G.R. No. 188456 February 10, 2010
, as movants herein, seek a reconsideration of the
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R.
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES,
IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO
A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A.
PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN
JOSE MELO, COMELEC SPECIAL BIDS and AWARDS
COMMITTEE, represented by its CHAIRMAN HON. FERDINAND
RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT,
represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION
MANAGEMENT CORPORATION and SMARTMATIC
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President, JUAN
PONCE ENRILE, Movant-Intervenor.
RESOLUTION
VELASCO, JR., J.:
By Decision dated September 10, 2009, the Court denied the petition of H.
Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify
the contract-award of the 2010 Election Automation Project to the joint venture
of Total Information Management Corporation (TIM) and Smartmatic
International Corporation (Smartmatic). The Court also denied the petition-in-
intervention of Pete Q. Quadra, praying that the respondents be directed to
implement the minimum requirements provided under pars. (f) and (g), Section
6 of Republic Act No. (RA) 8436, or the Election Modernization Act, as
amended by RA 9369.
Petitioners Roque, et al. are again before the Court on a motion for
reconsideration, as supplemented, praying, as they did earlier, that the contract
award be declared null and void on the stated ground that it was made in
violation of the Constitution, statutes, and jurisprudence. 1 Intervening
petitioner also interposed a similar motion, but only to pray that the Board of
Election Inspectors be ordered to manually count the ballots after the printing
and electronic transmission of the election returns.
To both motions, private respondents TIM and Smartmatic, on the one hand,
and public respondents Commission on Elections (Comelec), et al., on the
other, have interposed their separate comments and/or oppositions.
As may be recalled, the underlying petition for certiorari, etc. on its face
assailed the award by Comelec of the poll automation project to the TIM-
Smartmatic joint venture, the challenge basically predicated on the non-
compliance of the contract award with the pilot-testing requirements of RA
9369 and the minimum system capabilities of the chosen automated election
system (AES), referring to the Precinct Count Optical Scan (PCOS) system.
The non-submission of documents to show the existence and scope of a valid
joint venture agreement between TIM and Smartmatic was also raised as a
nullifying ground, albeit later abandoned or at least not earnestly pursued.
The Court, in its September 10, 2009 Decision, dismissed the petition and the
petition-in-intervention on the following main grounds: (1) RA 8436, as
amended, does not require that the AES procured or, to be used for the 2010
nationwide fully automated elections must, as a condition sine qua non, have
been pilot-tested in the 2007 Philippine election, it being sufficient that the
capability of the chosen AES has been demonstrated in an electoral exercise in
a foreign jurisdiction; (2) Comelec has adopted a rigid technical evaluation
mechanism to ensure compliance of the PCOS with the minimum capabilities
standards prescribed by RA 8436, as amended, and its determination in this
regard must be respected absent grave abuse of discretion; (3) Comelec retains
under the automation arrangement its supervision, oversight, and control
mandate to ensure a free, orderly, and honest electoral exercise; it did not, by
entering into the assailed automation project contract, abdicate its duty to
enforce and administer all laws relative to the conduct of elections and decide,
at the first instance, all questions affecting elections; and (4) in accordance with
contract documents, continuity and back-up plans are in place to be activated in
case the PCOS machines falter during the actual election exercise.
Petitioners Roque, et al.
September 10, 2009 Decision on the following issues or grounds:
1. The Comelecs public pronouncements show that there is a "high probability"
that there will be failure of automated elections;
2. Comelec abdicated its constitutional functions in favor of Smartmatic;
3. There is no legal framework to guide the Comelec in appreciating automated
ballots in case the PCOS machines fail;
4. Respondents cannot comply with the requirements of RA 8436 for a source
code review;
5. Certifications submitted by private respondents as to the successful use of
the machines in elections abroad do not fulfill the requirement of Sec. 12 of RA
8436;
6. Private respondents will not be able to provide telecommunications facilities
that will assure 100% communications coverage at all times during the conduct
of the 2010 elections; and
7. Subcontracting the manufacture of PCOS machines to Quisdi violates the
Comelecs bidding rules.
Both public and private respondents, upon the other hand, insist that petitioners
motion for reconsideration should be held devoid of merit, because the motion,
for the most part, either advances issues or theories not raised in the petition for
certiorari, prohibition, and mandamus, and argues along speculative and
conjectural lines.
Upon taking a second hard look into the issues in the case at bar and the
arguments earnestly pressed in the instant motions, the Court cannot grant the
desired reconsideration.
Petitioners threshold argument delves on possibilities, on matters that may or
may not occur. The conjectural and speculative nature of the first issue raised
is reflected in the very manner of its formulation and by statements, such as "the
public pronouncements of public respondent COMELEC2 x x x clearly show
that there is a high probability that there will be automated failure of
elections";3 "there is a high probability that the use of PCOS machines in the
May 2010 elections will result in failure of elections"; 4 "the unaddressed
logistical nightmaresand the lack of contingency plans that should have been
crafted as a result of a pilot testmake an automated failure of elections very
probable";5 and "COMELEC committed grave abuse of discretion when it
signed x x x the contract for full automation x x x despite the likelihood of a
failure of elections."6
Speculations and conjectures are not equivalent to proof; they have little, if any,
probative value and, surely, cannot be the basis of a sound judgment.
Petitioners, to support their speculative venture vis--vis the possibility of
Comelec going manual, have attributed certain statements to respondent
Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net,
posted September 16, 2009.7
Reacting to the attribution, however, respondents TIM and Smartmatic, in their
comment, described the Melo pronouncements as made in the context of
Comelecs contingency plan. Petitioners, however, the same respondents
added, put a misleading spin to the Melo pronouncements by reproducing part
of the news item, but omitting to make reference to his succeeding statements
to arrive at a clearer and true picture.
Private respondents observation is well-taken. Indeed, it is easy to selectively
cite portions of what has been said, sometimes out of their proper context, in
order to assert a misleading conclusion. The effect can be dangerous. Improper
meaning may be deliberately attached to innocent views or even occasional
crude comments by the simple expediency of lifting them out of context from
any publication. At any event, the Court took it upon itself to visit the website,
whence petitioners deduced their position on the possible failure of automated
elections in problem areas and found the following items:
Allaying fears of failure of elections in 2010, the x x x [Comelec] said it will
prepare for manual balloting, especially for areas with problems in electricity
and telecommunications network coverage. x x x
1
"Aside from preparations for poll automation, Comelec is also preparing for
manual elections sa mga liblib na lugar [in remote places] x x x, provinces with
no electricity and would have issues in electronic transmission. We are ready
for manual polls in at least 30 percent or 50 percent of the country as a last
contingency measure in case the contingency plans for automation are difficult
to implement," said Melo.
The poll chief was reacting to statements expressing the possibility of
failure of elections due to the novelty of poll automation.
"The occurrence of nationwide failure of elections as alleged by doomsayers is
impossible. Under the laws of probability, all 80,000 PCOS machines
nationwide cannot breakdown. Maybe several would but we have standby units
for this and we also have preparations for manual elections," he
said.8 (Emphasis added.)
Petitioners next maintain that the Comelec abdicated its constitutional
mandate9 to decide all questions affecting elections when, under Article 3.3 10 of
the poll automation contract, it surrendered control of the system and technical
aspects of the 2010 automated elections to Smartmatic in violation of Sec.
2611 of RA 8436. Comelec, so petitioners suggest, should have stipulated that
its Information Technology (IT) Department shall have charge of the technical
aspects of the elections.
Petitioners above contention, as well as the arguments, citations, and premises
holding it together, is a rehash of their previous position articulated in their
memorandum12 in support of their petition. They have been considered,
squarely addressed, and found to be without merit in the Decision subject
hereof. The Court is not inclined to embark on another extended discussion of
the same issue again. Suffice it to state that, under the automation contract,
Smartmatic is given a specific and limited technical task to assist the Comelec
in implementing the AES. But at the end of the day, the Smarmatic-TIM joint
venture is merely a service provider and lessor of goods and services to the
Comelec, which shall have exclusive supervision and control of the electoral
process. Art. 6.7 of the automation contract could not have been more clear:
6.7 Subject to the provisions of the General Instructions to be issued by the
Commission En Banc, the entire process of voting, counting, transmission,
consolidation and canvassing of votes shall [still] be conducted by
COMELECs personnel and officials and their performance, completion and
final results according to specifications and within specified periods shall be the
shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)
The aforequoted provision doubtless preserves Comelecs constitutional and
statutory responsibilities. But at the same time, it realistically recognizes the
complexity and the highly technical nature of the automation project and
addresses the contingencies that the novelty of election automation brings.
Petitioners posture anent the third issue, i.e, there no is legal framework to
guide Comelec in the appreciation of automated ballots or to govern manual
count should PCOS machines fail, cannot be accorded cogency. First, it glosses
over the continuity and back-up plans that would be implemented in case the
PCOS machines falter during the 2010 elections.13 The overall fallback strategy
and options to address even the worst-case scenariothe wholesale breakdown
of the 80,000 needed machines nationwide and of the 2,000 reserved units
have been discussed in some detail in the Decision subject of this recourse. The
Court need not belabor them again.
While a motion for reconsideration may tend to dwell on issues already resolved
in the decision sought to be reconsideredand this should not be an obstacle
for a reconsiderationthe hard reality is that petitioners have failed to raise
matters substantially plausible or compellingly persuasive to warrant the
desired course of action.
Second, petitioners position presupposes that the Comelec is, in the
meanwhile, standing idly by, totally unconcerned with that grim eventuality and
the scenarios petitioners envision and depict. Comelec, to reiterate, is the
constitutional body tasked to enforce and administer all laws and regulations
relative to the conduct of an election. In the discharge of this responsibility,
Comelec has been afforded enough latitude in devising means and methods that
would enable it to accomplish the great objective for which it was created. In
the matter of the administration of laws relative to the conduct of elections, the
Courtor petitioners for that mattermust not, by any preemptive move or
any excessive zeal, take away from Comelec the initiative that by law pertains
to it.14 It should not be stymied with restrictions that would perhaps be justified
in the case of an organization of lesser responsibility.15
Significantly, petitioners, in support of their position on the lack-of-legal-
framework issue, invoke the opinion of Associate, later Chief, Justice Artemio
Panganiban in Loong v. Comelec,16 where he made the following observations:
"Resort to manual appreciation of the ballots is precluded by the basic features
of the automated election system,"17 and "the rules laid down in the Omnibus
Election Code (OEC) for the appreciation and counting of ballots cast in a
manual election x x x are inappropriate, if not downright useless, to the proper
appreciation and reading of the ballots used in the automated
system."18 Without delving on its wisdom and validity, the view of Justice
Panganiban thus cited came by way of a dissenting opinion. As such, it is
without binding effect, a dissenting opinion being a mere expression of the
individual view of a member of the Court or other collegial adjudicating body,
while disagreeing with the conclusion held by the majority. 19
Petitioners insist next that public respondents cannot comply with the
requirement of a source code20 review as mandated by Sec. 14 of RA 8436, as
amended, which provides:
SEC. 14. Examination and Testing of Equipment or Device of the AES and
Opening of the Source Code of Review.Once an AES Technology is selected
for implementation, the Commission shall promptly make the source code of
that technology available and open to any interested political party or groups
which may conduct their own review thereof.
Pursuing the point, after citing a commentary of an IT expert on the importance
of a source code review, petitioners state the observation that "there are strong
indications of [the inability] to comply x x x since the source code, which runs
the PCOS machines, will effectively be kept secret from the people."21
Again, petitioners engage in an entirely speculative exercise, second- guessing
what the Comelec can and will probably do, or what it cannot and probably will
not do, with respect to the implementation of a statutory provision. The fact that
a source code review is not expressly included in the Comelec schedule of
activities is not an indication, as petitioners suggest, that Comelec will not
implement such review. Comelec, in its Comment on the Motion for
Reconsideration, manifests its intention to make available and open the source
code to all political and interested parties, but under a controlled environment
to obviate replication and tampering of the source code, thus protecting, in the
process, the intellectual proprietary right of Smartmatic to the source code.
Absent compelling proof to the contrary, the Court accords the Comelec, which
enjoys the presumption of good faith in the performance of its duties in the first
place, the benefit of the doubt.
And going to another but recycled issue, petitioners would have the Court
invalidate the automation contract on the ground that the certifications
submitted by Smartmatic during the bidding, showing that the PCOS
technology has been used in elections abroad, do not comply with Sec. 12 22 of
RA 8436.
We are not convinced.
As stressed in our September 10, 2009 Decision, the AES chosen by Comelec
for the 2010 elections has been successfully deployed in previous electoral
exercises in foreign countries, such as Ontario, Canada and New York,
USA,23 albeit Smartmatic was not necessarily the system provider.
Roque, et al., in their petition, had questioned the certifications to this effect,
arguing that these certifications were not issued to respondent TIM-Smartmatic,
but to a third party, Dominion Voting Systems. Resolving the challenge, the
Court, in effect, said that the system subject of the certifications was the same
one procured by Comelec for the 2010 elections. And besides, the Licensing
Agreement between Smartmatic and the Dominion Voting Systems indicates
that the former is the entity licensed by the latter to use the system in the
Philippines.
Presently, petitioners assert that the system certified as having been used in New
York was the Dominion Image Cast, a ballot marking device.
Petitioners have obviously inserted, at this stage of the case, an entirely new
factual dimension to their cause. This we cannot allow for compelling reasons.
2
For starters, the Court cannot plausibly validate this factual assertion of
petitioners. As it is, private respondents have even questioned the reliability of
the website24 whence petitioners base their assertion, albeit the former, citing
the same website, state that the Image Cast Precinct tabulation device refers to
the Dominions PCOS machines.

Moreover, as a matter of sound established practice, points of law, theories,

issues, and arguments not raised in the original proceedings cannot be brought
out on review. Basic considerations of fair play impel this rule. The imperatives
of orderly, if not speedy, justice frown on a piecemeal presentation of
evidence25 and on the practice of parties of going to trial haphazardly.26

Moving still to another issue, petitioners claim that "there are very strong
indications that Private Respondents will not be able to provide for
telecommunication facilities for areas without these facilities."27 This
argument, being again highly speculative, is without evidentiary value and
hardly provides a ground for the Court to nullify the automation contract.
Surely, a possible breach of a contractual stipulation is not a legal reason to
prematurely rescind, much less annul, the contract.1avvphi1

Finally, petitioners argue that, based on news reports, 28 the TIM-Smartmatic

joint venture has entered into a new contract with Quisdi, a Shanghai-based
company, to manufacture on its behalf the needed PCOS machines to fully
automate the 2010 elections.29 This arrangement, petitioners aver, violates the
bid rules proscribing sub-contracting of significant components of the
automation project.

The argument is untenable, based as it is again on news reports. Surely,

petitioners cannot expect the Court to act on unverified reports foisted on it.
And, of course, the Court is at a loss to understand how the sub-contract would,
in the scheme of things, constitute grave abuse of discretion on the part of
Comelec so as to nullify the contract award of the automation project. As
petitioners themselves acknowledge, again citing news reports, "Smartmatic
has unilaterally made the new subcontract to the Chinese
company."30 Petitioners admit too, albeit with qualification, that RA 9184
allows subcontracting of a portion of the automation project.31

The motion of intervenor Quadra deals with the auditability of the results of the
automated elections. His concern has already been addressed by the Court in its
Decision. As we have said, the AES procured by the Comelec is a paper-based
system, which has a provision for system auditability, since the voter would be
able, if needed, to verify if the PCOS machine has scanned, recorded, and
counted his vote properly. All actions done on the machine can be printed out
by the Board of Election Inspectors Chairperson as an audit log. 32

On the basis of the arguments, past and present, presented by the petitioners and
intervenor, the Court does not find any grave abuse of discretion on the part of
the Comelec in awarding the automation contract to the joint venture of private
respondents.

In closing, the Court harks back to its parting message embodied in its
September 10, 2009 Decision, but this time even more mindful of warnings and
apprehensions of well-meaning sectors of society, including some members of
the Court, about the possibility of failure of elections. The Court, to repeat, will
not venture to say that nothing could go wrong in the conduct of the 2010
nationwide automated elections. Neither will it guarantee, as it is not even
equipped with the necessary expertise to guarantee, the effectiveness of the
voting machines and the integrity of the counting and consolidation software
embedded in them. That difficult and complex undertaking belongs at the first
instance to the Comelec as part of its mandate to insure orderly and peaceful
elections. The Comelec, as it were, is laboring under a very tight timeline. It
would accordingly need the help of all advocates of orderly and honest
elections, all men and women of goodwill, to assist Comelec personnel in
addressing the fears expressed about the integrity of the system. After all,
peaceful, fair, honest, and credible elections is everyones concern.

WHEREFORE, the instant separate motions for reconsideration of the main and
intervening petitioners are DENIED.

SO ORDERED.

