of the writ of certiorari when there is a capricious and whimsical exercise of his
judgment as is equivalent to lack of jurisdiction.

1. The assailed Resolution usurps, under the guise of unofficial tabulation of election
results based on copy of election returns, the sole and exclusive authority of Congress to
canvass the votes for the election of Pres and VP, under Art 7, Sec 4 of the Constitution.

Comelec even disregarded the objection of Senate president. The Resolution directly
infringes the authority of Congress, considering that Sec 4 thereof allows the use of the
3rd copy of the Election Returns to Comelec, ahead of the canvassing of Congress.

Even RA 8436 confirms the constitutional undertaking of Congress as the sole body
tasked to canvass the votes for President and VP.

The contention of Comelec that its tabulation of votes is not prohibited by the
Constitution and RA 8436 since it is unofficial is puerile and totally unacceptable. If
Comelec is proscribed from conducting an official canvass of votes for Pres and VP,
Comelec is with more reason, prohibited from making an unofficial canvass of the said
votes.
2. The assailed Resolution contravenes the constitutional provision that no money shall
be paid out of the treasury except in pursuance of an appropriation made by law.

Any disbursement of public funds to implement the project is contrary to the provisions
of the Constitution and RA 9206 (2003 General Appropriations Act). The use of funds for
the unofficial quick count may even be considered as felony under Art 217 of RPC.

After reviewing RA 9206, we find no appropriation for the project of Comelec for
electronic transmission of unofficial election results. What is appropriated is the
amount of 225B for the capital outlay for modernization of the electoral system.

Sec 52 of RA 9206 also proscribes any change or modification in the expenditure items.
xxx no change or modification shall be made in the expenditure items unless in cases of
augmentation from savings in appropriations xxx

Neither can the money needed for the project be taken from Comelecs savings, if any,
because it would be violative of Art 6, Sec 25 (5) of the 1987 Constitution.

3. The assailed Resolution disregards existing laws which authorize solely the duly-
accredited citizens arm to conduct the unofficial counting of votes. Under RA 7166,
and reiterated in RA 8436, the accredited citizens arm (NAMFREL) is exclusively
authorized to use a copy of the election returns for the unofficial counting of the votes.
No other entity, including Comelec itself, is authorized to use a copy of the election
returns for purposes of an unofficial count. Also, the 2nd or 3rd copy of the ERs are not
intended for an unofficial count, even if they are to be delivered to Comelec. They will be
archived and unsealed, only when needed by Comelec to verify election results.

In contravention of the law, the assailed Resolution authorizes Reception Officers to

open the 2nd or 3rd copy. This does not only violate the exclusive prerogative of
NAMFREL, but it also taints the integrity of the envelopes containing the election returns
by creating a gap in the chain of custody from BEI to Comelec.

4. Sec 52 (i) of the Omnibus Election Code, which is cited by Comelec as the basis for the
Resolution, does not cover the use of the latest technological and election devices for
unofficial tabulations of votes. Also, Comelec failed to notify the authorized
representatives of accredited political parties and candidates not less than 30 days prior
to the effectivity of the use of such devices.

Comelec may resort to and adopt the latest technological and electronic devices for
electoral purposes, it must act in accordance with the following conditions:
a. Take into account the situation in the area and funds available;
b. Notify authorized reps of political parties and candidates affected by the use of such
devices not less than 30 days prior to the effectivity of the use of such devices.

Again, the assailed Resolution was issued by Comelec despite apprehensions from most
of the Commissioners regarding legal, operational and financial impediments. Moreover,
Resolution 6712 was made effective immediately a day after its issuance. Comelec could
not have possibly complied with the 30-day notice requirement provided under Sec
52(i) of the Omnibus Election Code, which violates the right to due process of the
political parties and candidates.

Comelec also failed to submit any resolution / document to prove that it had notified all
political parties of the intended adoption of Resolution 6712. Also, long before the
issuance of the Resolution, Comelec had admittedly entered into a contract and acquired
 facilities pertaining to the implementation of the electronic transmission and official
tabulation of results.

5. The assailed Resolution has no constitutional and statutory basis. Comelec is the sole
body tasked to enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall and to ensure free, orderly,
honest, peaceful and credible elections is beyond cavil.

However, the duties of Comelec under the Constitution, RA 7166, and other election
laws are carried out at all times in its official capacity. There is no constitutional and
statutory basis for Comelec to undertake a separate and unofficial tabulation of
results, whether manually or electronically.

By conducting such unofficial tabulation of the results, Comelec descends to the level
of a private organization, spending public funds for the purpose. Besides, it is absurd for
Comelec to conduct 2 kinds of electoral counts: a slow but official count and an alleged
quicker but unofficial count. The results of each may substantially differ.

Clearly, the Resolution is an implementation of Phase 3 of the modernization program of

Comelec under RA 8436. Since this Court has already scrapped the contract for Phase 2,
Comelec cannot as yet implement Phase 3 of the program. This is provided in Sec 6 RA
8436.

SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission
on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system,
herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of
results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System
shall be applicable in all areas within the country only for the positions of president, vice-president, senators
and parties, organizations or coalitions participating under the party-list system.

To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise,
any supplies, equipment, materials and services needed for the holding of the elections by an expedited process
of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly
notified of and allowed to observe but not to participate in the bidding. If in spite of its diligent efforts to
implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the
Commission cannot fully implement the automated election system for national positions in the May 11, 1998
elections, the elections for both national and local positions shall be done manually except in the Autonomous
Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions.

The AES in RA 8436 constitutes the entire process of voting, counting of votes and
canvassing / consolidation of results corresponding to Phases 1, 2 and 3. The 3 phases
cannot be effected independently of each other. The implementation of Phase 2 is a
condition sine qua non to the implementation of Phase 3. The nullification by this Court
of the contract for Phase 2 effectively put on hold the implementation of Phase 3.

6. There is a great possibility that the unofficial results reflected in the transmission
would significantly vary from the results reflected in the Comelec official count.

As the results of the election votes are transposed from one document to another, and as
each document undergoes the procedure of canvassing by various Boards of Canvassers,
election returns and certificates of canvass are objected to and at times excluded and or
deferred, and not tallied

On the other hand, under the assailed Resolution, the precinct results of each city and
municipality would be immediately electronically transmitted to the NCC. Such data,
 which have not undergone the process of canvassing, would expectedly be dissimilar
to the data on which the official count would be based.

Resultantly, the official and unofficial canvass would most likely not tally. In the past, the
unofficial quick count conducted by NAMFREL has never tallied with that of the official
count of the Comelec. With a second unofficial count, allegations of trending would
most certainly be aggravated. The electoral process would be undermined.

The only utility claimed by Comelec for the unofficial count is to avert Dagdag bawas.
This is a total sham. The results from the unofficial count cannot validate the credibility
of the official tabulation.

Also, the crucial stage of encoding the precinct results in the computers requires human
intervention. Under the Resolution, encoding is accomplished by the employees of PMSI.
Thus, Dagdag bawas could still occur at this particular stage of the process.

The Comelec unofficial quick count would be but a needless duplication of the NAMFREL
quick count, an illegal and unnecessary waste of government funds and effort.

Conclusion:
Comelec may have laudable intentions. But rule of law requires that even the best intentions
must be carried out within the parameters of the Constitution and law.

Petition is granted. Resolution 6712 is declared null and void.