3
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION
ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case would
indubitably have a profound effect on the political aspect of our national
existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of age
and holders of a college degree. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes
practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers incident
to actions and special proceedings, conveyancing, the preparation of legal
instruments of all kinds, and the giving of all legal advice to clients. It embraces
all advice to clients and all actions taken for them in matters connected with the
law. An attorney engages in the practice of law by maintaining an office where
he is held out to be-an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with opposing counsel
about pending litigation, and fixing and collecting fees for services rendered by
his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person
is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle controversies and there,
in such representative capacity performs any act or acts for the purpose of
obtaining or defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the business of advising
clients as to their rights under the law, or while so engaged performs any act or
acts either in court or outside of court for that purpose, is engaged in the practice
of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340
Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings on
behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters connected
with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in matters of estate
and guardianship have been held to constitute law practice, as do the preparation
and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and
conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to proceedings
in court. It embraces conveyancing, the giving of legal advice on a large variety
of subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these
transactions may have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary
functions of an attorney or counselor at law bear an intimate relation to the
administration of justice by the courts. No valid distinction, so far as concerns
the question set forth in the order, can be drawn between that part of the work
of the lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the welfare
of the public that these manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral character, and acting
at all times under the heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-
666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis
ours)
The University of the Philippines Law Center in conducting orientation briefing
for new lawyers (1974-1975) listed the dimensions of the practice of law in
even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual
for attorneys engaging in the active practice of their profession, and he follows
some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are characteristics
of the profession. Generally, to practice law is to give notice or render any kind
of service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by Section
I is that "They must be Members of the Philippine Bar" I am quoting from
the provision "who have been engaged in the practice of law for at least ten
years".
4
To avoid any misunderstanding which would result in excluding members of
the Bar who are now employed in the COA or Commission on Audit, we would
like to make the clarification that this provision on qualifications regarding
members of the Bar does not necessarily refer or involve actual practice of law
outside the COA We have to interpret this to mean that as long as the lawyers
who are employed in the COA are using their legal knowledge or legal talent
in their respective work within COA, then they are qualified to be considered
for appointment as members or commissioners, even chairman, of the
Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the practice
of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article on
the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our
provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent
to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit (COA)
should either be certified public accountants with not less than ten years of
auditing practice, or members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are private
practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career
Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone are
often called "sole practitioners." Groups of lawyers are called "firms." The firm
is usually a partnership and members of the firm are the partners. Some firms
may be organized as professional corporations and the members called
shareholders. In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice
is essentially tautologous, unhelpful defining the practice of law as that which
lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.:
Minnesota, 1986], p. 593). The practice of law is defined as the performance of
any acts . . . in or out of court, commonly understood to be the practice of law.
(State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d
863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d
623, 626 [1941]). Because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be too
global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most
publicly familiar role for lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, and a large percentage
spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless,
many lawyers do continue to litigate and the litigating lawyer's role colors much
of both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip,
a corporate lawyer, once articulated on the importance of a lawyer as a business
counselor in this wise: "Even today, there are still uninformed laymen whose
concept of an attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as businessmen,
know that in most developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General practitioners of law
who do both litigation and non-litigation work also know that in most cases they
find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been
described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t]
need not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a
number of legal tasks, each involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice wig usually perform at
least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role
such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one
of the relatively rare types a litigator who specializes in this work to the
exclusion of much else. Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills of client counselling, advice-
giving, document drafting, and negotiation. And increasingly lawyers find that
the new skills of evaluation and mediation are both effective for many clients
and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that
is constrained in very important ways, at least theoretically, so as to remove
from it some of the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in which
the lawyer is organized into a social unit to perform that work. The most
common of these roles are those of corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional
concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting
and weighing of significant conditional factors, the appraisal of major trends,
the necessity of estimating the consequences of given courses of action, and the
need for fast decision and response in situations of acute danger have prompted
the use of sophisticated concepts of information flow theory, operational
analysis, automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive
component of the policy-making process, wherein a "model", of the decisional
5
context or a segment thereof is developed to test projected alternative courses
of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level of
decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance Law,"
Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money
and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of attorneys
employed by a single corporation will vary with the size and type of the
corporation. Many smaller and some large corporations farm out all their legal
problems to private law firms. Many others have in-house counsel only for
certain matters. Other corporation have a staff large enough to handle most legal
problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and other
adjudicatory agencies (including the Securities and Exchange Commission),
and in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. (
Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from
the action, or not understanding how one's work actually fits into the work of
the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes offered
this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived by
many as glamorous, tills is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger
attorneys do their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to
wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts them."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so
to speak. No longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the Securities Code but
an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary
skins applicable to a corporate counsel's management responsibilities; and (3)
a devotion to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's role.
For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides counsel
for are required to make, and the need to think about a corporation's; strategy at
multiple levels. The salience of the nation-state is being reduced as firms deal
both with global multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only with public entities
but with each other often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder in some cases participating in the organization
and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries.
In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan's MITI is world famous. (Emphasis
supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all kinds
of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors
of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective managerial procedures and
to understand relationships of financial liability and insurance considerations.
(Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and pressing
immediate problems. An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of systematic
problems physical, economic, managerial, social, and psychological. New
programming techniques now make the system dynamics principles more
accessible to managers including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it can
be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio of
cases. (Emphasis supplied)
6
Third Modeling for Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of negotiations. All integrated
set of such tools provide coherent and effective negotiation support, including
hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise
a major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities at that time
when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken
those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general
counsel has emerged in the last decade as one of the most vibrant subsets of the
legal profession. The corporate counsel hear responsibility for key aspects of
the firm's strategic issues, including structuring its global operations, managing
improved relationships with an increasingly diversified body of employees,
managing expanded liability exposure, creating new and varied interactions
with public decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on corporate
activities, he must, at the very least, also gain a working knowledge of the
management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than
a passing knowledge of financial law affecting each aspect of their work. Yet,
many would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino
to the position of Chairman of the COMELEC in a letter received by the
Secretariat of the Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of law for at least
ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination
of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath
of office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86-55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its inception in 1972-73.
He has also been paying his professional license fees as lawyer for more than
ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting acquainted
with the laws of member-countries negotiating loans and coordinating legal,
economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of
an investment bank and subsequently of a business conglomerate, and since
1986, has rendered services to various companies as a legal and economic
consultant or chief executive officer. As former Secretary-General (1986) and
National Chairman (1987) of NAMFREL. Monsod's work involved being
knowledgeable in election law. He appeared for NAMFREL in its accreditation
hearings before the Comelec. In the field of advocacy, Monsod, in his personal
capacity and as former Co-Chairman of the Bishops Businessmen's Conference
for Human Development, has worked with the under privileged sectors, such as
the farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land reform
bill. Monsod also made use of his legal knowledge as a member of the Davide
Commission, a quast judicial body, which conducted numerous hearings (1990)
and as a member of the Constitutional Commission (1986-1987), and Chairman
of its Committee on Accountability of Public Officers, for which he was cited
by the President of the Commission, Justice Cecilia Muoz-Palma for
"innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used
to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which
is adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise
the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies
for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down
the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in maintaining
their countries' sovereignty. (Condensed from the work paper, entitled
"Wanted: Development Lawyers for Developing Nations," submitted by L.
Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation
and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer
may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract agreements
contain such a mixture of technical language that they should be carefully
drafted and signed only with the advise of competent counsel in conjunction
with the guidance of adequate technical support personnel. (See International
Law Aspects of the Philippine External Debts, an unpublished dissertation,
U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set
of terms and conditions which determines the contractual remedies for a failure
to perform one or more elements of the contract. A good agreement must not
only define the responsibilities of both parties, but must also state the recourse
open to either party when the other fails to discharge an obligation. For a
compleat debt restructuring represents a devotion to that principle which in the
ultimate analysis is sine qua non for foreign loan agreements-an adherence to
the rule of law in domestic and international affairs of whose kind U.S. Supreme
Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners,
they beat no drums; but where they are, men learn that bustle and bush are not
the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The
7
Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine
Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into consideration
the liberal construction intended by the framers of the Constitution, Atty.
Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a
lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor verily more than satisfy the
constitutional requirement that he has been engaged in the practice of law
for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA
327, the Court said:
Appointment is an essentially discretionary power and must be performed by
the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. If he
does, then the appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. This is a political question
involving considerations of wisdom which only the appointing authority can
decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no authority
to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is
vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists
of four (4) stages: (1) nomination; (2) confirmation by the Commission on
Appointments; (3) issuance of a commission (in the Philippines, upon
submission by the Commission on Appointments of its certificate of
confirmation, the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No.
L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for
three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which
modern connotation is exactly what was intended by the eminent framers of the
1987 Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practised two or three times a week
and would outlaw say, law practice once or twice a year for ten consecutive
years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in
my written opinion, I made use of a definition of law practice which really
means nothing because the definition says that law practice " . . . is what people
ordinarily mean by the practice of law." True I cited the definition but only by
way of sarcasm as evident from my statement that the definition of law practice
by "traditional areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on
what the law means, are actually practicing law. In that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the
Philippine Bar, who has been practising law for over ten years. This is different
from the acts of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent
President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings
on Monsod's confirmation, implicitly determined that he possessed the
necessary qualifications as required by law. The judgment rendered by the
Commission in the exercise of such an acknowledged power is beyond judicial
interference except only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution).
Thus, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Commission's judgment. In the instant case, there is no
occasion for the exercise of the Court's corrective power, since no abuse, much
less a grave abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President,
may the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible that
the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing Samson.
Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed
an iron rod burning white-hot two or three inches away from in front of
Samson's eyes. This blinded the man. Upon hearing of what had happened to
her beloved, Delilah was beside herself with anger, and fuming with righteous
fury, accused the procurator of reneging on his word. The procurator calmly
replied: "Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
8
EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her
capacity as ACTING CHAIRPERSON of the COMMISSION ON
ELECTIONS, Respondent.
DECISION
CRUZ, J.:
The petitioner is challenging the designation by the President of the Philippines
of Associate Commissioner Haydee B. Yorac as Acting Chairman of the
Commission on Elections, in place of Chairman Hilario B. Davide, who had
been named chairman of the fact-finding commission to investigate the
December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not
in issue in this case. What is the power of the President of the Philippines to
make the challenged designation in view of the status of the Commission on
Elections as an independent constitutional body and the specific provision of
Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any
Member (of the Commission on Elections) be appointed or designated in a
temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101,
where President Elpidio Quirino designated the Solicitor General as acting
member of the Commission on Elections and the Court revoked the designation
as contrary to the Constitution. It is also alleged that the respondent is not even
the senior member of the Commission on Elections, being outranked by
Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the
Commission on Elections is an internal matter that should be resolved by the
members themselves and that the intrusion of the President of the Philippines
violates their independence. He cites the practice in this Court, where the senior
Associate Justice serves as Acting Chief Justice in the absence of the Chief
Justice. No designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is
necessary in the case of the Supreme Court because the temporary succession
cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule
is found in Section 5 of BP 129 for the Court of Appeals. There is no such
arrangement, however, in the case of the Commission on Elections. The
designation made by the President of the Philippines should therefore be
sustained for reasons of "administrative expediency," to prevent disruption of
the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest
that the operations of the Commission on Elections would have been disturbed
or stalemated if the President of the Philippines had not stepped in and
designated an Acting Chairman. There did not seem to be any such problem. In
any event, even assuming that difficulty, we do not agree that "only the
President (could) act to fill the hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the
Constitutional Commissions as "independent." Although essentially executive
in nature, they are not under the control of the President of the Philippines in
the discharge of their respective functions. Each of these Commissions
conducts its own proceedings under the applicable laws and its own rules and
in the exercise of its own discretion. Its decisions, orders and rulings are subject
only to review on Certiorari by this Court as provided by the Constitution in
Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman
comes under that discretion. That discretion cannot be exercised for it, even
with its consent, by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary
and therefore revocable at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of the respondent as Acting
Chairman of the Commission on Elections may be withdrawn by the President
of the Philippines at any time and for whatever reason she sees fit. It is doubtful
if the respondent, having accepted such designation, will not be estopped from
challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be
removed at will from her permanent position as Associate Commissioner. It is
no less true, however, that she can be replaced as Acting Chairman, with or
without cause, and thus deprived of the powers and perquisites of that
temporary position.
The lack of a statutory rule covering the situation at bar is no justification for
the President of the Philippines to fill the void by extending the temporary
designation in favor of the respondent. This is still a government of laws and
not of men. The problem allegedly sought to be corrected, if it existed at all, did
not call for presidential action. The situation could have been handled by the
members of the Commission on Elections themselves without the participation
of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on
Elections would most likely have been guided by the seniority rule as they
themselves would have appreciated it. In any event, that choice and the basis
thereof were for them and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was
moved only by the best of motives when she issued the challenged designation.
But while conceding her goodwill, we cannot sustain her act because it conflicts
with the Constitution. Hence, even as this Court revoked the designation in the
Bautista case, so too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the
Commission on Elections, foremost among which is the security of tenure of its
members. That guaranty is not available to the respondent as Acting Chairman
of the Commission on Elections by designation of the President of the
Philippines.
WHEREFORE, the designation by the President of the Philippines of
respondent Haydee B. Yorac as Acting Chairman of the Commission on
Elections is declared UNCONSTITUTIONAL, and the respondent is hereby
ordered to desist from serving as such. This is without prejudice to the
incumbent Associate Commissioners of the Commission on Elections restoring
her to the same position if they so desire, or choosing another member in her
place, pending the appointment of a permanent Chairman by the President of
the Philippines with the consent of the Commission on Appointments.: rd
SO ORDERED.
9
G.R. No. 188456 February 10, 2010
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R.
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES,
IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO
A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A.
PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN
JOSE MELO, COMELEC SPECIAL BIDS and AWARDS
COMMITTEE, represented by its CHAIRMAN HON. FERDINAND
RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT,
represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION
MANAGEMENT CORPORATION and SMARTMATIC
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President, JUAN
PONCE ENRILE, Movant-Intervenor.
RESOLUTION
VELASCO, JR., J.:
By Decision dated September 10, 2009, the Court denied the petition of H.
Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify
the contract-award of the 2010 Election Automation Project to the joint venture
of Total Information Management Corporation (TIM) and Smartmatic
International Corporation (Smartmatic). The Court also denied the petition-in-
intervention of Pete Q. Quadra, praying that the respondents be directed to
implement the minimum requirements provided under pars. (f) and (g), Section
6 of Republic Act No. (RA) 8436, or the Election Modernization Act, as
amended by RA 9369.
Petitioners Roque, et al. are again before the Court on a motion for
reconsideration, as supplemented, praying, as they did earlier, that the contract
award be declared null and void on the stated ground that it was made in
violation of the Constitution, statutes, and jurisprudence. 1 Intervening
petitioner also interposed a similar motion, but only to pray that the Board of
Election Inspectors be ordered to manually count the ballots after the printing
and electronic transmission of the election returns.
To both motions, private respondents TIM and Smartmatic, on the one hand,
and public respondents Commission on Elections (Comelec), et al., on the
other, have interposed their separate comments and/or oppositions.
As may be recalled, the underlying petition for certiorari, etc. on its face
assailed the award by Comelec of the poll automation project to the TIM-
Smartmatic joint venture, the challenge basically predicated on the non-
compliance of the contract award with the pilot-testing requirements of RA
9369 and the minimum system capabilities of the chosen automated election
system (AES), referring to the Precinct Count Optical Scan (PCOS) system.
The non-submission of documents to show the existence and scope of a valid
joint venture agreement between TIM and Smartmatic was also raised as a
nullifying ground, albeit later abandoned or at least not earnestly pursued.
The Court, in its September 10, 2009 Decision, dismissed the petition and the
petition-in-intervention on the following main grounds: (1) RA 8436, as
amended, does not require that the AES procured or, to be used for the 2010
nationwide fully automated elections must, as a condition sine qua non, have
been pilot-tested in the 2007 Philippine election, it being sufficient that the
capability of the chosen AES has been demonstrated in an electoral exercise in
a foreign jurisdiction; (2) Comelec has adopted a rigid technical evaluation
mechanism to ensure compliance of the PCOS with the minimum capabilities
standards prescribed by RA 8436, as amended, and its determination in this
regard must be respected absent grave abuse of discretion; (3) Comelec retains
under the automation arrangement its supervision, oversight, and control
mandate to ensure a free, orderly, and honest electoral exercise; it did not, by
entering into the assailed automation project contract, abdicate its duty to
enforce and administer all laws relative to the conduct of elections and decide,
at the first instance, all questions affecting elections; and (4) in accordance with
contract documents, continuity and back-up plans are in place to be activated in
case the PCOS machines falter during the actual election exercise.
Petitioners Roque, et al., as movants herein, seek a reconsideration of the
September 10, 2009 Decision on the following issues or grounds:
1. The Comelecs public pronouncements show that there is a "high probability"
that there will be failure of automated elections;
2. Comelec abdicated its constitutional functions in favor of Smartmatic;
3. There is no legal framework to guide the Comelec in appreciating automated
ballots in case the PCOS machines fail;
4. Respondents cannot comply with the requirements of RA 8436 for a source
code review;
5. Certifications submitted by private respondents as to the successful use of
the machines in elections abroad do not fulfill the requirement of Sec. 12 of RA
8436;
6. Private respondents will not be able to provide telecommunications facilities
that will assure 100% communications coverage at all times during the conduct
of the 2010 elections; and
7. Subcontracting the manufacture of PCOS machines to Quisdi violates the
Comelecs bidding rules.
Both public and private respondents, upon the other hand, insist that petitioners
motion for reconsideration should be held devoid of merit, because the motion,
for the most part, either advances issues or theories not raised in the petition for
certiorari, prohibition, and mandamus, and argues along speculative and
conjectural lines.
Upon taking a second hard look into the issues in the case at bar and the
arguments earnestly pressed in the instant motions, the Court cannot grant the
desired reconsideration.
Petitioners threshold argument delves on possibilities, on matters that may or
may not occur. The conjectural and speculative nature of the first issue raised
is reflected in the very manner of its formulation and by statements, such as "the
public pronouncements of public respondent COMELEC2 x x x clearly show
that there is a high probability that there will be automated failure of
elections";3 "there is a high probability that the use of PCOS machines in the
May 2010 elections will result in failure of elections"; 4 "the unaddressed
logistical nightmaresand the lack of contingency plans that should have been
crafted as a result of a pilot testmake an automated failure of elections very
probable";5 and "COMELEC committed grave abuse of discretion when it
signed x x x the contract for full automation x x x despite the likelihood of a
failure of elections."6
Speculations and conjectures are not equivalent to proof; they have little, if any,
probative value and, surely, cannot be the basis of a sound judgment.
Petitioners, to support their speculative venture vis--vis the possibility of
Comelec going manual, have attributed certain statements to respondent
Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net,
posted September 16, 2009.7
Reacting to the attribution, however, respondents TIM and Smartmatic, in their
comment, described the Melo pronouncements as made in the context of
Comelecs contingency plan. Petitioners, however, the same respondents
added, put a misleading spin to the Melo pronouncements by reproducing part
of the news item, but omitting to make reference to his succeeding statements
to arrive at a clearer and true picture.
Private respondents observation is well-taken. Indeed, it is easy to selectively
cite portions of what has been said, sometimes out of their proper context, in
order to assert a misleading conclusion. The effect can be dangerous. Improper
meaning may be deliberately attached to innocent views or even occasional
crude comments by the simple expediency of lifting them out of context from
any publication. At any event, the Court took it upon itself to visit the website,
whence petitioners deduced their position on the possible failure of automated
elections in problem areas and found the following items:
Allaying fears of failure of elections in 2010, the x x x [Comelec] said it will
prepare for manual balloting, especially for areas with problems in electricity
and telecommunications network coverage. x x x
10
"Aside from preparations for poll automation, Comelec is also preparing for
manual elections sa mga liblib na lugar [in remote places] x x x, provinces with
no electricity and would have issues in electronic transmission. We are ready
for manual polls in at least 30 percent or 50 percent of the country as a last
contingency measure in case the contingency plans for automation are difficult
to implement," said Melo.
The poll chief was reacting to statements expressing the possibility of
failure of elections due to the novelty of poll automation.
"The occurrence of nationwide failure of elections as alleged by doomsayers is
impossible. Under the laws of probability, all 80,000 PCOS machines
nationwide cannot breakdown. Maybe several would but we have standby units
for this and we also have preparations for manual elections," he
said.8 (Emphasis added.)
Petitioners next maintain that the Comelec abdicated its constitutional
mandate9 to decide all questions affecting elections when, under Article 3.3 10 of
the poll automation contract, it surrendered control of the system and technical
aspects of the 2010 automated elections to Smartmatic in violation of Sec.
2611 of RA 8436. Comelec, so petitioners suggest, should have stipulated that
its Information Technology (IT) Department shall have charge of the technical
aspects of the elections.
Petitioners above contention, as well as the arguments, citations, and premises
holding it together, is a rehash of their previous position articulated in their
memorandum12 in support of their petition. They have been considered,
squarely addressed, and found to be without merit in the Decision subject
hereof. The Court is not inclined to embark on another extended discussion of
the same issue again. Suffice it to state that, under the automation contract,
Smartmatic is given a specific and limited technical task to assist the Comelec
in implementing the AES. But at the end of the day, the Smarmatic-TIM joint
venture is merely a service provider and lessor of goods and services to the
Comelec, which shall have exclusive supervision and control of the electoral
process. Art. 6.7 of the automation contract could not have been more clear:
6.7 Subject to the provisions of the General Instructions to be issued by the
Commission En Banc, the entire process of voting, counting, transmission,
consolidation and canvassing of votes shall [still] be conducted by
COMELECs personnel and officials and their performance, completion and
final results according to specifications and within specified periods shall be the
shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)
The aforequoted provision doubtless preserves Comelecs constitutional and
statutory responsibilities. But at the same time, it realistically recognizes the
complexity and the highly technical nature of the automation project and
addresses the contingencies that the novelty of election automation brings.
Petitioners posture anent the third issue, i.e, there no is legal framework to
guide Comelec in the appreciation of automated ballots or to govern manual
count should PCOS machines fail, cannot be accorded cogency. First, it glosses
over the continuity and back-up plans that would be implemented in case the
PCOS machines falter during the 2010 elections.13 The overall fallback strategy
and options to address even the worst-case scenariothe wholesale breakdown
of the 80,000 needed machines nationwide and of the 2,000 reserved units
have been discussed in some detail in the Decision subject of this recourse. The
Court need not belabor them again.
While a motion for reconsideration may tend to dwell on issues already resolved
in the decision sought to be reconsideredand this should not be an obstacle
for a reconsiderationthe hard reality is that petitioners have failed to raise
matters substantially plausible or compellingly persuasive to warrant the
desired course of action.
Second, petitioners position presupposes that the Comelec is, in the
meanwhile, standing idly by, totally unconcerned with that grim eventuality and
the scenarios petitioners envision and depict. Comelec, to reiterate, is the
constitutional body tasked to enforce and administer all laws and regulations
relative to the conduct of an election. In the discharge of this responsibility,
Comelec has been afforded enough latitude in devising means and methods that
would enable it to accomplish the great objective for which it was created. In
the matter of the administration of laws relative to the conduct of elections, the
Courtor petitioners for that mattermust not, by any preemptive move or
any excessive zeal, take away from Comelec the initiative that by law pertains
to it.14 It should not be stymied with restrictions that would perhaps be justified
in the case of an organization of lesser responsibility.15
Significantly, petitioners, in support of their position on the lack-of-legal-
framework issue, invoke the opinion of Associate, later Chief, Justice Artemio
Panganiban in Loong v. Comelec,16 where he made the following observations:
"Resort to manual appreciation of the ballots is precluded by the basic features
of the automated election system,"17 and "the rules laid down in the Omnibus
Election Code (OEC) for the appreciation and counting of ballots cast in a
manual election x x x are inappropriate, if not downright useless, to the proper
appreciation and reading of the ballots used in the automated
system."18 Without delving on its wisdom and validity, the view of Justice
Panganiban thus cited came by way of a dissenting opinion. As such, it is
without binding effect, a dissenting opinion being a mere expression of the
individual view of a member of the Court or other collegial adjudicating body,
while disagreeing with the conclusion held by the majority. 19
Petitioners insist next that public respondents cannot comply with the
requirement of a source code20 review as mandated by Sec. 14 of RA 8436, as
amended, which provides:
SEC. 14. Examination and Testing of Equipment or Device of the AES and
Opening of the Source Code of Review.Once an AES Technology is selected
for implementation, the Commission shall promptly make the source code of
that technology available and open to any interested political party or groups
which may conduct their own review thereof.
Pursuing the point, after citing a commentary of an IT expert on the importance
of a source code review, petitioners state the observation that "there are strong
indications of [the inability] to comply x x x since the source code, which runs
the PCOS machines, will effectively be kept secret from the people."21
Again, petitioners engage in an entirely speculative exercise, second- guessing
what the Comelec can and will probably do, or what it cannot and probably will
not do, with respect to the implementation of a statutory provision. The fact that
a source code review is not expressly included in the Comelec schedule of
activities is not an indication, as petitioners suggest, that Comelec will not
implement such review. Comelec, in its Comment on the Motion for
Reconsideration, manifests its intention to make available and open the source
code to all political and interested parties, but under a controlled environment
to obviate replication and tampering of the source code, thus protecting, in the
process, the intellectual proprietary right of Smartmatic to the source code.
Absent compelling proof to the contrary, the Court accords the Comelec, which
enjoys the presumption of good faith in the performance of its duties in the first
place, the benefit of the doubt.
And going to another but recycled issue, petitioners would have the Court
invalidate the automation contract on the ground that the certifications
submitted by Smartmatic during the bidding, showing that the PCOS
technology has been used in elections abroad, do not comply with Sec. 12 22 of
RA 8436.
We are not convinced.
As stressed in our September 10, 2009 Decision, the AES chosen by Comelec
for the 2010 elections has been successfully deployed in previous electoral
exercises in foreign countries, such as Ontario, Canada and New York,
USA,23 albeit Smartmatic was not necessarily the system provider.
Roque, et al., in their petition, had questioned the certifications to this effect,
arguing that these certifications were not issued to respondent TIM-Smartmatic,
but to a third party, Dominion Voting Systems. Resolving the challenge, the
Court, in effect, said that the system subject of the certifications was the same
one procured by Comelec for the 2010 elections. And besides, the Licensing
Agreement between Smartmatic and the Dominion Voting Systems indicates
that the former is the entity licensed by the latter to use the system in the
Philippines.
Presently, petitioners assert that the system certified as having been used in New
York was the Dominion Image Cast, a ballot marking device.
Petitioners have obviously inserted, at this stage of the case, an entirely new
factual dimension to their cause. This we cannot allow for compelling reasons.
11
For starters, the Court cannot plausibly validate this factual assertion of
petitioners. As it is, private respondents have even questioned the reliability of
the website24 whence petitioners base their assertion, albeit the former, citing
the same website, state that the Image Cast Precinct tabulation device refers to
the Dominions PCOS machines.

Moreover, as a matter of sound established practice, points of law, theories,

issues, and arguments not raised in the original proceedings cannot be brought
out on review. Basic considerations of fair play impel this rule. The imperatives
of orderly, if not speedy, justice frown on a piecemeal presentation of
evidence25 and on the practice of parties of going to trial haphazardly.26

Moving still to another issue, petitioners claim that "there are very strong
indications that Private Respondents will not be able to provide for
telecommunication facilities for areas without these facilities."27 This
argument, being again highly speculative, is without evidentiary value and
hardly provides a ground for the Court to nullify the automation contract.
Surely, a possible breach of a contractual stipulation is not a legal reason to
prematurely rescind, much less annul, the contract.1avvphi1

Finally, petitioners argue that, based on news reports, 28 the TIM-Smartmatic

joint venture has entered into a new contract with Quisdi, a Shanghai-based
company, to manufacture on its behalf the needed PCOS machines to fully
automate the 2010 elections.29 This arrangement, petitioners aver, violates the
bid rules proscribing sub-contracting of significant components of the
automation project.

The argument is untenable, based as it is again on news reports. Surely,

petitioners cannot expect the Court to act on unverified reports foisted on it.
And, of course, the Court is at a loss to understand how the sub-contract would,
in the scheme of things, constitute grave abuse of discretion on the part of
Comelec so as to nullify the contract award of the automation project. As
petitioners themselves acknowledge, again citing news reports, "Smartmatic
has unilaterally made the new subcontract to the Chinese
company."30 Petitioners admit too, albeit with qualification, that RA 9184
allows subcontracting of a portion of the automation project.31

The motion of intervenor Quadra deals with the auditability of the results of the
automated elections. His concern has already been addressed by the Court in its
Decision. As we have said, the AES procured by the Comelec is a paper-based
system, which has a provision for system auditability, since the voter would be
able, if needed, to verify if the PCOS machine has scanned, recorded, and
counted his vote properly. All actions done on the machine can be printed out
by the Board of Election Inspectors Chairperson as an audit log. 32

On the basis of the arguments, past and present, presented by the petitioners and
intervenor, the Court does not find any grave abuse of discretion on the part of
the Comelec in awarding the automation contract to the joint venture of private
respondents.

In closing, the Court harks back to its parting message embodied in its
September 10, 2009 Decision, but this time even more mindful of warnings and
apprehensions of well-meaning sectors of society, including some members of
the Court, about the possibility of failure of elections. The Court, to repeat, will
not venture to say that nothing could go wrong in the conduct of the 2010
nationwide automated elections. Neither will it guarantee, as it is not even
equipped with the necessary expertise to guarantee, the effectiveness of the
voting machines and the integrity of the counting and consolidation software
embedded in them. That difficult and complex undertaking belongs at the first
instance to the Comelec as part of its mandate to insure orderly and peaceful
elections. The Comelec, as it were, is laboring under a very tight timeline. It
would accordingly need the help of all advocates of orderly and honest
elections, all men and women of goodwill, to assist Comelec personnel in
addressing the fears expressed about the integrity of the system. After all,
peaceful, fair, honest, and credible elections is everyones concern.

WHEREFORE, the instant separate motions for reconsideration of the main and
intervening petitioners are DENIED.

SO ORDERED.

12
G.R. No. L-26065 May 3, 1968
GERONIMO B. ZALDIVAR, petitioner,
vs.
HON. NUMERIANO ESTENZO, Judge of the Court of First Instance of
Ormoc City, and SOTERO PEPITO,respondents.
Montalban-De Jesus and Associates for petitioner.
Francisco D. Abas for respondents.
FERNANDO, J.:
The specific question that confronts this Court in this petition
for certiorari with preliminary injunction, one that is novel and unique, is the
competence of a court of first instance to pass upon and entertain a special civil
action to prohibit municipal mayors, presumed to be partial to the candidacy of
a congressional candidate, from appointing special policemen, and agents with
the sole purpose, so it is alleged, to terrorize voters and thus frustrate the basic
objective of the Election Code, which is to assure the free and honest expression
of popular will. Respondent Judge, by no means free from suspicion of
sympathy for the other candidate, had no doubt about his power to act in the
premises. With unusual celerity and dispatch, he granted ex-parte the
preliminary injunction sought. This Court is of a different mind.
Such an assumption of jurisdiction, considering that the Commission on
Elections is by the Constitution vested with "exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections
...,"1 is at war with the plain constitutional command, the implementing
statutory provisions, and the hospitable scope afforded such grant of authority
so clear and unmistakable in recent decisions. Moreover, if respondent Judge
were of a similar persuasion, the tradition of impartiality so necessary and vital
to maintain unimpaired respect for the judiciary would have been upheld and
the doubts, whether well-founded or not, as to a court lending its prestige and
its authority to favor a congressional aspirant would not have arisen.
In the language of the petition, dated May 9, 1966, petitioner being Geronimo
Zaldivar and the principal respondent, Judge Numeriano Estenzo, of the Court
of First Instance of Ormoc City, it was filed "for the purpose of setting aside (a)
the decision dated April 28, 1966, rendered by the Honorable Judge Numeriano
Estenzo of the Court of First Instance of Leyte, 13th Judicial District, Fifth
Branch, Ormoc City, in Special Civil Case No. 753-0, entitled 'Luis Porcare and
Sotero Pepito, petitioners, versus Feliciano Larrazabal, in his official capacity
as Mayor of Kananga, Leyte, and Geronimo Zaldivar, in his official capacity as
Mayor of Albuera, Leyte, respondents;' (b) the order for the arrest of petitioner
issued in said case on the same date that the decision was promulgated; (c) the
warrant of arrest issued pursuant to said order; (d) the order issued in said case
dated November 5, 1965, granting the issuance of a writ of preliminary
injunction; and (e) the writ of preliminary injunction so issued on the same date,
on the ground that said decision, orders, warrant of arrest and writ of
preliminary injunction were issued by the trial court without jurisdiction."2
Petitioner was then the incumbent municipal mayor of Albuera, Leyte, named
respondent in the special civil case referred to, while the other respondent,
Sotero Pepito, was one of the petitioners in such case. The writ of preliminary
injunction prayed for was granted by this Court in a resolution of May 20, 1966,
which gave due course to the petition.
While the answer of respondent Judge Estenzo, dated June 15, 1966, contained
his own version of the facts, there is no question that a decision in favor of the
petitioner, now respondent, Pepito, and against the respondent, now petitioner
Zaldivar, in the above special civil action was rendered on April 28, 1966; 3
and ex-parte order for the issuance of a preliminary injunction and the writ itself
were issued on the same day the special civil action was filed;4 and the arrest of
petitioner immediately followed by a warrant of arrest were ordered by
respondent Judge.5
The decision assailed, as well as the challenged orders and actuations of
respondent Judge, was the direct consequence of his assumption of jurisdiction
over the special civil action of prohibition with preliminary injunction, filed in
his court by now respondent Sotero Pepito, one of the petitioners in that case,
along with a certain Luis Porcare. As already indicated, had there been more
hesitancy and doubt as to his competence resulting in more circumspection and
less eagerness to act on the matter, respondent Judge might have reached a
contrary conclusion as to the correctness of his assumption of jurisdiction. The
wording of the petition for prohibition with preliminary injunction, considering
the applicable law, ought to have warned and cautioned respondent Judge
against a determination that he could validly act on the premises.1vvphi1.nt
A recital of the contents of the petition will explain why. The petitioners, both
of whom were municipal councilors and, according to their petition, "local
leaders and supporters of the candidacy for reelection of Congressman
Dominador M. Tan, ...," alleged that now petitioner Zaldivar, therein named as
respondent, with the municipal mayor of another municipality, a certain
Feliciano Larrazabal, "acting in their official capacities as Municipal Mayors,
are known to be sympathetic to the candidacy of Rodolfo Rivilla, and with
grave abuse of discretion have caused to appoint special policemen and agents
to be paid from public funds and to be provided with uniforms and firearms for
the sole purpose of utilizing said special policemen and agents to terrorize and
arrest electors sympathetic to Congressman Dominador M. Tan during the
elections of November 9, 1965, in the aforesaid municipalities within the 4th
District of Leyte;...."6 It was the contention of petitioners that respondents, as
municipal mayors, acted "without and in excess of their powers as executives
of their respective jurisdictions, as no authority or sanction has been obtained
from the Executive Secretary and the Commission on Elections, and the
exercise of such powers would be detrimental to the interest of the electorate
which they are bound to protect."7 From which it was their conclusion that such
"consummation of the intended acts of respondents in their respective
jurisdiction would frustrate the will of the people to vote freely for the men of
their choice during the elections of November 9, 1965...."8 As noted earlier,
respondent Judge, based on such a petition, decided that he had jurisdiction and
saw to it that an order for the issuance ex-parte of the preliminary injunction
was handed down to be followed by the writ itself on November 5, 1965, the
very same day the action was filed.
It thus admits of no doubt that the grievance, if any, of respondent Pepito, as
one of the petitioners in that special civil action before respondent Judge, arose
from an alleged abuse of authority on the part of now petitioner, respondent
therein, Zaldivar, as municipal mayor, in appointing "special policemen and
agents" so that they could be utilized solely for the purpose of terrorizing and
arresting voters sympathetic to one of the congressional candidates and thus
frustrating "the will of the people to vote freely for the men of their choice" in
the election to be held on November 9, 1965. Nothing could be clearer then than
that such an alleged abuse of power was inextricably linked with the poll to be
held four days later. As noted in the petition, if successful, such a scheme would
be a denial of the right of the electorate to give free expression to their
convictions. It is indisputable, therefore, that on its face, the petition sought the
avoidance of acts that would be violative of the Election Code which is designed
primarily to assure that the right to vote on the part of each and every elector be
respected and safeguarded to the fullest extent.
Under the Constitution, the Commission on Elections has "exclusive charge of
the enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred upon it
by law."9 In the implementation of the above constitutional prerogative, the
Commission on Elections is vested under the Election Code with "direct and
immediate supervision over the provincial, municipal, and city officials
designated by law to perform duties relative to the conduct of elections."10 It
could even suspend "from the performance of said duties any of said officials
who shall fail to comply with its instructions, orders, decisions, or rulings and
appoint their temporary substitutes and, upon recommendation of the
Commission, the President of the Philippines may remove any or all such
officials who shall be found guilty of non-feasance, malfeasance, or
misfeasance in connection with the performance of their duties relative to the
conduct of elections."11
In the special civil action for prohibition before respondent Judge, its essentially
political character is manifest, the main allegation being the alleged utilization
of the power of petitioner Zaldivar, as municipal mayor, named respondent
therein, to avail himself of the authority of his office to appoint special
policemen or agents to terrorize voters so that they would support the
congressional candidate of his choice. Both under the Constitution and the
Revised Election Code, it is not so much the power, but the duty of the
Commission on Elections to exercise supervision over municipal officials
precisely to enforce the Election Code. No other agency is better suited to
preclude abuse of authority on the part of local officials, the sanction being that
13
it could recommend to the President their removal if found guilty of "non-
feasance, malfeasance or misfeasance in connection with the performance of
their duties relative to the conduct of elections."12
Moreover, this Court, from the creation of the Commission on Elections, has
accorded full amplitude to the wide discretion vested in the Commission on
Elections in the performance of its constitutional functions. As early as 1941
in Sumulong v. Commission on Elections,13 full recognition and awareness of
the crucial role to be played by the Commission in the conduct of elections was
evident, the language employed in the opinion of the then Justice Abad Santos
being quite explicit. Thus: "The Commission on Elections is a constitutional
body. It is intended to play a distinct and important part in our scheme of
government. In the discharge of its functions, it should not be hampered with
restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be
allowed considerable latitude in devising means and methods that will insure
the accomplishment of the great objective for which it was created free,
orderly and honest elections. We may not agree fully with its choice of means,
but unless these are clearly illegal or constitute gross abuse of discretion, this
court should not interfere. Politics is a practical matter, and political questions
must be dealt with realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its contacts with
political strategists, and its knowledge derived from actual experience in
dealing with political controversies, is in a peculiarly advantageous position to
decide complex political questions."
So it has continued up to the present. To speak of more recent cases, there was
stress laid in Lucas v. Cauton14 on its "constitutional duty of administering and
enforcing the laws relative to the conduct of elections with a view to promoting
clean and honest elections the very purpose for which the Commission on
Elections was created by constitutional mandate." As was emphatically
observed by Justice Zaldivar, speaking for the Court: "It would indeed be
absurd to say that the Commission on Elections has a legal duty to perform and
at the same time it is denied the necessary means to perform said duty." The
same trend is evident in three decisions of this Court in December, 1967: Espino
v. Zaldivar,15 Demafiles v. Commission on Elections,16 and Estrada vs.
Navarro,17 and one in January, 1968, Ong v. Commission on Elections.18
in the impartiality of the judiciary be preserved unimpaired. Whenever,
therefore, the fear may be plausibly entertained that an assumption of
jurisdiction would lead to a lessening of the undiminished trust that should be
reposed in the courts in the absence of authority discernible from the wording
of applicable statutory provisions and the trend of judicial decisions, even if no
constitutional mandate as that present in this case could be relied upon, there
should be no hesitancy in declining to act.
One last point. The norm expected of a judge, expressed in language both lucid
and forceful by Justice Dizon, bears restoration: "It has been said, in fact, that
due process of law requires a hearing before an impartial and disinterested
tribunal, and that every litigant is entitled to nothing less than the cold neutrality
of an impartial judge.... Moreover, second only to the duty of rendering a just
decision, is the duty of doing it in a manner that will not arouse any suspicion
as to its fairness and the integrity of the Judge."21 It is difficult enough to attain
the ideal of a presiding judge being "wholly free, disinterested, impartial and
independent," as was noted in the Gutierrez decision. It becomes doubly
difficult for such qualities to be in evidence whenever the matter before him is
so enmeshed and so intertwined with partisan considerations that even if he
could justly lay claim to such attributes, he still would be susceptible to the
suspicion, by whichever group may feel that its just claim is rejected, that he
acted not in accordance with the cold dictates of reason, but with the promptings
and urgings of his sympathy and predilections in whatever direction they may
lie. To repeat, the conclusion reached as to the lack of jurisdiction of the courts
of first instance in litigations of this character would go far in fortifying and
bolstering the belief in the reality of a truly independent judiciary, free from
partisanship and aloof from politics.
WHEREFORE, the writ for certiorari prayed for is granted; the decision
rendered by respondent Judge on April 28, 1966, in Special Civil Case No. 753-
0 in his sala, the order for the arrest of petitioner, the warrant of arrest, the order
dated November 5, 1966, granting the issuance of a writ of preliminary
injunction, and the writ of preliminary injunction so issued on the same date set
aside, and the preliminary injunction issued by this Court dated May 26, 1966
made permanent. No special pronouncement as to costs.

The question may be asked: Why should not the judiciary be a co-participant in
this particular instance of enforcing the Election Code as its authority was
invoked? The obvious answer is the literal language of the Constitution which
empowers the Commission on Elections to "have exclusive charge of the
enforcement and administration of all laws relative to the conduct of the
elections." Moreover, as was so aptly observed by the then Justice Frankfurter,
although the situation confronting the United States Supreme Court was of a
different character: "Nothing is clearer than that this controversy concerns
matters that bring courts into immediate and active relations with party contests.
From the determination of such issues this Court has traditionally held aloof. It
is hostile to a democratic system to involve the judiciary in the politics of the
people. And it is not less pernicious if such judicial intervention in an essentially
political contest be dressed up in the abstract phrases of the law."19 Then, too,
reference by analogy may be made to the principle that sustains Albano v.
Arranz. For even without the express constitutional prescription that only this
Court may review the decisions, orders and rulings of the Commission on
Elections, it is easy to understand why no interference whatsoever with the
performance of the Commission on Elections of its functions should be allowed
unless emanating from this Court. The observation of Acting Chief Justice
J.B.L. Reyes in Albano v. Arranz,20 while not precisely in point, indicates the
proper approach. Thus: "It is easy to realize the chaos that would ensue if the
Court of First Instance of each and every province were to arrogate unto itself
the power to disregard, suspend, or contradict any order of the Commission on
Elections; that constitutional body would be speedily reduced to impotence."

This conclusion finds support from a consideration of weight and influence.

What happened in this case could be repeated elsewhere. It is not improbable
that courts of first instance would be resorted to by leaders of candidates or
political factions entertaining the belief whether rightly or wrongly that local
officials would employ all the power at their command to assure the victory of
their candidates. Even if greater care and circumspection, than did exist in this
case, would be employed by judges thus appealed to, it is not unlikely that the
shadow of suspicion as to alleged partisanship would fall on their actuations,
whichever way the matter before them is decided. It is imperative that the faith

14
G.R. No. 159139 June 15, 2005
INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO
H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL
HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., Petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN
BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD
COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS
GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC
eSOLUTIONS, INC.; and MEGA PACIFIC
CONSORTIUM, Respondents.
RESOLUTION
PANGANIBAN, J.:
Our Decision1 in the present case voided the Contract entered into by the
Commission on Elections (Comelec) for the supply of automated counting
machines (ACMs) because of "clear violation of law and jurisprudence" and
"reckless disregard of [Comelecs] own bidding rules and procedure."
Moreover, "Comelec awarded this billion-dollar undertaking with inexplicable
haste, without adequately checking and observing mandatory financial,
technical and legal requirements. x x x. The illegal, imprudent and hasty actions
of the Commission have not only desecrated legal and jurisprudential norms,
but have also cast serious doubts upon the poll bodys ability and capacity to
conduct automated elections." As a result, the ACMs illegally procured and
improvidently paid for by Comelec were not used during the 2004 national
elections.
In its present Motion, the poll body expressly admits that the Decision "has
become final and executory," and that "COMELEC and MPC-MPEI are under
obligation to make mutual restitution." Otherwise stated, this admission implies
that the ACMs are to be returned to MPC-MPEI, and that the sum of over one
billion pesos illegally paid for them be refunded to the public purse. 2 In short,
ownership of the ACMs never left MPC-MPEI and the money paid for them
still belongs, and must be returned, to the government.
Consequently, the ACMs, which "admittedly failed to pass legally mandated
technical requirements" cannot be used during the forthcoming elections in the
Autonomous Region for Muslim Mindanao (ARMM). Apart from formidable
legal, jurisprudential, technical and financial obstacles, the use of the machines
would expose the ARMM elections to the same electoral pitfalls and frauds
pointed out in our Decision. If the ACMs were not good enough for the 2004
national elections, why should they be good enough now for the 2005 ARMM
elections, considering that nothing has been done by Comelec to correct the
legal, jurisprudential and technical flaws underscored in our final and executory
Decision?
The Motion
Before us is the Commission on Elections "Most Respectful Motion for Leave
to Use the Automated Counting Machines in [the] Custody of the Commission
on Elections for use (sic) in the August 8, 2005 Elections in the Autonomous
Region for Muslim Mindanao (ARMM)," dated December 9, 2004. In its
January 18, 2005 Resolution, the Court required the parties to comment. After
careful deliberation on all pleadings at hand, we now resolve the Motion.
Background Information
At the outset, we stress that the Decision in the present case, promulgated on
January 13, 2004, has long attained finality.3 In our February 17, 2004
Resolution, we denied with finality Comelecs Motion for Reconsideration
dated January 28, 2004, as well as private respondents Omnibus Motion dated
January 26, 2004. The Decision was recorded in the Book of Entries of
Judgments on March 30, 2004.
Recall that our Decision declared Comelec to have acted with grave abuse of
discretion when, by way of its Resolution No. 6074, it awarded the Contract for
the supply of automated counting machines (ACMs) to private respondents. It
did so, not only in clear violation of law and jurisprudence, but also with
inexplicable haste and reckless disregard of its own bidding rules and
procedures; particularly the mandatory financial, technical and legal
requirements. It further manifested such grave abuse of discretion when it
accepted the subject computer hardware and software even though, at the time
of the award, these had patently failed to pass eight critical requirements
designed to safeguard the integrity of the elections. Consequently, this Court
was constrained to exercise its constitutional duty by voiding the assailed
Resolution No. 6074 awarding the Contract to Mega Pacific Consortium, as
well as the subject Contract itself executed between Comelec and Mega Pacific
eSolutions, Inc.
Comelec was further ordered to refrain from implementing any other contract
or agreement it had entered into with regard to the said project. We also declared
that, as a necessary consequence of such nullity and illegality, the purchase of
the ACMs and the software, along with all payments made for them, had no
basis in law. Hence, the public funds spent must be recovered from the payees
and/or the persons who made the illegal disbursements possible, without
prejudice to possible criminal prosecutions against them.4
Likewise, our February 17, 2004 Resolution denying reconsideration found
movants to have raised the same procedural and substantive issues already
exhaustively discussed and definitively passed upon in our Decision. In that
Resolution, we emphasized (and we reiterate here) that the Decision did not
prohibit automation of the elections. Neither did the Court say that it was
opposed to such project (or the use of ACMs) as a general proposition. We
repeated our explanation that the reason for voiding the assailed Resolution and
the subject Contract was the grave abuse of discretion on the part of Comelec;
as well as its violations of law -- specifically RA 9184, RA 8436, and RA 6955
as amended by RA 7718; prevailing jurisprudence (the latest of which
was Agan v. Philippine International Air Terminals Co., Inc.5); and the bidding
rules and policies of the Commission itself.
Comelecs Claims
Notwithstanding our Decision and Resolution, the present Motion claims, inter
alia, that the ARMM elections are slated to be held on August 8, 2005, and are
mandated by RA 9333 to be automated; that the government has no available
funds to finance the automation of those elections; that considering its present
fiscal difficulties, obtaining a special appropriation for the purpose is unlikely;
that, on the other hand, there are in Comelecs custody at present 1,991 ACMs,
which were previously delivered by private respondents; that these machines
would deteriorate and become obsolete if they remain idle and unused; that they
are now being stored in the Comelec Maxilite Warehouse along UN Avenue, at
"storage expenses of P329,355.26 a month, or P3,979,460.24 annually."
The Motion further alleges that "information technology experts," who
purportedly supervised all stages of the software development for the creation
of the final version to be used in the ACMs, have unanimously confirmed that
this undertaking is in line with the internationally accepted standards (ISO/IEC
12207) for software life cycle processes, "with its quality assurance that it
would be fit for use in the elections x x x."
Comelec also points out that the process of "enhancement" of the counting and
canvassing software has to be commenced at least six (6) months prior to the
August 8, 2005 ARMM elections, in order to be ready by then. It asserts that its
Motion is (a) without prejudice to the ongoing Civil Case No. 04-346 pending
before the Regional Trial Court of Makati City, Branch 59, entitled "Mega
Pacific eSolutions, Inc. v. Republic of the Philippines (represented by the
Commission on Elections)," for the collection of a purported P200 million
balance due from Comelec under the voided Contract; and (b) with a continuing
respectful recognition of the finality and legal effects of our aforesaid Decision.
At bottom, Comelec prays that it be granted leave to use the ACMs in its
custody during the said ARMM elections.
Private Respondents Contentions
Commenting on the present Motion, private respondents take the position that,
since the subject ACMs have already been delivered to, paid for and used by
Comelec, the Republic of the Philippines is now their owner, without prejudice
to Mega Pacific eSolutions, Inc.s claim for damages in the case pending before
the RTC of Makati; and that, consequently, as far as private respondents are
concerned, the question of using the subject ACMs for the ARMM elections is
dependent solely on the discretion of the owner, the Republic of the Philippines.
15
Petitioners Comment
On the other hand, petitioners contend that Comelec is asking this Court to
render an advisory opinion, in contravention of the constitutional
provision6 that explicitly states that the exercise of judicial power is confined to
(1) settling actual controversies involving rights that are legally demandable
and enforceable; and (2) determining whether there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government.
Petitioners assert that there is no longer any live case or controversy to speak
of -- an existing case or controversy that is appropriate or ripe for determination,
not merely conjectural or anticipatory; and that Comelecs allegations in its
Motion do not amount to an actual case or controversy that would require this
Court to render a decision or resolution in the legitimate exercise of its judicial
power. This lack of actual controversy is clearly seen in the relief prayed for in
the Motion: the grant of a leave to use the ACMs during the ARMM elections.
Obviously, Comelec merely seeks an advisory opinion from this Court on
whether its proposal to use the ACMs during the said elections might be in
violation of this Courts Decision dated January 13, 2004, and Resolution dated
February 17, 2004.
Assuming arguendo that the present Motion might somehow be justified by the
governments fiscal difficulties, petitioners further argue that permitting
Comelec to use the ACMs would nevertheless allow it to do indirectly what it
was not permitted by this Court to do directly. They argue that the instant
Motion is merely a subterfuge on the poll bodys part to resurrect a lost case via
a request for an advisory opinion.
The OSGs Comment
The Office of the Solicitor General (OSG) declares in its Comment that, in
compliance with this Courts directive for it to "take measures to protect the
government and vindicate public interest from the ill effects of the illegal
disbursements of public funds made by reason of the void [Comelec]
Resolution and Contract," it filed on behalf of the Republic on July 7, 2004, an
Answer with Counterclaim in Civil Case No. 04-346. The OSG prayed for the
return of all payments made by Comelec to Mega Pacific under the void
Contract, amounting to P1,048,828,407.
The OSG also manifests that it received a copy of the Complaint-Affidavit
dated September 15, 2004, filed with the Office of the Ombudsman by the
Bantay Katarungan Foundation and the Kilosbayan Foundation against the
Comelec commissioners who had awarded the Contract for the ACMs; and the
private individuals involved, including the incorporators and officers of Mega
Pacific eSolutions, Inc. This Complaint-Affidavit was for violation of the Anti-
Plunder Law (RA 7030), the Anti-Graft and Corrupt Practices Act (RA 3019 as
amended), and the Code of Conduct and Ethical Standards for Public Officials
and Employees (RA 6713).
The complainants alleged immense kickbacks and horrendous overpricing
involved in the purchase of the 1,991 ACMs. Based on the OSGs available
records, it appears that Comelec withdrew from Land Bank P1.03 billion, but
actually paid Mega Pacific only P550.81 million. Furthermore, commercial
invoices and bank applications for documentary credits reveal that each ACM
cost only P276,650.00, but that Comelec agreed to pay Mega
Pacific P430,394.17 per unit -- or a differential of P153,744.17 per unit or an
aggregate differential of P306.10 million. Moreover, Mega Pacific
charged P83.924 million for value-added taxes (VAT) and P81.024 million
more for customs duties and brokerage fees, when in fact -- under the nullified
Contract -- it was supposed to be exempt from VAT, customs duties and
brokerage fees. Lastly, Comelec agreed to peg the ACM price at the exchange
rate of P58 to $1, when the exchange rate was P55 to $1 at the time of the
bidding, resulting in additional losses for the government amounting to
about P30 million.
The OSG hews to the view that the automation of elections, if properly carried
out, is a desirable objective, but is mindful of the need for mutual restitution by
the parties as a result of the final Decision nullifying the Contract for the ACMs.
Nevertheless, in apparent response to Comelecs clamor to use the ACMs in the
ARMM elections, the OSG manifests that it has no objection to the proposal to
use the machines, provided however that (1) Comelec should show with
reasonable certainty that the hardware and software of the ACMs can be
effectively used for the intended purpose; (2) Mega Pacific should be made to
return to the Republic at least a substantial portion of the overprice they charged
for the purchase of the ACMs; and (3) the use of these machines, if authorized
by this Court, should be without prejudice to the prosecution of the related
criminal cases pending before the Office of the Ombudsman (OMB).
The OMBs Manifestation
For its part, the Office of the Ombudsman manifested that as a result of the
nullification of the Contract, various fact-finding investigations had been
conducted, and criminal and administrative charges filed before it against the
persons who appeared to be responsible for the anomalous Contract; and that
the various cases had been consolidated, and preliminary investigation
conducted in respect of the non-impeachable Comelec officials and co-
conspirators/private individuals. Furthermore, the OMB is in the process of
determining whether a verified impeachment complaint may be filed against
the poll bodys impeachable officials concerned.
A Supplemental Complaint prepared and filed by the Field Investigation Office
of the Ombudsman reveals that the ACMs were overpriced by
about P162,000.00 per unit; that, additionally, Mega Pacific unduly benefited
by including VAT and import duties amounting to P194.60 million in its bid
price for the ACMs, despite Section 8 of RA 8436 exempting such equipment
from taxes and duties; that Comelec nonetheless awarded the Contract to Mega
Pacific at the same bid price of P1.249 billion, inclusive of VAT, import duties
and so on; and that the Commission allowed Mega Pacific to peg the ACM price
using an exchange rate of P58 to $1 instead of P53 to $1, which further inflated
Mega Pacifics windfall.
The foregoing notwithstanding, the OMB had allegedly prepared a comment on
the present Motion, stating its position on the issue of utilizing the ACMs, but
upon further reflection decided not to file that comment. It came to the
conclusion that ventilating its position on the matter might engender certain
impressions that it had already resolved factual and/or legal issues closely
intertwined with the elements of the offenses charged in the criminal and
administrative cases pending before it. "For one, utilizing illegally procured
goods or the intentional non-return thereof to the supplier may have a bearing
on the determination of evident bad faith or manifest partiality, an essential
element in any prosecution under the anti-graft law, and may, at the same time,
be constitutive of misconduct penalized under relevant disciplinary laws."
Consequently, out of prudential considerations, the OMB prayed to be excused
from commenting on the merits of the present Motion, to avoid any perception
of prejudgment, bias or partiality on its part, in connection with the criminal
and administrative cases pending before it.
The Courts Ruling
Decision Subverted by the Motion
There are several reasons why the present Motion must be
denied. First, although it professes utmost respect for the finality of our
Decision of January 13, 2004 -- an inescapable and immutable fact from which
spring equally ineludible consequences -- granting it would have the effect of
illegally reversing and subverting our final Decision. Plainly stated, our
final Decision bars the grant of the present Motion.
To stress, as a direct result of our January 13, 2004 Decision, the Contract for
the supply of the subject ACMs was voided, and the machines were not used in
the 2004 national elections. Furthermore, the OSG was directed "to take
measures to protect the government and vindicate public interest from the ill-
effects of the illegal disbursements of public funds made by reason of the void
Resolution." Accordingly, in Civil Case No. 04-346, the government counsel
has prayed for mutual restitution; and for the "return of all payments, amounting
to P1,048,828,407.00 made by Comelec to Mega Pacific under the void
Contract."
In the meantime, Comelec has done nothing -- at least, nothing has been
reported in the present Motion -- to abide by and enforce our Decision.
Apparently, it has not done anything to rectify its violations of laws,
jurisprudence and its own bidding rules referred to in our judgment. Neither has
it reported any attempt to correct and observe the "mandatory financial,
technical and legal requirements" needed to computerize the elections.
16
Apparently, it has simply filed the present Motion asking permission to do what
it has precisely been prohibited from doing under our final and executory
Decision. If law and jurisprudence bar it from using the subject ACMs during
the last elections, why should it even propose to use these machines in the
forthcoming ARMM elections? True, these elections are important. But they
cannot be more important than the 2004 national elections. Note that the factual
premises and the laws involved in the procurement and use of the ACMs have
not changed. Indeed, Comelec has not even alleged, much less proven, any
supervening factual or legal circumstances to justify its Motion.
Basic and primordial is the rule that when a final judgment becomes executory,
it thereby becomes immutable and unalterable. In other words, such a
judgment may no longer undergo any modification, much less any reversal,
even if it is meant to correct what is perceived to be an erroneous conclusion of
fact or law; and even if it is attempted by the court rendering it or by this
Court.7 Equally well-entrenched is the doctrine that what is not permitted to be
done directly may not be done indirectly either. In the instant case, it is
unarguable that the inexorable result of granting the present Motion will
precisely be a subversion of the Decision, or at least a modification that would
render the latter totally ineffective and nugatory.
To support its present Motion, Comelec appended as Annex 1 a letter dated
January 22, 2004. Addressed to its chairman, the Annex was signed by
four8 self-proclaimed "information technology experts,"9 who had gratuitously
contended that this Courts Decision was "one of the most inopportune rulings
ever to come out of the hallowed halls of that High Tribunal"; blame the
Decision for supposedly forcing our people "to entrust their votes to a manual
system of counting and canvassing that have been proven to be prone to massive
fraud in the past"; and mouth legal/technical arguments that have already been
repeatedly debunked in the Decision and Resolution here. The letter also
included a long-winded, tortuous discussion of the software development life
cycle.
A quick check of the case records confirmed our suspicion. The very same letter
dated January 22, 2004 had previously been appended as Annex 2 to private
respondents "Omnibus Motion A) for reconsideration of the Decision dated 13
January 2004; b) to admit exhibits in refutation of the findings of fact of the
Court; c) to have the case set for hearing and/or reception of evidence if deemed
necessary by the Court." The only difference is that this time around, Comelec
overlooked or failed to photocopy the last page (page 17) of the letter, bearing
the signatures of the four other purported "information technology experts."10 In
other words, to support its present Motion, it merely recycled an earlier exhibit
that had already been used in seeking reconsideration of our aforesaid Decision.
While expressing utmost reverence for the finality of the Decision, Comelec
implicitly seeks, nevertheless, to have this Court take up anew matters that have
already been passed upon and disposed of with finality.
It is a hornbook doctrine that courts are presumed to have passed upon all points
that were raised by the parties in their various pleadings, and that form part of
the records of the case. Our Resolution, disposing of respondents arguments
on reconsideration, did not explicitly and specifically address all of the matters
raised in the said letter of January 22, 2004. It is presumed however, that all
matters within an issue raised in a case were passed upon by the Court, 11 as
indeed they were in the instant case. And as we have held elsewhere, 12 courts
will refuse to reopen what has been decided; they will not allow the same parties
or their privies to litigate anew a question that has been considered and decided
with finality.
Besides, the letter of January 22, 2004, laden as it is with technical jargon and
impressive concepts, does not serve to alter by even the minutest degree our
finding of grave abuse of discretion by Comelec, on account of its clear
violations of law and jurisprudence and its unjustifiable and reckless disregard
of its own bidding rules and procedures.
Furthermore, the letter would obviously not contain anything that might serve
to persuade us that the situation obtaining in January 2004 has so changed in
the interim as to justify the use of the ACMs in August 2005.
The Commission seems to think that it can resurrect the dead case by waving at
this Court a letter replete with technical jargon, much like a witch doctor
muttering unintelligible incantations to revive a corpse.
In its main text, the Motion concedes that our Decision "has become final and
executory," and that all that remains to be done is "to make mutual
restitution."13 So, what is the relevance of all these useless argumentations and
pontifications in Annex 1 by the Commissions self-proclaimed "experts"? For
its own illegal acts, imprudence and grave abuse of discretion, why blame this
Court? For Comelec to know immediately which culprit should bear full
responsibility for its miserable failure to automate our elections, it should
simply face the mirror.
Recovery of Government Funds Barred by the Motion
Second, the grant of the Motion will bar or jeopardize the recovery of
government funds improvidently paid to private respondents, funds that to date
the OSG estimates to be over one billion pesos. At the very least, granting the
Motion will be antagonistic to the directive in our Decision for the OSG to
recover the "illegal disbursements of public funds made by reason of the void
Resolution and Contract."
Indeed, if the government is conned into not returning the ACMs but instead
keeping and utilizing them, there would be no need for Mega Pacific to refund
the payments made by Comelec. In fact, such recovery will no longer be
possible. Consequently, all those who stood to benefit (or have already
benefited) financially from the deal would no longer be liable for the refund.
They can argue that there was nothing wrong with the voided Resolution and
Contract, nothing wrong with the public bidding, nothing wrong with the
machines and software, since the government has decided to keep and utilize
them. This argument can be stretched to abate the criminal prosecutions
pending before the OMB and the impeachment proceedings it is considering.
After all, "reasonable doubt" is all that is needed to secure acquittal in a criminal
prosecution.
In brief, the poll bodys Motion not only asks for what is legally impossible to
do (to reverse and subvert a final and executory Decision of the highest court
of the land), but also prevents the Filipino people from recovering illegally
disbursed public funds running into billions of pesos. Verily, by subverting the
Decision of this Court, the Motion would be unduly favoring and granting
virtual immunity from criminal prosecution to the parties responsible for the
illegal disbursement of scarce public funds.
Use of the ACMs and Software Detrimental to ARMM Elections
Third, the use of the unreliable ACMs and the nonexistent software that is
supposed to run them will expose the ARMM elections to the same electoral
ills pointed out in our final and executory Decision. Be it remembered that this
Court expressly ruled that the proffered hardware and software had undeniably
failed to pass eight critical requirements designed to safeguard the integrity of
elections, especially the following three items:
" They failed to achieve the accuracy rating criterion of 99.9995 percent set up
by the Comelec itself.
" They were not able to detect previously downloaded results at various
canvassing or consolidation levels and to prevent these from being inputted
again.
" They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data."14
The Motion has not at all demonstrated that these technical requirements have
been addressed from the time our Decision was issued up to now. In fact,
Comelec is merely asking for leave to use the machines, without mentioning
any specific manner in which the foregoing requirements have been
satisfactorily met.
Equally important, we stressed in our Decision that "[n]othing was said or done
about the software -- the deficiencies as to detection and prevention of
downloading and entering previously downloaded data, as well as the capability
to print an audit trail. No matter how many times the machines were tested and
retested, if nothing was done about the programming defects and deficiencies,
the same danger of massive electoral fraud remains."15
Other than vaguely claiming that its four so-called "experts" have "unanimously
confirmed that the software development which the Comelec undertook, [was]
in line with the internationally accepted standards (ISO/IEC 12207) [for]
17
software life cycle processes," the present Motion has not shown that the
alleged "software development" was indeed extant and capable of addressing
the "programming defects and deficiencies" pointed out by this Court.
At bottom, the proposed use of the ACMs would subject the ARMM elections
to the same dangers of massive electoral fraud that would have been inflicted
by the projected automation of the 2004 national elections.
Motion Inadequate and Vague
Fourth, assuming arguendo that the foregoing
formidable legal, financial and technical obstacles could be overcome or set
aside, still, the Motion cannot be granted because it is vague; it does not contain
enough details to enable this Court to act appropriately.
The sham nature of the Motion is evident from the following considerations.
While Comelec asserts a pressing need for the ACMs to be used in the ARMM
elections, strangely enough, it has not bothered to determine the number of units
that will be required for the purpose, much less tried to justify such
quantification. It contracted for a total of 1,991 ACMs, intended for
use throughout the entire country during the 2004 elections. Are we to believe
that all 1,991 units would be utilized to count and canvass the votes cast in the
ARMM elections? Such a scenario is highly unlikely, even ridiculous.
A genuine, bona fide proposal for the utilization of the ACMs would naturally
have included a well-thought-out plan of action, indicating the number of units
to be deployed, places of utilization, number of operators and other personnel
required, methods/periods of deployment and recovery or retrieval, assessments
of costs and risks involved in implementing the proposal, and concomitant
justifications, among other things. Now, either "The Plan" is being kept
absolutely top secret, or it is completely nonexistent.
Furthermore, once the ACMs are deployed and utilized, they will no longer be
in the same condition as when they were first delivered to Comelec. In fact, it
is quite probable that by the time election day comes around, some of the
machines would have been mishandled and damaged, maybe even beyond
repair. What steps has the poll body taken to make certain that such
eventualities, if not altogether preventable, can at least be minimized so as to
ensure the eventual return of the ACMs and the full recovery of the payments
made for them? A scrutiny of the 4-page Motion16 ends in futility. It is all too
clear that a failure or inability of Comelec to return the machines sans damage
would most assuredly be cited as a ground to refuse the refund of the moneys
paid. Yet, if Comelec has given any thought at all to this or any other
contingency, such fact has certainly not been made evident to us.
ARMM Elections Not Jeopardized by Nonuse of ACMs
Fifth, there is no basis for the claim that unless the subject ACMs are used, the
ARMM elections would not be held.
At the outset, if such elections are not held, the blame must be laid squarely at
the doorstep of Comelec. To stress, had it not gravely abused its discretion, the
automation of the vote counting and canvassing processes would have already
become a reality over a year ago, and the ACMs that would have been used in
the 2004 national elections would now be available for the ARMM elections.
In any event, the Commission in its Motion argues that the government, given
its present fiscal difficulties, has no available funds to finance the automation
of the ARMM elections. Without even asking under what authority it has
assumed the role of Treasury spokesman, we emphasize that there would not
now be any lack of funds for election automation had it not improvidently
turned over P1 billion of taxpayers moneys to Mega Pacifics bank accounts.
Nevertheless, had the poll body been honestly and genuinely intent on
implementing automated counting and canvassing for the ARMM elections, it
ought to have informed Congress of the non-availability of the subject ACMs
due to our Decisions and of the need for special appropriations, instead of
wasting this Courts time on its unmeritorious Motion. In fact, if only it had
taken proper heed of our Decision of January 13, 2004, it could have conducted
an above-board public bidding for the supply of acceptable ACMs.
Certainly, this option or course of action was not foreclosed by our Decision.
Moreover, there was sufficient time within which to conduct the public bidding
process. RA 9333, which set the second Monday of August 2005 (August 8,
2005) as the date of the ARMM elections, was enacted on September 21, 2004.
Undoubtedly, Comelec was made aware of the proposed date of the ARMM
elections way before the passage of RA 9333. Thus, the poll body had about ten
(10) months at the very least (between the end of September 2004, when RA
9333 came into force and effect, and August 8, 2005) to lobby Congress,
properly conduct a public bidding, award the appropriate contracts, deliver and
test the new machines, and make final preparations for the election.
Even assuming that a new public bidding for ACMs was not a viable option,
still, Comelec has had more than sufficient lead time -- about ten months
counted from the end of September 2004 until August 8, 2005 -- to prepare
for manual counting and canvassing in the ARMM elections. It publicly
declared, sometime in late January 2004, that notwithstanding our Decision
nullifying the Mega Pacific Contract, it would still be able to implement such
manualization for the May 10, 2004 national elections. It made this declaration
even though it had a mere three months or so to set up the mechanics. In this
present instance involving elections on a much smaller scale, it will definitely
be able to implement manual processes if it wants to.
There is therefore absolutely no basis for any apprehension that the ARMM
elections would not push through simply because the present Motion cannot
pass muster. More to the point, it would be ridiculous to regard the grant of
permission to use the subject ACMs as the conditio sine qua non for the holding
of the ARMM elections.
What is most odious is the resort to the present Motion seeking the use of the
subject ACMs despite the availability of viable alternative courses of
action17 that will not tend to disturb or render this Courts final Decision
ineffectual. Thus, the present Motion is wholly unnecessary and
unwarranted. Upon it, however has Comelec pinned all its hopes, instead of
focusing on what the poll body can and ought to do under the circumstances.
The consequences of granting its lamentable Motion, we repeat, will
indubitably subvert and thwart the Decision of this Court in the instant case.
Equally reprehensible is the attempt of the Commission to pass the onus of its
mismanagement problems on to this Court. For instance, the Motion quotes the
cost of storage of the ACMs in its Maxilite Warehouse at P329,355.26 per
month or P3,979,460.24 per annum. Assuming for the nonce that the machines
have to be held in storage pending the decision in the civil case (as it would
simply not do to throw the machines out into the streets), why must it assume
the cost of storage? Per our Decision, the machines are to be returned to Mega
Pacific. If it refuses to accept them back, it does not follow that Comelec must
pick up the tab. Instead of further wasting the taxpayers money, it can simply
send the bill to Mega Pacific for collection.
It would be entirely improper, bordering on unmitigated contempt of court, for
the Commission to try to pass on the problem to this Court through its Motion.
No Actual Case or Controversy
Finally, the Motion presents no actual justiciable case or controversy over
which this Court can exercise its judicial authority. It is well-established in this
jurisdiction that "x x x for a court to exercise its power of adjudication, there
must be an actual case or controversy -- one which involves a conflict of legal
rights, an assertion of opposite legal claims susceptible of judicial resolution;
the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. x x x [C]ourts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging."18 The controversy must be justiciable -- definite and
concrete, touching on the legal relations of parties having adverse legal
interests.19 In other words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial thereof on the other; that
is, it must concern a real and not a merely theoretical question or issue.20 There
ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts. 21
A perusal of the present Motion will readily reveal the utter absence of a live
case before us, involving a clash of legal rights or opposing legal claims. At
best, it is merely a request for an advisory opinion, which this Court has no
jurisdiction to grant.22
EPILOGUE
18
We close this Resolution by repeating the last two paragraphs of our final and
executory Decision:

"True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must first have a diligent and competent
electoral agency that can properly and prudently implement a well-conceived
automated election system.

"At bottom, before the country can hope to have a speedy and fraud-free
automated election, it must first be able to procure the proper computerized
hardware and software legally, based on a transparent and valid system of
public bidding. As in any democratic system, the ultimate goal of automating
elections must be achieved by a legal, valid and above-board process of
acquiring the necessary tools and skills therefor. Though the Philippines needs
an automated electoral process, it cannot accept just any system shoved into its
bosom through improper and illegal methods. As the saying goes, the end never
justifies the means. Penumbral contracting will not produce enlightened
results."23

Comelec must follow and not skirt our Decision. Neither may it short-circuit
our laws and jurisprudence. It should return the ACMs to MPC-MPEI and
recover the improvidently disbursed funds. Instead of blaming this Court for its
illegal actions and grave abuse of discretion, the Commission should, for a
change, devise a legally and technically sound plan to computerize our elections
and show our people that it is capable of managing the transition from an
archaic to a modern electoral system.

WHEREFORE, the Motion is hereby DENIED for utter lack of merit.

SO ORDERED.

19
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.
DECISION
CALLEJO, SR., J.:
Before us is the petition for certiorari and prohibition under Rule 65 of the Rules
of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to
nullify, for having been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved
by the Commission on Elections
(COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE
ELECTRONIC TRANSMISSION AND CONSOLIDATION OF
ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS. 1 The
petitioner, likewise, prays for the issuance of a temporary restraining order and,
after due proceedings, a writ of prohibition to permanently enjoin the
respondent COMELEC from enforcing and implementing the questioned
resolution.
After due deliberation, the Court resolved to require the respondent to comment
on the petition and to require the parties to observe the status quo prevailing
before the issuance by the COMELEC of the assailed resolution. The parties
were heard on oral arguments on May 8, 2004. The respondent COMELEC was
allowed during the hearing to make a presentation of the Electronic
Transmission, Consolidation and Dissemination (PHASE III) program of the
COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System,
Inc. (PMSI).
The Court, thereafter, resolved to maintain the status quo order issued on May
6, 2004 and expanded it to cover any and all other issuances related to the
implementation of the so-called election quick count project. In compliance
with the resolution of the Court, the respondent, the petitioner and the
petitioners-in-intervention submitted the documents required of them.
The Antecedents
On December 22, 1997, Congress enacted Republic Act No. 8436 2 authorizing
the COMELEC to use an automated election system (AES) for the process of
voting, counting of votes and canvassing/consolidating the results of the
national and local elections. It also mandated the COMELEC to acquire
automated counting machines (ACMs), computer equipment, devices and
materials; and to adopt new electoral forms and printing materials.
The COMELEC initially intended to implement the automation during the May
11, 1998 presidential elections, particularly in the Autonomous Region in
Muslim Mindanao (ARMM). The failure of the machines to read correctly some
automated ballots, however, deferred its implementation.3
In the May 2001 elections, the counting and canvassing of votes for both
national and local positions were also done manually, as no additional ACMs
had been acquired for that electoral exercise because of time constraints.
On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170,
a modernization program for the 2004 elections consisting of three (3) phases,
to wit:
(1) PHASE I Computerized system of registration and voters validation or the
so-called "biometrics" system of registration;
(2) PHASE II Computerized voting and counting of votes; and
(3) PHASE III Electronic transmission of results.
It resolved to conduct biddings for the three phases.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive
Order No. 172,4 which allocated the sum of P2,500,000,000 to exclusively fund
the AES in time for the May 10, 2004 elections.
On January 28, 2003, the COMELEC issued an Invitation to Bid 5 for the
procurement of supplies, equipment, materials and services needed for the
complete implementation of all three phases of the AES with an approved
budget of P2,500,000,000.
On February 10, 2003, upon the request of the COMELEC, President Gloria
Macapagal-Arroyo issued Executive Order No. 175,6 authorizing the release of
a supplemental P500 million budget for the AES project of the COMELEC. The
said issuance, likewise, instructed the Department of Budget and Management
(DBM) to ensure that the aforementioned additional amount be used
exclusively for the AES prescribed under Rep. Act No. 8436, particularly "the
process of voting, counting of votes and canvassing/consolidation of results of
the national and local elections."7
On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding
the contract for Phase II of the AES to Mega Pacific Consortium and
correspondingly entered into a contract with the latter to implement the project.
On the same day, the COMELEC entered into a separate contract with
Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC
TRANSMISSION, CONSOLIDATION & DISSEMINATION OF
ELECTION RESULTS PROJECT CONTRACT.8 The contract, by its very
terms, pertains to Phase III of the respondent COMELECs AES modernization
program. It was predicated on a previous bid award of the contract, for the lease
of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each
unit consisting of an indoor and outdoor equipment, to PMSI for possessing the
legal, financial and technical expertise necessary to meet the projects
objectives. The COMELEC bound and obliged itself to pay PMSI the sum
of P298,375,808.90 as rentals for the leased equipment and for its services.
In the meantime, the Information Technology Foundation of the Philippines
(ITFP), filed a petition for certiorari and prohibition in this Court for the
nullification of Resolution No. 6074 approving the contract for Phase II of AES
to Mega Pacific Consortium, entitled and docketed as Information Technology
Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139.
While the case was pending in this Court, the COMELEC paid the contract fee
to the PMSI in trenches.
On January 13, 2004, this Court promulgated its Decision nullifying
COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES
to Mega Pacific Consortium. Also voided was the subsequent contract entered
into by the respondent COMELEC with Mega Pacific Consortium for the
purchase of computerized voting/counting machines for the purpose of
implementing the second phase of the modernization program. Phase II of the
AES was, therefore, scrapped based on the said Decision of the Court and the
COMELEC had to maintain the old manual voting and counting system for the
May 10, 2004 elections.
On the other hand, the validation scheme under Phase I of the AES apparently
encountered problems in its implementation, as evinced by the COMELECs
pronouncements prior to the elections that it was reverting to the old listing of
voters. Despite the scrapping of Phase II of the AES, the COMELEC
nevertheless ventured to implement Phase III of the AES through an electronic
transmission of advanced "unofficial" results of the 2004 elections for national,
provincial and municipal positions, also dubbed as an "unofficial quick count."
Senate President Franklin Drilon had misgivings and misapprehensions about
the constitutionality of the proposed electronic transmission of results for the
positions of President and Vice-President, and apprised COMELEC Chairman
Benjamin Abalos of his position during their meeting on January 28, 2004. He
also wrote Chairman Abalos on February 2, 2004. The letter reads:
Dear Chairman Abalos,
This is to confirm my opinion which I relayed to you during our meeting on
January 28th that the Commission on Elections cannot and should not conduct
a "quick count" on the results of the elections for the positions of President and
Vice-President.
Under Section 4 of Article VII of the Constitution, it is the Congress that has
the sole and exclusive authority to canvass the votes for President and Vice-
20
President. Thus, any quick count to be conducted by the Commission on said
positions would in effect constitute a canvass of the votes of the President and
Vice-President, which not only would be pre-emptive of the authority of the
Congress, but also would be lacking of any Constitutional authority. You
conceded the validity of the position we have taken on this point.
In view of the foregoing, we asked the COMELEC during that meeting to
reconsider its plan to include the votes for President and Vice-President in the
"quick count", to which you graciously consented. Thank you very much.9
The COMELEC approved a Resolution on February 10, 2004 referring the
letter of the Senate President to the members of the COMELEC and its Law
Department for study and recommendation. Aside from the concerns of the
Senate President, the COMELEC had to contend with the primal problem of
sourcing the money for the implementation of the project since the money
allocated by the Office of the President for the AES had already been spent for
the acquisition of the equipment. All these developments notwithstanding, and
despite the explicit specification in the project contract for Phase III that the
same was functionally intended to be an interface of Phases I and II of the AES
modernization program, the COMELEC was determined to carry out Phase III
of the AES. On April 6, 2004, the COMELEC, in coordination with the project
contractor PMSI, conducted a field test of the electronic transmission of
election results.
On April 27, 2004, the COMELEC met en banc to update itself on and resolve
whether to proceed with its implementation of Phase III of the AES.10 During
the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested
his fellow Commissioners that "whatever is said here should be confined within
the four walls of this room and the minutes so that walang masyadong
problema.11 Commissioner Tuason, Jr. stated that he had no objection as to the
Phase III of the modernization project itself, but had concerns about the budget.
He opined that other funds of the COMELEC may not be proper for
realignment. Commissioners
Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on
the budget for the project. Commissioner Manuel Barcelona, Jr. shared the
sentiments of Commissioners Garcillano and Tuason, Jr. regarding personnel
and budgetary problems. Commissioner Sadain then manifested that the
consideration for the contract for Phase III had already been almost fully paid
even before the Courts nullification of the contract for Phase II of the AES, but
he was open to the possibility of the realignment of funds of the COMELEC for
the funding of the project. He added that if the implementation of Phase III
would not be allowed to continue just because Phase II was nullified, then it
would be P300,000,000 down the drain, in addition to the already allocated
disbursement on Phase II of the AES.12 Other concerns of the Commissioners
were on the legality of the project considering the scrapping of Phase II of the
AES, as well as the operational constraints related to its implementation.
Despite the dire and serious reservations of most of its members, the
COMELEC, the next day, April 28, 2004, barely two weeks before the national
and local elections, approved the assailed resolution 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."13 For the purpose, respondent COMELEC established a National
Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for
every city and municipality, and a special ETC at the COMELEC, Manila, for
the Overseas Absentee Voting.14
Briefly, the procedure for this electronic transmission of precinct results is
outlined as follows:
I. The NCC shall receive and consolidate all precinct results based on the data
transmitted to it by each ETC;15
II. Each city and municipality shall have an ETC "where votes obtained by each
candidate for all positions shall be encoded, and shall consequently be
transmitted electronically to the NCC, through Very Small Aperture Terminal
(VSAT) facilities."16 For this purpose, personal computers shall be allocated for
all cities and municipalities at the rate of one set for every one hundred seventy-
five (175) precincts;17
III. A Department of Education (DepEd) Supervisor shall be designated in the
area who will be assigned in each polling center for the purpose of gathering
from all Board of Election Inspectors (BEI) therein the envelopes containing
the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of
the ER for local positions, both intended for the COMELEC, which shall be
used as basis for the encoding and transmission of advanced precinct results. 18
The assailed resolution further provides that written notices of the date, time
and place of the 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 to candidates running for national positions, as well
as to political parties fielding candidates, and parties, organizations/coalitions
participating under the party-list system.19
In relation to this, Section 13 of the assailed resolution provides that
the encoding proceedings were ministerial and the tabulations were "advanced
unofficial results." The entirety of Section 13, reads:
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 the sangguniang panlalawigan, sangguniang
panglungsod or sangguniang bayanbelonging to the same slate or ticket shall
collectively be entitled to only one common observer at the ETC.
The citizens arm of the Commission, and civic, religious, professional,
business, service, youth and other similar organizations collectively, with prior
authority of the Commission, shall each be entitled to one (1) observer. Such
fact shall be recorded in the Minutes.
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.
The encoding proceedings being ministerial in nature, and the tabulations
being advanced unofficial results, no objections or protests shall be allowed or
entertained by the ETC.
In keeping with the "unofficial" character of the electronically transmitted
precinct results, the assailed resolution expressly provides that "no print-outs
shall be released at the ETC and at the NCC."20 Instead, consolidated and per-
precinct results shall be made available via the Internet, text messaging, and
electronic billboards in designated locations. Interested parties may print the
result published in the COMELEC web site.21
When apprised of the said resolution, the National Citizens Movement for Free
Elections (NAMFREL), and the heads of the major political parties, namely,
Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino(LDP) and
Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive
Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San
Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of
Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and
Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and
Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas,
wrote the COMELEC, on May 3, 2004 detailing their concerns about the
assailed resolution:
This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.
NAMFREL and political parties have the following concerns about Resolution
6712 which arose during consultation over the past week[:]
a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only
the citizens arm to use an election return for an unofficial count; other
unofficial counts may not be based on an election return; Indeed, it may be
fairly inferred from the law that except for the copy of the citizens arm, election
returns may only be used for canvassing or for receiving dispute resolutions.
b) The Commissions copy, the second or third copy of the election return, as
the case may be, has always been intended to be an archived copy and its
integrity preserved until required by the Commission to resolve election
disputes. Only the Board of Election Inspectors is authorized to have been in
contact with the return before the Commission unseals it.
21
c) The instruction contained in Resolution 6712, to break the seal of the
envelope containing copies Nos. 2 and 3 will introduce a break in the chain of
custody prior to its opening by the Commission on Election[s]. In the process
of prematurely breaking the seal of the Board of Election Inspectors, the
integrity of the Commissions copy is breached, thereby rendering it void of
any probative value.
To us, it does appear that the use of election returns as prescribed in Resolution
6712 departs from the letters and spirit of the law, as well as previous practice.
More importantly, questions of legalities aside, the conduct of an advanced
count by the COMELEC may affect the credibility of the elections because it
will differ from the results obtained from canvassing. Needless to say, it does
not help either that Resolution 6712 was promulgated only recently, and
perceivably, on the eve of the elections.
In view of the foregoing, we respectfully request the Commission to reconsider
Resolution 6712 which authorizes the use of election returns for the
consolidation of the election results for the May 10, 2004 elections.22
The Present Petition
On May 4, 2004, the petition at bar was filed in this Court.
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. Isleta and Jose A. Bernas, filed with this Court their Motion to
Admit Attached Petition-in-Intervention. In their petition-in-intervention,
movants-petitioners urge the Court to declare as null and void the assailed
resolution and permanently enjoin the respondent COMELEC from
implementing the same. The Court granted the motion of the petitioners-in-
intervention and admitted their petition.
In assailing the validity of the questioned resolution, the petitioner avers in his
petition that there is no provision under Rep. Act No. 8436 which authorizes
the COMELEC to engage in the biometrics/computerized system of validation
of voters (Phase I) and a system of electronic transmission of election results
(Phase III). Even assuming for the nonce that all the three (3) phases are duly
authorized, they must complement each other as they are not distinct and
separate programs but mere stages of one whole scheme. Consequently,
considering the failed implementation of Phases I and II, there is no basis at all
for the respondent COMELEC to still push through and pursue with Phase III.
The petitioner essentially posits that the counting and consolidation of votes
contemplated under Section 6 of Rep. Act No. 8436 refers to the official
COMELEC count under the fully automated system and not any kind of
"unofficial" count via electronic transmission of advanced results as now
provided under the assailed resolution.
The petitioners-in-intervention point to several constitutional infractions
occasioned by the assailed resolution. They advance the view that the assailed
resolution effectively preempts the sole and exclusive authority of Congress
under Article VII, Section 4 of the Constitution to canvass the votes for
President and Vice-President. Further, as there has been no appropriation by
Congress for the respondent COMELEC to conduct an "unofficial" electronic
transmission of results of the May 10, 2004 elections, any expenditure for the
said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.
On statutory grounds, the petitioner and petitioners-in-intervention contend that
the assailed resolution encroaches upon the authority of NAMFREL, as the
citizens accredited arm, to conduct the "unofficial" quick count as provided
under pertinent election laws. It is, likewise, impugned for violating Section
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.
For its part, the COMELEC preliminarily assails the jurisdiction of this Court
to pass upon the assailed resolutions validity claiming that it was promulgated
in the exercise of the respondent COMELECs executive or administrative
power. It asserts that the present controversy involves a "political question;"
hence, beyond the ambit of judicial review. It, likewise, impugns the standing
of the 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 assailed
resolution.
On the merits, the respondent COMELEC denies that the assailed resolution
was promulgated pursuant to Rep. Act No. 8436, and that it is the
implementation of Phase III of its modernization program. Rather, as its bases,
the respondent 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, the Omnibus Election Code, and Rep. Acts Nos. 6646 and
7166. The COMELEC avers that granting arguendo that the assailed resolution
is related to or connected with Phase III of the modernization program, no
specific law is violated by its implementation. It posits that Phases I, II and III
are mutually exclusive schemes such that, even if the first two phases have been
scrapped, the latter phase may still proceed independently of and separately
from the others. It further argues that there is statutory basis for it to conduct an
"unofficial" quick count. Among others, it invokes the general grant to it of the
power "to ensure free, orderly, honest, peaceful and credible elections." Finally,
it claims that it had complied with Section 52(i) of the Omnibus Election Code,
as the political parties and all the candidates of the 2004 elections were
sufficiently notified of the electronic transmission of advanced election results.
The COMELEC trivializes as "purely speculative" these constitutional
concerns raised by the petitioners-in-intervention and the Senate President. It
maintains that what is contemplated in the assailed resolution is not a canvass
of the votes but merely consolidation and transmittal thereof. As such, it cannot
be made the basis for the proclamation of any winning candidate. Emphasizing
that the project is "unofficial" in nature, the COMELEC opines that it cannot,
therefore, be considered as preempting or usurping the exclusive power of
Congress to canvass the votes for President and Vice-President.
The Issues
At the said hearing on May 8, 2004, the Court set forth the issues for resolution
as follows:
1. Whether the petitioner and the petitioners-intervenors have standing to sue;
2. Assuming that they have standing, whether the issues they raise are political
in nature over which the Court has no jurisdiction;
3. Assuming the issues are not political, whether Resolution No. 6712 is void:
(a) for preempting the sole and exclusive authority of Congress under Art. VII,
Sec. 4 of the 1987 Constitution to canvass the votes for the election of President
and Vice-President;
(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no
money shall be paid out of the treasury except in pursuance of an appropriation
made by law;"
(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only
the citizens arm to use an election return for an "unofficial" count;
(d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less
than thirty (30) days notice of the use of new technological and electronic
devices; and,
(e) for lack of constitutional or statutory basis; and,
4. Whether the implementation of Resolution No. 6712 would cause trending,
confusion and chaos.
The Ruling of the Court
The issues, as earlier defined, shall now be resolved in seriatim:
The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To
Maintain The Present Action
The gist of the question of standing is whether a party has "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.23 Since the
implementation of the assailed resolution obviously involves the expenditure of
funds, the petitioner and the petitioners-in-intervention, 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. 24 In essence,
22
taxpayers are allowed to sue where there is a claim of illegal disbursement of
public funds, or that public
money is being deflected to any improper purpose, or where the petitioners seek
to restrain the respondent from wasting public funds through the enforcement
of an invalid or unconstitutional law.25
Most of the petitioners-in-intervention are also representatives of major
political parties that have participated in the May 10, 2004 elections. On the
other hand, petitioners-in-intervention Concepcion and Bernas represent the
National Citizens Movement for Free Elections (NAMFREL), which is the
citizens arm authorized to conduct an "unofficial" quick count during the said
elections. They have sufficient, direct and personal interest in the manner by
which the respondent COMELEC would conduct the elections, including the
counting and canvassing of the votes cast therein.
Moreover, the petitioners-in-intervention Drilon and De Venecia are,
respectively, President of the Senate and Speaker of the House of
Representatives, the heads of Congress which is exclusively authorized by the
Constitution to canvass the votes for President and Vice-President. They have
the requisite standing to prevent the usurpation of the constitutional prerogative
of Congress.
The Issue Raised By The Petition Is Justiciable
Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial
review by providing that:
SEC. 1. 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 Court does not agree with the posture of the respondent COMELEC that
the issue involved in the present petition is a political question beyond the
jurisdiction of this Court to review. As the leading case of Taada vs.
Cuenco26 put it, political questions are concerned with "issues dependent upon
the wisdom, not legality of a particular measure."
The issue raised in the present petition does not merely concern the wisdom of
the assailed resolution but focuses on its alleged disregard for applicable
statutory and constitutional provisions. In other words, that the petitioner and
the petitioners-in-intervention are questioning the legality of the respondent
COMELECs administrative issuance will not preclude this Court from
exercising its power of judicial review to determine whether or not there was
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the respondent COMELEC in issuing Resolution No. 6712. Indeed,
administrative issuances must not override, supplant or modify the law, but
must remain consistent with the law they intend to carry out. 27 When the grant
of power is qualified, conditional or subject to limitations, the issue of whether
the prescribed qualifications or conditions have been met or the limitations
respected, is justiciable the problem being one of legality or validity, not its
wisdom.28 In the present petition, the Court must pass upon the petitioners
contention that Resolution No. 6712 does not have adequate statutory or
constitutional basis.
Although not raised during the oral arguments, another procedural issue that
has to be addressed is whether the substantive issues had been rendered moot
and academic. Indeed, the May 10, 2004 elections have come and gone. Except
for the President and Vice-President, the newly- elected national and local
officials have been proclaimed. Nonetheless, the Court finds it necessary to
resolve the merits of the substantive issues for future guidance of both the bench
and bar.29 Further, it is settled rule that courts will decide a question otherwise
moot and academic if it is "capable of repetition, yet evading review."30
The Respondent COMELEC Committed Grave Abuse Of Discretion
Amounting To Lack Or Excess Of Jurisdiction In Issuing Resolution No.
6712
The preliminary issues having been thus resolved, the Court shall proceed to
determine whether the respondent COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in promulgating the
assailed resolution.
The Court rules in the affirmative.
An administrative body or tribunal acts without jurisdiction if it does not have
the legal power to determine the matter before it; there is excess of jurisdiction
where the respondent, being clothed with the power to determine the matter,
oversteps its authority as determined by law.31 There is grave abuse of
discretion 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.32
First. The assailed resolution usurps, under the guise of an "unofficial"
tabulation of election results based on a copy of the election returns, the sole
and exclusive authority of Congress to canvass the votes for the election of
President and Vice-President. Article VII, Section 4 of the Constitution
provides in part:
The returns of every election for President and Vice-President duly certified by
the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty
days after the day of the election, open all the certificates in the presence of the
Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.
As early as January 28, 2004, Senate President Franklin M. Drilon already
conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the
respondent COMELEC could not and should not conduct any "quick count" of
the votes cast for the positions of President and Vice-President. In his Letter
dated February 2, 200433addressed to Chairman Abalos, Senate President
Drilon reiterated his position emphasizing that "any quick count to be
conducted by the Commission on said positions would in effect constitute a
canvass of the votes of the President and Vice-President, which not only would
be pre-emptive of the authority of Congress, but would also be lacking of any
constitutional authority."34
Nonetheless, in disregard of the valid objection of the Senate President, the
COMELEC proceeded to promulgate the assailed resolution. Such resolution
directly infringes the authority of Congress, considering that Section 4 thereof
allows the use of the third copy of the Election Returns (ERs) for the positions
of President, Vice-President, Senators and Members of the House of
Representatives, intended for the COMELEC, as basis for the encoding and
transmission of advanced precinct results, and in the process, canvass the votes
for the President and Vice-President, ahead of the canvassing of the same votes
by Congress.
Parenthetically, even the provision of Rep. Act No. 8436 confirms the
constitutional undertaking of Congress as the sole body tasked to canvass the
votes for the President and Vice-President. Section 24 thereof provides:
SEC. 24. Congress as the National Board of Canvassers for President and
Vice-President. -- The Senate and the House of Representatives, in joint public
session, shall compose the national board of canvassers for president and vice-
president. The returns of every election for president and vice-president duly
certified by the board of canvassers of each province or city, shall be transmitted
to the Congress, directed to the president of the Senate. Upon receipt of the
certificates of canvass, the president of the Senate shall, not later than thirty
(30) days after the day of the election, open all the certificates in the presence
of the Senate and the House of Representatives in joint public session, and the
Congress upon determination of the authenticity and the due execution thereof
in the manner provided by law, canvass all the results for president and vice-
president by consolidating the results contained in the data storage devices
submitted by the district, provincial and city boards of canvassers and
thereafter, proclaim the winning candidates for president and vice-president.
The contention of the COMELEC that its tabulation of votes is not prohibited
by the Constitution and Rep. Act No. 8436 as such tabulation is "unofficial," is
puerile and totally unacceptable. If the COMELEC is proscribed from
conducting an official canvass of the votes cast for the President and Vice-
23
President, the COMELEC is, with more reason, prohibited from making an
"unofficial" canvass of said votes.
The COMELEC realized its folly and the merits of the objection of the Senate
President on the constitutionality of the resolution that it decided not to conduct
an "unofficial" quick count of the results of the elections for President and Vice-
President. Commissioner Sadain so declared during the hearing:
JUSTICE PUNO:
The word you are saying that within 36 hours after election, more or less, you
will be able to tell the people on the basis of your quick count, who won the
election, is that it?
COMM. SADAIN:
Well, its not exactly like that, Your Honor. Because the fact of winning the
election would really depend on the canvassed results, but probably, it would
already give a certain degree of comfort to certain politicians to people rather,
as to who are leading in the elections, as far as Senator down are concerned, but
not to President and Vice-President.
JUSTICE PUNO:
So as far as the Senatorial candidates involved are concerned, but you dont
give this assurance with respect to the Presidential and Vice-Presidential
elections which are more important?
COMM. SADAIN:
In deference to the request of the Senate President and the House Speaker, Your
Honor. According to them, they will be the ones canvassing and proclaiming
the winner, so it is their view that we will be pre-empting their canvassing work
and the proclamation of the winners and we gave in to their request.35
JUSTICE CALLEJO, [SR.]:
Perhaps what you are saying is that the system will minimize "dagdag-bawas"
but not totally eradicate "dagdag-bawas"?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CALLEJO, [SR.]:
Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a
conference between the Speaker and the Senate President and the Chairman
during which the Senate President and the Speaker voice[d] their objections to
the electronic transmission results system, can you share with us the objections
of the two gentlemen?
COMM. SADAIN:
These was relayed to us Your Honor and their objection or request rather was
for us to refrain from consolidating and publishing the results for presidential
and vice-presidential candidates which we have already granted Your Honors.
So, there is going to be no consolidation and no publication of the
COMM. SADAIN:
Reason behind being that it is actually Congress that canvass that the official
canvass for this and proclaims the winner.36
Second. The assailed COMELEC resolution contravenes the constitutional
provision that "no money shall be paid out of the treasury except in pursuance
of an appropriation made by law."37
By its very terms, the electronic transmission and tabulation of the election
results projected under Resolution No. 6712 is "unofficial" in character,
meaning "not emanating from or sanctioned or acknowledged by the
government or government body.38 Any disbursement of public funds to
implement this project is contrary to the provisions of the Constitution and Rep.
Act No. 9206, which is the 2003 General Appropriations Act. The use of the
COMELEC of its funds appropriated for the AES for the "unofficial" quick
count project may even be considered as a felony under Article 217 of the
Revised Penal Code, as amended.39
Irrefragably, the implementation of the assailed resolution would entail, in due
course, the hiring of additional manpower, technical services and acquisition of
equipment, including computers and software, among others. According to the
COMELEC, it needed P55,000,000 to operationalize the project, including the
encoding process.40Hence, it would necessarily involve the disbursement of
public funds for which there must be the corresponding appropriation.
The COMELEC posited during the hearing that the 2003 General
Appropriations Act has appropriated the amount needed for its "unofficial"
tabulation. We quote the transcript of stenographic notes taken during the
hearing:
JUSTICE VITUG:
And you mentioned earlier something about 55 million not being paid as yet?
COMM. SADAIN:
This is an extra amount that we will be needing to operationalize.
JUSTICE VITUG:
And this has not yet been done?
COMM. SADAIN:
It has not yet been done, Your Honor.
JUSTICE VITUG:
Would you consider the funds that were authorized by you under the General
Appropriations Act as capable of being used for this purpose?
COMM. SADAIN:
Yes, thats our position, Your Honor.41
But then the COMELEC, through Commissioner Sadain, admitted during the
said hearing that although it had already approved the assailed resolution, it was
still looking for the P55,000,000 needed to operationalize the project:
JUSTICE CARPIO:
Just a clarification. You stated that you signed already the main contract for 300
million but you have not signed the 55 million supplemental contract for the
encoding?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CARPIO:
Because you still dont have the money for that?
COMM. SADAIN:
Well, yes, we are trying to determine where we can secure the money.
JUSTICE CARPIO:
Now, the encoding is crucial; without the encoding, the entire project collapses?
COMM. SADAIN:
Yes.42
Inexplicably, Commissioner Sadain contradicted himself when he said that its
Financial Department had already found the money, but that proper
documentation was forthcoming:
JUSTICE CARPIO:
24
Just a clarification. You stated that you signed already the main contract for 300
million but you have not signed the 55 million supplemental contract for the
encoding?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CARPIO:
Because you still dont have the money for that?
COMM. SADAIN:
Well, yes, we are trying to determine where we can secure the money.
JUSTICE CARPIO:
Now, the encoding is crucial; without the encoding, the entire project collapses?
COMM. SADAIN:
Yes.
JUSTICE CARPIO:
So, you have two (2) days to look for the 55 million, you have signed the
contract on the main contract and if you dont get that 55 million, that 300
million main contract goes to waste, because you cannot encode?
COMM. SADAIN:
Its just a matter of proper documentation, Your Honor, because I was informed
by our Finance Department that the money is there.
JUSTICE CARPIO:
So, you have found the money already?
COMM. SADAIN:
Yes, Your Honor.43
Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the
Commissioners expressed their serious concerns about the lack of funds for the
project, the propriety of using the funds for Phase III of its modernization, and
the possibility of realigning funds to finance the project:
Comm. Tuason:
May I just request all the parties who are in here na whatever is said here should
be confined within the four walls of this room and the minutes so that walang
masyadong problema.
Comm. Borra:
Sa akin lang, we respect each others opinion. I will not make any observations.
I will just submit my own memo to be incorporated in the minutes.
Comm. Tuason:
Commissioner Borra will submit a comment to be attached to the minutes but
not on the resolution. Ako naman, I will just make it on record my previous
reservation. I do not have any objection as to the Phase III modernization
project itself. My main concern is the budget. I would like to make it on record
that the budget for Phase III should be taken from the modernization program
fund because Phase III is definitely part of the modernization project. Other
funds, for instance other funds to be used for national elections may not be
proper for realignment. That is why I am saying that the funds to be used for
Phase III should properly come from the modernization. The other reservation
is that the Election Officers are now plagued with so much work such as the
preparation of the list of voters and their concern in their respective areas. They
were saying to me, specially so in my own region, that to burden them with
another training at this point in time will make them loose (sic) focus on what
they are really doing for the national elections and what they are saying is that
they should not be subjected to any training anymore. And they also said that
come canvassing time, their priority would be to canvass first before they
prepare the certificate of votes to be fed to the encoders [to be fed to the
encoders] for electronic transmission. I share the sentiments of our people in
the field. That is also one of my reservations. Thank you.
Comm. Garcillano:
I also have my observations regarding the financial restraint that we are facing if
the money that is going to be used for this is taken from the Phase II, I dont
think there is money left.
Comm. Borra:
There is no more money in Phase II because the budget for Phase II is 1.3
Billion. The award on the contract for Phase II project is 1.248 billion. So the
remaining has been allocated for additional expenses for the technical working
group and staff for Phase II.
Comm. Garcillano:
I also have one problem. We have to have additional people to man this which
I think is already being taken cared of. Third is, I know that this will disrupt the
canvassing that is going to be handled by our EO and Election Assistant. I do
not know if it is given to somebody (inaudible)
Comm. Tuason:
Those are your reservations.
Comm. Barcelona:
As far as I am concerned, I also have my reservations because I have the same
experience as Commissioner Tuason when I went to Region IX and Caraga. Our
EOs and PES expressed apprehension over the additional training period that
they may have to undergo although, they say, that if that is an order they will
comply but it will be additional burden on them. I also share the concern of
Commissioner Tuason with regard to the budget that should be taken from the
modernization budget.
Comm. Borra:
For the minutes, my memo is already prepared. I will submit it in detail. On
three counts naman yan eh legal, second is technical/operational and third is
financial.
Comm. Sadain:
Ako naman, for my part as the CIC for Phase III, we were left with no choice
but to implement Phase III inasmuch as expenses has already been incurred in
Phase III to the tune of almost 100% at the time when the Phase II contract was
nullified. So if we stop the implementation of Phase III just because Phase II
was nullified, which means that there would be no consolidation and accounting
consolidation for the machines, then it would be again 300 million pesos down
the drain. Necessarily there would be additional expense but we see this as a
consequence of the loss of Phase II. I share the view of Comm. Tuason that as
much as possible this should be taken from the modernization fund as much as
this is properly modernization concern. However, I would like to open myself
to the possibility na in case wala talaga, we might explore the possibility of
realigning funds although that might not (inaudible). Now with regards the
legality, I think what Commissioner Borra has derived his opinion but I would
like to think the legality issue must have been settled already as early as when
we approved the modernization program involving all three phases although we
also grant the benefit of the argument for Commissioner Borra if he thinks that
there is going to be a legal gap for the loss of Phase II. With regards the concern
with the Election Officers, I also share the same concern. In fact, on this matter
alone, we try to make the GI as simple as possible so that whatever burden we
will be giving to the EOs and EAs will be minimized. As in fact, we will be
recommending that the EOs will no longer be bothered to attend the
training. They can probably just sit in for the first hour and then they can go on
with their normal routine and then leave the encoders as well as the reception
officers to attend the training because there (sic) are the people who will really
be doing the ministerial, almost mechanical, work of encoding and transmitting
the election results. Yun lang.44
25
We have reviewed Rep. Act No. 9206, the General Appropriations Act, which
took effect on April 23, 2003 and find no appropriation for the project of the
COMELEC for electronic transmission of "unofficial" election results. What is
appropriated therein is the amount of P225,000,000 of the capital outlay for
the modernization of the electoral system.
B. PROJECTS
I. Locally-Funded Projects
a. For the Modernization of Electoral System
b. FY 2003 Preparatory Activities for National Elections
c. Upgrading of Voters Database 125,000,000
d. Conduct of Special Election to fill the vacancy in the Third
District of Cavite
e. Implementation of Absentee Voting Act of 2003 (RA
9189)
==========COMELEC as the statutory
Sub-Total, Locally-Funded Projects
681,500,000
Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount
of P225,000,000 shall be used primarily for the establishment of the AES
prescribed under Rep. Act No. 8436, viz:
3. Modernization of Electoral System. The appropriations herein authorized for
the Modernization of the Electoral System in the amount of Two Hundred
Twenty-Five Million Pesos (P225,000,000.00) shall be used primarily for the
establishment of the automated election system, prescribed under Republic Act
No. 8436, particularly for the process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections. 46
Section 52 of Rep. Act No. 9206 proscribes any change or modification in the
expenditure items authorized thereunder. Thus:
Sec. 52. Modification of Expenditure Components. Unless specifically
authorized in this Act, no change or modification shall be made in the
expenditure items in this Act and other appropriations laws unless in cases of
augmentation from savings in appropriations as authorized under Section 25(5),
Article VI of the 1987 Philippine Constitution.
Neither can the money needed for the project be taken from the COMELECs
savings, if any, because it would be violative of Article VI, Section 25 (5) 47 of
the 1987 Constitution.
48
The power to augment from savings lies dormant until authorized by law. In
this case, no law has, thus, far been enacted authorizing the respondent
COMELEC to transfer savings from another item in its appropriation, if there
are any, to fund the assailed resolution. No less than the Secretary of the Senate
certified that there is no law appropriating any amount for an "unofficial" count
and tabulation of the votes cast during the May 10, 2004 elections:
CERTIFICATION
I hereby certify that per records of the Senate, Congress has not legislated any
appropriation intended to defray the cost of an unofficial count, tabulation or
consolidation of the votes cast during the May 10, 2004 elections.
May 11, 2004. Pasay City, Philippines.
What is worrisome is that despite the concerns of the Commissioners during
its En Banc meeting on April 27, 2004, the COMELEC nevertheless approved
the assailed resolution the very next day. The COMELEC had not executed any
supplemental contract for the implementation of the project with PMSI. Worse,
even in the absence of a certification of availability of funds for the project, it
approved the assailed resolution.
Third. The assailed resolution disregards existing laws which authorize solely
the duly-accredited citizens arm to conduct the "unofficial" counting of votes.
Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No.
49 50
8173,
Maintenance and reiterated
& Other Operatingin Capital
Section 18 of Rep.TotalAct No. 8436, the accredited
Expenses citizens arm - in this case, NAMFREL
Outlays - is exclusively authorized to use a copy
of the election returns in the conduct of an "unofficial" counting of the votes,
whether for the national or the local elections. No other entity, including the
respondent COMELEC itself, is authorized to use a copy of the election returns
for purposes of conducting an "unofficial" count. In addition, the second or third
copy of the election returns, while required225,000,000
225,000,000 to be delivered to the COMELEC
under the aforementioned laws, are not intended for undertaking an "unofficial"
count. The aforesaid COMELEC copies are archived and unsealed only when
250,000,000
needed by the respondent COMELEC to verify 250,000,000
election results in connection
with resolving election disputes that may be imminent. However, in
contravention of the law, the assailed Resolution authorizes the so-called
125,000,000
Reception Officers (RO), to open the second or third copy intended for the
respondent COMELEC as basis for the encoding and transmission of advanced
"unofficial" precinct results. This not only violates the exclusive prerogative of
6,500,000 6,500,000
NAMFREL to conduct an "unofficial" count, but also taints the integrity of the
envelopes containing the election returns, as well as the returns themselves, by
creating a gap in its chain of custody from the Board of Election Inspectors to
the COMELEC.
300,000,000 300,000,000
Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the
basis for the assailed
========= resolution, does not cover the
==========
use
of the latest technological and
225,000,000election devices for "unofficial"
300,000,000 45 tabulations
of votes. Moreover, the COMELEC failed to notify the authorized
representatives of accredited political parties and all candidates in areas affected
by the use or adoption of technological and electronic devices not less than
thirty days prior to the effectivity of the use of such devices. Section 52(i) reads:
SEC. 52. Powers and functions of the Commission on Elections. In addition
to the powers and functions conferred upon it by the Constitution, the
Commission shall have exclusive charge of the enforcement and administration
of all laws relative to the conduct of elections for the purpose of ensuring free,
orderly and honest elections, and shall :
(i) Prescribe the use or adoption of the latest technological and electronic
devices, taking into account the situation prevailing in the area and the funds
available for the purpose: Provided, That the Commission shall notify the
authorized representatives of accredited political parties and candidates in areas
affected by the use or adoption of technological and electronic devices not less
than thirty days prior to the effectivity of the use of such devices.
From the clear terms of the above provision, before the 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 prevailing in the area and the funds available
for the purpose; and,
(b) Notify the authorized representatives of accredited political parties and
candidates in areas affected by the use or adoption of technological and
electronic devices not less than thirty days prior to the effectivity of the use of
such devices.
It is quite obvious that the purpose of this provision is to accord to all political
parties and all candidates the opportunity to object to the effectiveness of the
proposed technology and devices, and, if they are so minded not to object, to
allow them ample time to field their own trusted personnel especially in far
flung areas and to take other necessary measures to ensure the reliability of the
proposed electoral technology or device.
As earlier pointed out, the assailed resolution was issued by the COMELEC
despite most of the Commissioners apprehensions regarding the legal,
operational and financial impediments thereto. More significantly, since
Resolution No. 6712 was made effective immediately a day after its issuance
26
on April 28, 2004, the respondent COMELEC could not have possibly
complied with the thirty-day notice requirement provided under Section 52(i)
of the Omnibus Election Code. This indubitably violates the constitutional right
to due process of the political parties and candidates. The Office of the Solicitor
General (OSG) concedes this point, as it opines that "the authorized
representatives of accredited political parties and candidates should have been
notified of the adoption of the electronic transmission of election returns
nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday
and Good Friday, pursuant to Section 52(i) of the Omnibus Election
Code."51 Furthermore, during the hearing on May 18, 2004, Commissioner
Sadain, who appeared for the COMELEC, unabashedly admitted that it failed
to notify all the candidates for the 2004 elections, as mandated by law:
JUSTICE CARPIO:
You stated that you have notified in writing all the political parties and
candidates as required in Section 52 (i)?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CARPIO:
Now, how many candidates are there nationwide now?
COMM. SADAIN:
I must admit you Honor we were not able to notify the candidates but we
notified the politicians.
JUSTICE CARPIO:
Yes, but what does the law state? Read the law please.
We were not able to do that, Your Honor, I must admit.
JUSTICE CARPIO:
So, you did not notify hundreds of thousands of candidates?
COMM. SADAIN:
No, Your Honors.52
The respondent COMELEC has, likewise, failed to submit any resolution or
document to prove that it had notified all political parties of the intended
adoption of Resolution No. 6712, in compliance with Section 52(i) of the
Omnibus Election Code. This notwithstanding the fact that even long before the
issuance of the assailed resolution, it had admittedly entered into a contract on
April 15, 200353 and acquired facilities pertaining to the implementation of the
electronic transmission and official tabulation of election results. As correctly
pointed out by the petitioners-in-intervention, the invitations dated January 15,
2004 regarding the January 20, 2004 COMELEC Conference with the political
parties on election security measures did not mention electronic transmission of
advanced results, much less the formal adoption of the purpose of the
conference. Such "notices" merely invited the addressee thereof or its/his
authorized representative to a conference where the COMELEC would show a
sample of the official ballot to be used in the elections, discuss various security
measures that COMELEC had put in place, and solicit suggestions to improve
the administration of the polls.54 Further, the invitations purportedly sent out to
the political parties regarding the April 6, 2004 Field Test of the Electronic
Transmission, Consolidation and Dissemination System to be conducted by the
COMELEC appear to have been sent out in the late afternoon of April 5, 2004,
after office hours. There is no showing that all the political parties attended the
Field Test, or received the invitations. More importantly, the said invitations
did not contain a formal notice of the adoption of a technology, as required by
Section 52(i) of the Omnibus Election Code.55

COMM. SADAIN: Fifth. The assailed resolution has no constitutional and statutory basis. That
respondent COMELEC is the sole body tasked to "enforce and administer all
Yes, Your Honor. I understand that it includes candidates. laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall"56 and to ensure "free, orderly, honest, peaceful and
JUSTICE CARPIO: credible elections"57 is beyond cavil. That it possesses the power to promulgate
rules and regulations in the performance of its constitutional duties is, likewise,
And there are how many candidates nationwide running in this election?
undisputed. However, the duties of the COMELEC under the Constitution, Rep.
COMM. SADAIN: Act No. 7166, and other election laws are carried out, at all times, in its official
capacity. There is no constitutional and statutory basis for the respondent
Hundreds of thousands, Your Honor. COMELEC to undertake a separate and an "unofficial" tabulation of results,
whether manually or electronically. Indeed, by conducting such "unofficial"
JUSTICE CARPIO: tabulation of the results of the election, the COMELEC descends to the level of
a private organization, spending public funds for the purpose. Besides, it is
Hundreds of thousands, so you mean you just notified the political parties not absurd for the COMELEC to conduct two kinds of electoral counts a slow but
the candidates? "official" count, and an alleged quicker but "unofficial" count, the results of
each may substantially differ.
COMM. SADAIN:
Clearly, the assailed resolution is an implementation of Phase III of the
Yes, Your Honor.
modernization program of the COMELEC under Rep. Act No. 8436. Section 2
JUSTICE CARPIO: of the assailed resolution expressly refers to the Phase III-Modernization
Project of the COMELEC. Since this Court has already scrapped the contract
And you think that is substantial compliance, you would notify how many for Phase II of the AES, the COMELEC cannot as yet implement the Phase III
political parties as against hundreds of thousands of candidates? of the program. This is so provided in Section 6 of Rep. Act No. 8436.

COMM. SADAIN: 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
Yes, Your Honor, we notified the major political parties, Your Honor. 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
JUSTICE CARPIO: canvassing/consolidation of results of the national and local
elections: Provided, however, That for the May 11, 1998 elections, the System
Only the major political parties?
shall be applicable in all areas within the country only for the positions of
COMM. SADAIN: president, vice-president, senators and parties, organizations or coalitions
participating under the party-list system.
Including party list?
To achieve the purpose of this Act, the Commission is authorized to procure by
JUSTICE CARPIO: purchase, lease or otherwise, any supplies, equipment, materials and services
needed for the holding of the elections by an expedited process of public
But not the candidates, individual candidates? 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
COMM. SADAIN:
27
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 implementthe 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 provided in Rep. Act No. 8436 constitutes the entire "process of
voting, counting of votes and canvassing/consolidation of results of the national
and local elections" corresponding to the Phase I, Phase II and Phase III of the
AES of the COMELEC. The three phases cannot be effected independently of
each other. The implementation of Phase II of the AES is a condition sine qua
non to the implementation of Phase III. The nullification by this Court of the
contract for Phase II of the System effectively put on hold, at least for the May
10, 2004 elections, the implementation of Phase III of the AES.
Sixth. As correctly observed by the petitioner, there is a great possibility that
the "unofficial" results reflected in the electronic transmission under the
supervision and control of the COMELEC would significantly vary from the
results reflected in the COMELEC official count. The latter follows the
procedure prescribed by the Omnibus Election Code, which is markedly
different from the procedure envisioned in the assailed resolution.
Under the Omnibus Election Code, after the votes are cast and the polls closed,
the Board of Election Inspectors (BEI) for each precinct is enjoined to publicly
count the votes and record the same simultaneously on the tally boards and on
two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the
ERs are accomplished, they are forwarded to the Municipal Board of
Canvassers (MBC), which would canvass all the ERs and proclaim the elected
municipal officials. All the results in the ERs are transposed to the statements
of votes (SOVs) by precinct. These SOVs are then transferred to the certificates
of canvass (COCs) which are, in turn, brought to the Provincial Board of
Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from
various municipalities and proclaim the elected provincial officials, including
those to the House of Representatives. The PBC would then prepare two sets of
Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress
for its canvassing of the results for the President and Vice-President. The other
set is forwarded to the COMELEC for its canvassing of the results for Senators.
As the results 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, long after the pre-proclamation
controversies are resolved by the canvass boards and the COMELEC.
such problem arises because of the element of human intervention. In the
prevailing set up, there is human intervention because the results are manually
tallied, appreciated, and canvassed. On the other hand, the electronic
transmission of results is not entirely devoid of human intervention. The crucial
stage of encoding the precinct results in the computers prior to the transmission
requires human intervention. Under the assailed resolution, encoding is
accomplished by employees of the PMSI. Thus, the problem of "dagdag-
bawas" could still occur at this particular stage of the process.
As it stands, 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
The Court is mindful of the salutary goals that the respondent COMELEC had
envisioned in promulgating the assailed resolution, to wit: [t]o renew the
publics confidence in the Philippine Electoral System by:
1. Facilitating transparency in the process;
2. Ensuring the integrity of the results;
3. Reducing election results manipulation;
4. Providing timely, fast and accurate information to provide the public re
election results;
5. Enabling the validation of its own official count and other counts;
6. Having an audit trail in its own account.58
Doubtless, these are laudable intentions. But the rule of law requires that even
the best intentions must be carried out within the parameters of the Constitution
and the law. Verily, laudable purposes must be carried out by legal methods.59
WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712
dated April 28, 2004 issued by the Commission on Elections (COMELEC) En
Banc is hereby declared NULL AND VOID.
SO ORDERED.

On the other hand, under the assailed resolution, the precinct results of each city
and municipality received by the ETCs 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, both to be administered by the

respondent COMELEC, would most likely not tally. In the past elections, the
"unofficial" quick count conducted by the NAMFREL had never tallied with
that of the official count of the COMELEC, giving rise to allegations of
"trending" and confusion. With a second "unofficial" count to be conducted by
the official election body, the respondent COMELEC, in addition to its official
count, allegations of "trending," would most certainly be aggravated. As a
consequence, the electoral process would be undermined.

The only intimated utility claimed by the COMELEC for the "unofficial"
electronic transmission count is to avert the so-called "dagdag-bawas." The
purpose, however, as the petitioner properly characterizes it, is a total sham.
The Court cannot accept as tenable the COMELECs profession that from the
results of the "unofficial" count, it would be able to validate the credibility of
the official tabulation. To sanction this process would in effect allow the
COMELEC to preempt or prejudge an election question or dispute which has
not been formally brought before it for quasi-judicial cognizance and
resolutions.

Moreover, the Court doubts that the problem of "dagdag-bawas" could be

addressed by the implementation of the assailed resolution. It is observed that

28
[G.R. No. L-31455. February
FILIPINAS ENGINEERING AND MACHINE SHOP, Petitioner, v. HON.
JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as
Commissioners of the Commission on Elections; COMELEC BIDDING
COMMITTEE CHAIRMAN EMILIO AGUILA and MEMBERS
PACIENCIO BALLON, ALEJANDRO MACARANAS, TOMAS
MALLONGA and ERNESTO LOMBOS; HON. JUDGE JOSE
LEUTERIO of the Court of First Instance of Manila, Branch II and
ACME STEEL MANUFACTURING COMPANY, Respondents.
SYLLABUS
28, 1985.] appellant gave the lowest quotation, which was favorably indorsed by the
Committee on Bids, created a vested right in favor of the said bidder.
Admittedly, the offers were rejected by the Bound of Directors. It is clear
therefore that there having no meeting of the minds of the parties, there was no
perfected contract between them which could be the basis of action against the
defendants-appellees. The presentation by a reliable and responsible bidder of
the lowest bid to officials whose duty it is to let the contract to the lowest
reliable and responsible bidder, but who have the right and have given notice
that they reserve the right to reject any and all bids, does not constitute an
agreement that they will make a contract with such a bidder, nor vest in him
such an absolute right to the contract as against a higher bidder (Colorado
Paving Co. v. Murphy, (CCA 8th) 78 F. 28, 37 LRA 630). The mere
determination of a public official or bound to accept the proposal of a bidder
does not constitute a contract (Smithmeyer v. United States, 147 U.S. 342, 37
L, ed. 196,13 S. Ct. 321); the decision must be communicated to the bidder
(Cedur Rapids Lumber Co. v. Fischer, 129 Iowa 332, 105 N.W. 595, 4 LRA
(NS) 177).

1. REMEDIAL LAW; APPEAL; EXCLUSIVE JURISDICTION TO REVIEW

FINAL DECISIONS OF COMELEC RELATIVE TO ELECTION AND
ENFORCEMENT OF ELECTION LAWS; RESTS WITH THE SUPREME DECISION
COURT. It has been consistently held that it is the Supreme Court, not the
Court of First Instance, which has exclusive jurisdiction to review on certiorari;
final decisions, orders or rulings of the COMELEC relative to the conduct of
elections and enforcement of election laws.
CUEVAS, J.:
2. ID.; ACTION; ORDER OF THE COMELEC AWARDING CONTRACT
TO A PRIVATE PARTY; QUESTION CONNECTED THEREWITH
COGNIZABLE BY TRIAL COURT IN AN ORDINARY CIVIL ACTION.
We are however, far from convince that an order of the COMELEC awarding
a contract to a private party, as a result of its choice among various proposals Appeal be Certiorari from the Order dated November 15, 1969 issued by the
submitted in response to its invitation to bid comes within the purview of a respondent Judge of the then Court of First Instance of Manila, Branch II,
"final order" which is exclusively and directly appealable to this court DISMISSING Civil Case No. 77972 entitled, "Filipinas Engineering and
on certiorari. What is contemplated by the term "final orders, rulings and Machine Shop v. COMELEC, Et. Al.", and his Honors subsequent Order of
decisions" of the COMELEC reviewable by certiorariby the Supreme Court as December 20, 1969 DENYING petitioners motion for reconsideration.
provided by law are those rendered in actions or proceedings before the
COMELEC and taken cognizance of by the said body in the exercise of its In preparation for the national elections of November 11, 1969, then respondent
adjudicatory or quasi-judicial powers. The COMELEC resolution awarding the Commissioners of the Commission on Elections (COMELEC) issued an
contract in favor of Acme was not issued pursuant to its quasi-judicial functions INVITATION TO BID CALL No. 127 on September 16, 1969 calling for the
but merely as an incident of its inherent administrative functions over the submission of sealed proposals for the manufacture and delivery of 11,000 units
conduct of elections, and hence, the said resolution may not be deemed as a of voting booths with the following specifications and descriptions, to
"final order" reviewable by certiorariby the Supreme Court. Being non-judicial wit:jgc:chanrobles.com.ph
in character, no contempt may be imposed by the COMELEC from said order,
and no direct and exclusive appeal by certiorari to this Tribunal lie from such "11,000 Units VOTING BOOTHS, easy to install and store. Must be of light
order. Any question arising from said order may be well taken in an ordinary but strong and durable materials, rust proof or rust resistant and construction
civil action before the trial courts. must be sturdy. Each Unit shall consists of two (2) voting booths with overall
measurements of 150 cms. long x 75 cms. wide x 185 cms. high. (Each voting
3. ID.; ID.; LACK OF CAUSE OF ACTION; CASE AT BAR. On the booth or compartment measuring 75 cms. long x 75 cms. wide x 185 cms.
second issue, We rule that Filipinas, the losing bidder, has no cause of action high). The top and all sides except the front side, shall be fully covered. The
under the premises to enjoin the COMELEC from pursuing its contract with front side of the unit shall be without cover to serve as its opening (entrance).
Acme, the winning bidder. While it may be true that the lower court has the Each voting compartment shall be provided with a writing table.
jurisdiction over controversies dealing with the COMELECs award of
contracts, the same being purely administrative and civil in nature, nevertheless, "Each unit shall be contained in individual wooden box.
herein petitioner has no cause of action on the basis of the allegations of its
complaint. Indeed, while the law requires the exercise of sound discretion on "Bidders are required to submit finished sample." 1
the part of procurement authorities, and that the reservation to reject any or all
bids may not be used as a shield to a fraudulent award, petitioner has miserably Among the seventeen bidders who submitted proposals in response to the said
failed to prove or substantiate the existence of malice or fraud on the part of the INVITATION were the herein petitioner, Filipinas Engineering and Machine
public respondents in the challenged award. Pursuant to COMELECs Shop, (Filipinas for short) and the private respondent, Acme Steel
Invitation to Bid No. 127, a bidder may have the right to demand damages, or Manufacturing Company, (Acme for short).
unrealized or expected profits, only when his bid was accepted by resolution of
the COMELEC. Filipinas bid, although recommended for award of contract by Filipinas sealed proposal was as follows:chanrob1es virtual 1aw library
the bidding committee, was not the winning bid. No resolution to that effect
appeared to have been issued by the COMELEC. Decidedly then, Filipinas has Prices Per Unit Brief Description
no cause of action.
P128.00 Sample 2 same in construction as
4. CIVIL LAW; CONTRACT; MEETING OF MINDS; REQUIRED IN THE
PERFECTION OF A CONTRACT. Once more, We reiterate the dictum sample 1, except that its siding and top
earlier laid down in the case of Jalandoni v. National Resettlement and
Rehabilitation Administration, Et Al., G.R. No. L-15198, May 30, 1960 (108 cover is made of plywood (or lawanit if
Phil. 486, 491-492) that "Neither can it be contented that the fact that
available). 33.5 kilos in weight. Packed
29
 premises against the COMELEC and Acme, the winning bidder, to enjoin them
in wooden box. from complying with their contract.

P123.00 Same as sample 2, except that it is We resolve the first issue in the affirmative.

packed in corrogated carton box. 2 By constitutional mandate

Acmes bid was "The Commission on Elections shall have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections and shall
Prices Per Unit Brief Description exercise all other functions which may be conferred upon it by law. It shall
decide, save those involving the right to vote, all administrative questions
P78.00 Made of steel, channel type frames affecting elections, including the determination of the number of location of
polling places, and the appointment of election inspectors and of other election
with steel sheet sidings, top cover and officials . . . The decisions, orders and rulings of the Commission shall be
subject to review by the Supreme Court." (Section 2, Article X, 1935 Philippine
table; painted, 51 kilos in weight. 3 Constitution, which was then in force)

On October 7, 1969, the respondent COMELEC Bidding Committee Chairman Section 5 of the Revised Election Code (Republic Act No. 180, approved June
and Members submitted their Memorandum on the proceedings taken pursuant 21, 1947, the election law then enforced) provided that," (a) any controversy
to the said Invitation to Bid which stated that Acmes bid had to be rejected submitted to the Commission on Elections shall be tried, heard and decided by
because the sample it submitted was "made of black iron sheets, painted, and it within fifteen days counted from the time the corresponding petition giving
therefore not rust proof or rust resistant," and that, "it is also heavy 51 kilos rise to said controversy is filed," and that, "any violation of any final and
in weight." 4 The Committee instead recommended that Filipinas be awarded executory decision, order, or ruling of the Commission shall constitute
the contract to manufacture and supply the voting booths, but that an "ocular contempt of court." Likewise, the same section provided that, "any decision,
inspection be made by an members of the Commission of all the samples before order or ruling of the Commission on Elections may be reviewed by the
the final award be made." 5 Supreme Court by writ of certiorari in accordance with the Rules of Court or
with such rules as may be promulgated by the Supreme Court."cralaw
On October 9, 1969, after an ocular inspection of an the samples submitted was virtua1aw library
conducted by the COMELEC Commissioners, and after the Commissioners
noted that Acme submitted the lowest bid, the COMELEC issued a Resolution Similarly, Section 17(5) of the Judiciary Act of 1948 (Republic Act No. 296),
awarding the contract (for voting booths) to Acme, subject to the condition, as amended, provides that, "final awards, judgments, decisions or orders of the
among others, that" (Acme) improves the sample submitted in such manner as Commission on Elections . . ." fall within the exclusive jurisdiction of the
it would be rust proof or rust resistant . . ." 6 Supreme Court by way of certiorari. Section 1, Rule 43 of the 1964 Revised
Rules of Court prescribed the manner of appeal by certiorari to the Supreme
On October 11, 1969, the COMELEC issued Purchase Order No. 682 for the Court from a final order, ruling or decision of the Commission on Elections,
manufacture and supply of the 11,000 Units of voting booths in favor of Acme. among other administrative bodies.
Acme accepted the terms of the purchase.
Hence it has been consistently held 9 that it is the Supreme Court, not the Court
On October 16, 1969, Filipinas filed an Injunction suit with the then Court of of First Instance, which has exclusive jurisdiction to review on certiorari; final
First Instance of Manila, docketed as Civil Case No. 77972, against herein decisions, orders or rulings of the COMELEC relative to the conduct of
public respondents COMELEC Commissioners, chairman and members of the elections and enforcement of election laws.
Comelec Bidding Committee, and private respondent Acme.
We are however, far from convince that an order of the COMELEC awarding
Filipinas also applied for a writ of preliminary injunction. After hearing a contract to a private party, as a result of its choice among various proposals
petitioners said application, the respondent Judge in an order dated October 20, submitted in response to its invitation to bid comes within the purview of a
1969 denied the writ prayed for. 7 "final order" which is exclusively and directly appealable to this court
on certiorari. What is contemplated by the term "final orders, rulings and
Thereafter or more specifically on October 29, 1969, the public respondents decisions" of the COMELEC reviewable by certiorari by the Supreme Court as
filed a motion to Dismiss on the grounds that the lower court has no jurisdiction provided by law are those rendered in actions or proceedings before the
over the nature of suit, and that the complaint states no cause of action. 8 COMELEC and taken cognizance of by the said body in the exercise of its
adjudicatory or quasi-judicial powers.
Acting on the motion (to dismiss), the respondent Judge issued the questioned
Order dismissing Civil Case No. 77972. Filipinas motion for reconsideration It cannot be gainsaid that the powers vested by the Constitution and the law on
was denied for lack of merit. the Commission on Elections may either be classified as those pertaining to its
adjudicatory or quasi-judicial functions, or those which are inherently
Hence, the instant appeal. administrative and sometimes ministerial in character.

In the meantime, since no restraining order had been issued against the holding Thus in the case of Masangcay v. Commission on Elections, G.R. No. L-13827,
of the national elections scheduled on November 11, 1969, Acme complied with September 28, 1962 (6 SCRA 27, 2829), We held that
its contract with the COMELEC.
". . . (W)e had the occasion to stress in the case of Guevarra v. Commission on
On this score alone, this petition should be dismissed for being moot and Elections (G.R. No. L-12596, July 31, 1958) that under the law and the
academic. Considering however the nature and importance of the legal constitution, the Commission on Elections has not only the duty to enforce and
questions raised, We have opted to discuss and resolve the same with finality. administer all laws relative to the conduct of elections, but also the power to
try, hear and decide any controversy that may be submitted to it in connection
Two main issues are raised before Us, namely:chanrob1es virtual 1aw library with the elections. In this sense, We said, the Commission, although it cannot
be classified as a court of justice within the meaning of the Constitution (Sec.
1. Whether or not the lower court has jurisdiction to take cognizance of a suit 30, Article VIII), for it is merely an administrative body, may, however,
involving an order of the COMELEC dealing with an award of contract arising exercise quasi-judicial functions insofar as controversies that by express
from its invitation to bid; and provision of law come under its jurisdiction. The difficulty lies in drawing the
demarcation line between the duty which inherently is administrative in
2. Whether or not Filipinas, the losing bidder, has a cause of action under the character and a function which calls for the exercise of the quasi-judicial
30
function of the Commission. In the same case, we also expressed the view that
when the Commission exercises a ministerial function it cannot exercise the
power to punish for contempt because such power is inherently judicial in
nature . . ."cralaw virtua1aw library
We agree with petitioners contention that the order of the Commission granting
the award to a bidder is not an order rendered in a legal controversy before it
wherein the parties filed their respective pleadings and presented evidence after
which the questioned order was issued; and that this order of the commission
was issued pursuant to its authority to enter into contracts in relation to election
purposes. In short, the COMELEC resolution awarding the contract in favor of
Acme was not issued pursuant to its quasi-judicial functions but merely as an
incident of its inherent administrative functions over the conduct of elections,
and hence, the said resolution may not be deemed as a "final order" reviewable
by certiorariby the Supreme Court. Being non-judicial in character, no
contempt may be imposed by the COMELEC from said order, and no direct
and exclusive appeal by certiorari to this Tribunal lie from such order. Any
question arising from said order may be well taken in an ordinary civil action
before the trial courts.
On the second issue, We rule that Filipinas, the losing bidder, has no cause of
action under the premises to enjoin the COMELEC from pursuing its contract
with Acme, the winning bidder.
While it may be true that the lower court has the jurisdiction over controversies
dealing with the COMELECs award of contracts, the same being purely
administrative and civil in nature, nevertheless, herein petitioner has no cause
of action on the basis of the allegations of its complaint.
Indeed, while the law requires the exercise of sound discretion on the part of
procurement authorities, 10 and that the reservation to reject any or all bids may
not be used as a shield to a fraudulent award, 11 petitioner has miserably failed
to prove or substantiate the existence of malice or fraud on the part of the public
respondents in the challenged award.
The COMELECs Invitation to Bid No. 127, dated September 16, 1969,
expressly stipulates
"8. AWARD OF CONTRACT
Subject to the rights herein reserved, award shall be made by the Commission
by resolution to the lowest and responsible bidder whose offer will best serve
the interest of the Commission on Elections. The resolution of the Commission
shall be communicated in writing to the winning bidder. The winning bidder or
awardees shall enter into contract with the Commission on Elections for the
supply of the voting booths under the terms and conditions embodied in the
Invitation to Bid.
THE COMMISSION ON ELECTIONS RESERVES THE RIGHT TO
REJECT ANY OR ALL BIDS; TO WAIVE ANY INFORMATION
THEREIN; OR TO ACCEPT SUCH BID AS MAY IN ITS DISCRETION BE
CONSIDERED MOST REASONABLE AND ADVANTAGEOUS. The right
is also reserved to reject bids which are defective due to inadequate preparation,
omission or lacks sufficient data, guarantee and other information required to
be submitted, or bids without the accompanying bond. The right is further
reserved to reject the bid of a bidder who had previously failed to perform
properly or to deliver on time materials covered by contract of similar nature.
x x x contract as against a higher bidder (Colorado Paving Co. v. Murphy, (CCA 8th)
"14. THIS CALL FOR BIDS IS NO MORE THAN AN INVITATION TO
MAKE PROPOSALS AND THE COMMISSION ON ELECTIONS IS NOT
BOUND TO ACCEPT ANY BID, NOR SHALL THE CALL FOR BIDS BY
ITSELF CONFER A RIGHT TO ANY BIDDER TO ACTION FOR
DAMAGES OR UNREALIZED OR EXPECTED PROFITS UNLESS THE
BID IS DULY ACCEPTED BY THE RESOLUTION OF THE COMMISSION
ON ELECTIONS." 12 (Emphasis supplied)
The "Bidders Tender Call No. 127", the form accomplished by the bidder
pursuant to Invitation to Bid No. 127, also categorically provide that the bidder
submits his proposals "subject to the conditions stated in the invitation." 13
It is crystal clear from the aforequoted conditions, that subject to the rights of
the COMELEC duly reserved in the said Invitation, award shall be made to the
lowest and responsible bidder whose offer will best serve the interest of the
COMELEC; that the COMELEC had reserved the right, among others, to
accept such bid, as may in its discretion, be considered most reasonable and
advantageous; and that the invitation was merely a call for proposals.
Consequently, the COMELEC was not under legal obligation to accept any bid
since "Advertisements for bidders are simply invitation to make proposals and
the advertiser is not bound to accept the highest or lowest bidder, unless the
contrary appears." 14
Pursuant to COMELECs Invitation to Bid No. 127, a bidder may have the right
to demand damages, or unrealized or expected profits, only when his bid was
accepted by resolution of the COMELEC. Filipinas bid, although
recommended for award of contract by the bidding committee, was not the
winning bid. No resolution to that effect appeared to have been issued by the
COMELEC. Decidedly then, Filipinas has no cause of action.
In Leoquinco v. Postal Savings Bank, 47 Phil. 772, 774-775, this Court
held:jgc:chanrobles.com.ph
". . . (A)ppellant set forth and admitted in his pleadings in the regulation adopted
by the Board of Directors authorizing the sale at public auction of the land, as
well as the notice announcing the auction that appellant had expressly reserved
to themselves the right to reject any and all bids. By taking part in the auction
and offering his bid, the appellant voluntarily submitted to the terms and
conditions of the auction sale announced in the notice, and clearly
acknowledged the right reserved to the appellees. The appellees, making use of
that right, rejected his offer. Clearly the appellant has no ground of action to
compel them to execute a deed of sale of the land in his favor, nor to compel
them to accept his bid or offer . . ."cralaw virtua1aw library
In issuing the resolution awarding the contract for voting booths in Acmes
favor, the Commissioners of the COMELEC had taken into account that
Acmes bid was the lowest; that Acme was a responsible manufacturer; and that
upon an ocular inspection of the samples submitted by the bidders, Acmes
sample was favorable chosen subject to certain conditions cited in the
resolution. In fine, the public respondents properly exercised its sound
discretion in making the award.
Once more, We reiterate the dictum earlier laid down in the case of Jalandoni
v. National Resettlement and Rehabilitation Administration, Et Al., G.R. No.
L-15198, May 30, 1960 (108 Phil. 486, 491-492) that
"Neither can it be contented that the fact that appellant gave the lowest
quotation, which was favorably indorsed by the Committee on Bids, created a
vested right in favor of the said bidder. Admittedly, the offers were rejected by
the Bound of Directors. It is clear therefore that there having no meeting of the
minds of the parties, there was no perfected contract between them which could
be the basis of action against the defendants-appellees.
The presentation by a reliable and responsible bidder of the lowest bid to
officials whose duty it is to let the contract to the lowest reliable and responsible
bidder, but who have the right and have given notice that they reserve the right
to reject any and all bids, does not constitute an agreement that they will make
a contract with such a bidder, nor vest in him such an absolute right to the
78 F. 28, 37 LRA 630).
The mere determination of a public official or bound to accept the proposal of
a bidder does not constitute a contract (Smithmeyer v. United States, 147 U.S.
342, 37 L, ed. 196,13 S. Ct. 321); the decision must be communicated to the
bidder (Cedur Rapids Lumber Co. v. Fischer, 129 Iowa 332, 105 N.W. 595, 4
LRA (NS) 177).
No contractual relation can arise merely from a bid, unless by the terms of the
statute and the advertisement, a bid in pursuance thereof is, as a matter of law,
an acceptance of an offer, wholly apart from any action on the part of the
municipality or any of its officers (Molloy v. Rochelle, supra)."cralaw
virtua1aw library
31
WHEREFORE, finding the instant petition to be without merit aside from being
moot and academic, the same is hereby DISMISSED.

No pronouncement as to costs.

SO ORDERED.

32
G.R. No. 135468 May 31, 2000
DIOSCORO O. ANGELIA, petitioner,
vs.
COMMISSION ON ELECTIONS and FLORENTINO R.
TAN, respondents.
MENDOZA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Civil Procedure
to set aside the resolution, dated August 18, 1998, of the Commission on
Elections en banc annulling the proclamation of petitioner as member of the
Sangguniang Bayan of Abuyog, Leyte and ordering the Municipal Board of
Canvassers of said municipality to make the necessary corrections in the
election returns of Precinct Nos. 84-A/84-A-1 and Precinct No. 23-A and,
thereafter, proclaim the winning candidate or candidates for the Sangguniang
Bayan.
The facts of the instant case are as follows:
Petitioner Dioscoro O. Angelia and private respondent Florentino R. Tan were
candidates for the position of member of the Sangguniang Bayan of Abuyog,
Leyte in the elections held on May 11, 1998. After the canvass of votes on May
13, 1998, the Municipal Board of Canvassers proclaimed the following as the
duly elected members of the Sangguniang Bayan:1
Winning Candidates Votes Obtained
1. Placido A. Deloy 9,681
2. Emmanuel L. Gacis 9,164
3. Edmundo P. Sano 8,720
4. Clementino Rudas 8,277
5. Francis Raymundo Realino 8,173
6. Carmelita P. Piscos 7,898
7. Marcelo G. Ganoza 7,835
8. Dioscoro O. Angelia 7,765
Private respondent, who received a total of 7,761 votes four votes less than
those obtained by petitioner ranked ninth among the candidates.
On May 25, 1998, private respondent filed a petition for quo warranto with the
Regional Trial Court, Abuyog, Leyte against petitioner, alleging that in Precinct
Nos. 84-A/84-A-1, he was credited with only 82 votes, when he actually
obtained 92, while in Precinct No. 23-A, petitioner was credited with 18 votes,
when he actually garnered only 13 votes. According to private respondent, he
actually received a total of 7,771 votes, while petitioner actually garnered 7,760
votes.
On June 12, 1998 petitioner took his oath and assumed office as member of the
Sangguniang Bayan.
On June 23, 1998, private respondent filed a motion to withdraw his petition.
Subsequently, he filed a petition for annulment of proclamation of petitioner
with the COMELEC. He attached to the petition a copy of Election Return No.
3700088 from Precinct Nos. 84-A/84-A-1, which he claims showed a tally of
92 votes for him but indicated a corresponding total in words and figures of
only 82 votes.2 He also submitted a copy of Election Return No. 3700023,
which allegedly showed a tally of only 13 votes for petitioner but indicated a
corresponding total in words and figures of 18 votes.3 He presented the
affidavit4 of Alma Duavis, the poll clerk of Precinct Nos. 84-A/84-A-1, stating
that she inadvertently entered in Election Return No. 3700088 only 82 instead
of 92 as the total number of votes received by private respondent, and the
affidavit5 of Chona Fernando, the poll clerk of Precinct No. 23-A, stating that
through oversight, in Election Return No. 3700023, she indicated 18 instead of
13 as the total votes obtained by petitioner. In addition, private respondent
submitted to the COMELEC the affidavit6 of Susan Matugas, the chairperson
of the Board of Election Inspectors of Precinct Nos. 84-A/84-A-1,
corroborating the affidavit of Duavis.
In the resolution, dated August 18, 1998, the COMELEC annulled the
proclamation of petitioner as member of the Sangguniang Bayan and ordered
the Municipal Board of Canvassers to make the necessary corrections in the
election returns from Precinct Nos. 84-A/ 84-A-1 and Precinct No. 23-A and,
thereafter, to proclaim the winning candidate or candidates on the basis of the
amended results. The resolution of the COMELEC reads:
On the basis of the documents thus presented and taking into consideration the
admission of the Board of Election Inspectors of Precinct Nos. 84-A and 84-A-
1, Barangay Dingle, as well as the Chairman of the BEI of Precinct No. 23, the
Commission En Banc hereby RULES to GRANT the Petition. Petitioner had
correctly availed of the procedure provided for under Section 5 Rule 27 of the
COMELEC Rules which prescribes:
Pre-proclamation controversies which may be filed directly with the
Commission (a) The following pre-proclamation controversies may be filed
directly with the Commission:
xxx xxx xxx
(2) When the issue involves the correction of manifest errors in the tabulation
or tallying of the results during the canvassing as . . . . (3) there had been a
mistake in the copying of the figures into the statement of votes or into the
certificate of canvass . . . and such errors could not have been discovered during
the canvassing despite the exercise of due diligence and proclamation of the
winning candidates had already been made.
Indeed, the error committed is manifest in that in Resolution No. 2962 (General
Instructions for Municipal/City/Provincial and District Boards of Canvassers in
Connection with the May 11, 1998 Elections) it was clearly directed:
In case there exist discrepancies in the votes of any candidate in taras/tally as
against the votes obtained in words/figures in the same returns/certificate, the
votes in taras/tally shall prevail.
Clearly, rectification of the error is called for, if We are to give life to the will
of the electorate. Moreover, it is purely administrative and "It does not involve
any opening of the ballot box, examination and appreciation of ballots and/or
election returns. As said error was discovered after proclamation, all that is
required is to convene the board of canvassers to rectify the error it
inadvertently committed in order that the true will of the voters will be
effected." (Tatlonghari vs. Commission on Elections, 199 SCRA 849)
WHEREFORE, premises considered, the Commission En Banc hereby
ANNULS the proclamation of Dioscoro Angelia, the same being based on an
erroneous tally and DIRECTS the Municipal Board of Canvassers of Abuyog,
Leyte, to RECONVENE within five (5) days from receipt hereof and effect the
corrections in the total number of votes received by the candidates in Precinct
Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter
PROCLAIM the winning candidate/s for Municipal Kagawad based on the
corrected results.
Accordingly, the Municipal Board of Canvassers reconvened on September 1,
1998 and, after making the necessary corrections in the election returns,
proclaimed private respondent a member of the Sangguniang Bayan.
Petitioner filed a motion for reconsideration alleging that he was not given due
notice and hearing. Then, without waiting for the resolution of his motion, he
filed the instant petition for certiorari, alleging, as the sole assignment of error,
the following:
WITH DUE RESPECT, PUBLIC RESPONDENT COMELEC GRAVELY
ERRED AND VIOLATED PETITIONER'S CONSTITUTIONAL RIGHT TO
DUE PROCESS WHEN IT PASSED THE AUGUST 18, 1998 RESOLUTION
ANNULLING HIS PROCLAMATION AND RECONVENING THE
MUNICIPAL BOARD OF CANVASSERS WITHOUT PRIOR NOTICE
AND HEARING.
The petition has no merit and should be dismissed, but before we do so, certain
preliminary questions raised by the parties must first be disposed of.
33
First. Respondents contend that the instant petition should be dismissed for
being premature, because petitioner has a pending motion for reconsideration
of the resolution, dated August 18, 1998, of the COMELEC.
We hold that petitioner acted correctly in filing the present petition because the
resolution of the COMELEC in question is not subject to reconsideration and,
therefore, any party who disagreed with it had only one recourse, and that was
to file a petition for certiorari under Rule 65 of the Rules of Civil
Procedure.7 Rule 13, 1 of the COMELEC Rules of Procedure provides:
What Pleadings are Not Allowed. The following pleadings are not allowed:
xxx xxx xxx
d) motion for reconsideration of an en banc ruling, resolution, order or decision
except in election offense cases;
xxx xxx xxx
As the case before the COMELEC did not involve an election offense,
reconsideration of the COMELEC resolution was not possible and petitioner
had no appeal or any plain, speedy, and adequate remedy in the ordinary course
of law. For him to wait until the COMELEC denied his motion would be to
allow the reglementary period for filing a petition for certiorari with this Court
to run and expire.
The COMELEC contends that petitioner should not be allowed to speculate on
the outcome of his motion for reconsideration, which he has not formally
withdrawn. Indeed, it would have been more appropriate for petitioner to first
withdraw his motion for reconsideration in the COMELEC before filing the
present petition. Nevertheless, the filing by petitioner of the instant petition and
his reply to the comments of respondents where he admitted that, except in
cases involving election offenses, a motion for reconsideration of a decision of
the COMELEC en banc is a prohibited pleading8 sufficiently indicated his
intention to abandon his motion for reconsideration.
Second. Petitioner alleges that private respondent failed to serve him a copy of
the petition for annulment of proclamation filed with the COMELEC. In reply,
private respondent submitted the registry receipt and the return card9 to prove
that a copy of the said petition was received on June 26, 1998 by a certain Tudila
M. Angelia on behalf of petitioner. Petitioner admits the receipt of said mail,
but avers that it did not contain a copy of the petition for annulment of
proclamation in the COMELEC but of the petition for quo warranto filed by
private respondent in the Regional Trial Court, Abuyog, Leyte. 10 As private
respondent points out, however, the petition for quo warranto was filed by his
former counsel, the Martinez & Martinez Law Office, and a copy of said
petition was already sent to petitioner. On the other hand, the petition for
annulment of proclamation was filed by his new counsel, the Astorga &
Macamay Law Office. Since a copy of the petition for quo warranto had
previously been served on petitioner, there could be no reason for private
respondent's new counsel to serve it again on petitioner.
Petitioner likewise claims that private respondent engaged in forum-shopping
because, after filing a petition for quo warranto with the Regional Trial Court,
Abuyog, Leyte, private respondent filed the present petition for annulment of
proclamation with the COMELEC.
This contention is bereft of merit. First, private respondent withdrew the quo
warranto case before filing the petition for annulment of proclamation. Second,
while the filing of a petition for quo warranto precludes the subsequent filing
of a pre-proclamation controversy, this principle admits of several exceptions,
such as when such petition is not the proper remedy. 11 Under 253 of the
Omnibus Election Code, the grounds for a petition for quo warranto are
ineligibility or disloyalty to the Republic of the Philippines of the respondent.
Since in the present case, private respondent alleged the existence of manifest
errors in the preparation of election returns, clearly, the proper remedy is not a
petition for quo warranto but a petition for annulment of proclamation.
Third. Petitioner further contends that he was denied procedural due process
because the COMELEC issued its resolution without notice and hearing.
Indeed, it appears that the Municipal Board of Canvassers and the COMELEC
did not comply with the procedure that should have been followed in the instant
case.
In Castromayor v. COMELEC, 12 the returns from a precinct were overlooked
by the Municipal Board of Canvassers in computing the total number of votes
obtained by the candidates for the position of member of the Sangguniang
Bayan, for which reason the COMELEC directed the Municipal Board of
Canvassers to make the necessary corrections. We held that, as the case
involved a manifest error, although the COMELEC erred in annulling the
proclamation of petitioner without notice and hearing, the expedient course of
action was for the Municipal Board of Canvassers to reconvene and, after notice
and hearing in accordance with Rule 27, 7 of the COMELEC Rules of
Procedure, to effect the necessary corrections on the certificate of canvass and
proclaim the winning candidate or candidates on the basis thereof.
Said Rule 27, 7 of the COMELEC Rules of Procedure states:
Correction of Errors in Tabulation or Tallying of Results by the Board of
Canvassers. (a) Where it is clearly shown before proclamation that manifest
errors were committed in the tabulation or tallying of election returns, or
certificates of canvass, during the canvassing as where (1) a copy of the election
returns of one precinct or two or more copies of a certificate of canvass were
tabulated more than once, (2) two copies of the election returns or certificate of
canvass were tabulated separately, (3) there was a mistake in the adding or
copying of the figures into the certificate of canvass or into the statement of
votes by precinct, or (4) so-called election returns from non-existent precincts
were included in the canvass, the board may motu proprio, or upon verified
petition by any candidate, political party, organization or coalition of political
parties, after due notice and hearing, correct the errors committed.
(b) The order for correction must be made in writing and must be promulgated.
(c) Any candidate, political party, organization or coalition of political parties
aggrieved by said order may appeal therefrom to the Commission within
twenty-four (24) hours from the promulgation.
(d) Once an appeal is made, the board of canvassers shall not proclaim the
winning candidates, unless their votes are not affected by the appeal.
(e) The appeal must implead as respondents the Board of Canvassers concerned
and all parties who may be adversely affected thereby.
(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith
issue summons, together with a copy of the appeal, to the respondents.
(g) The Clerk of Court concerned shall immediately set the appeal for hearing.
(h) The appeal shall be heard and decided by the Commission en banc.
This case likewise involves manifest errors. Election Return No. 3700088 from
Precinct Nos. 84-A/84-A-1 is claimed to show 92 votes in favor of private
respondent but indicate a total in words and figures of only 82 votes. On the
other hand, Election Return No. 3700023 allegedly shows 13 votes for
petitioner but indicates in words and figures 18 votes. These discrepancies can
be easily resolved without opening the ballot boxes and recounting the ballots.
COMELEC Resolution No. 2962 provides that "in case there exist
discrepancies in the votes of any candidate in taras/tally as against the votes
obtained in words/figures in the same returns/certificates, the votes in taras/tally
shall prevail."
In the present case, although the COMELEC annulled the proclamation of
petitioner, it merely directed the Municipal Board of Canvassers to
"RECONVENE within five (5) days from receipt hereof and effect the
corrections in the total number of votes received by the candidates in Precinct
Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter
PROCLAIM the winning candidate/s for Municipal Kagawad based on the
corrected results." It was the Municipal Board of Canvassers which the
COMELEC ordered to actually effect the necessary corrections, if any, in the
said election returns and, on the basis thereof, proclaim the winning candidate
or candidates as member or members of the Sangguniang Bayan. In accordance
with our ruling in Castromayor, the expedient action to take is to direct the
Municipal Board of Canvassers to reconvene and, after notice and hearing in
accordance with Rule 27, 7 of the COMELEC Rules of Procedure, to effect
the necessary corrections, if any, in the election returns and, on the basis thereof,
proclaim the winning candidate or candidates as member or members of the
Sangguniang Bayan.
34
WHEREFORE, the en banc resolution, dated August 18, 1998 of the
Commission on Elections is AFFIRMED with the MODIFICATION that the
Municipal Board of Canvassers of Abuyog, Leyte is ordered to reconvene and,
after notice to the parties and hearing in accordance with Rule 27, 7 of the
COMELEC Rules of Procedure, to effect the necessary corrections, if any, in
Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1 and Election
Return No. 3700023 from Precinct No. 23-A and, based on the amended results,
proclaim the winning candidate or candidates as member or members of the
Sangguniang Bayan of said municipality.

SO ORDERED.

35
G.R. No. 151914 July 31, 2002
TEODULO M. COQUILLA, petitioner,
vs.
THE HON. COMMISSION ON ELECTIONS and MR. NEIL M.
ALVAREZ, respondents.
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution,1 dated July 19, 2001,
of the Second Division of the Commission on Elections (COMELEC), ordering
the cancellation of the certificate of candidacy of petitioner Teodulo M.
Coquilla for the position of mayor of Oras, Eastern Samar in the May 14, 2001
elections and the order, dated January 30, 2002, of the COMELEC en
banc denying petitioners motion for reconsideration.
The facts are as follows:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras,
Eastern Samar. He grew up and resided there until 1965, when he joined the
United States Navy. He was subsequently naturalized as a U.S. citizen. 2 From
1970 to 1973, petitioner thrice visited the Philippines while on leave from the
U.S. Navy.3 Otherwise, even after his retirement from the U.S. Navy in 1985,
he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a
residence certificate, although he continued making several trips to the United
States, the last of which took place on July 6, 2000 and lasted until August 5,
2000.4 Subsequently, petitioner applied for repatriation under R.A. No. 81715 to
the Special Committee on Naturalization. His application was approved on
November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of
the Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on
November 10, 2000 and Bureau of Immigration Identification Certificate No.
115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of Butnga,
Oras, Eastern Samar. His application was approved by the Election Registration
Board on January 12, 2001.6 On February 27, 2001, he filed his certificate of
candidacy stating therein that he had been a resident of Oras, Eastern Samar for
"two (2) years."7
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor
of Oras and who was running for reelection, sought the cancellation of
petitioners certificate of candidacy on the ground that the latter had made a
material misrepresentation in his certificate of candidacy by stating that he had
been a resident of Oras for two years when in truth he had resided therein for
only about six months since November 10, 2000, when he took his oath as a
citizen of the Philippines.
The COMELEC was unable to render judgment on the case before the elections
on May 14, 2001. Meanwhile, petitioner was voted for and received the highest
number of votes (6,131) against private respondents 5,752 votes, or a margin
of 379 votes. On May 17, 2001, petitioner was proclaimed mayor of Oras by
the Municipal Board of Canvassers.8 He subsequently took his oath of office.
On July 19, 2001, the Second Division of the COMELEC granted private
respondents petition and ordered the cancellation of petitioners certificate of
candidacy on the basis of the following findings:
Respondents frequent or regular trips to the Philippines and stay in Oras,
Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be
considered as a waiver of his status as a permanent resident or immigrant . . . of
the U.S.A. prior to November 10, 2000 as would qualify him to acquire the
status of residency for purposes of compliance with the one-year residency
requirement of Section 39(a) of the Local Government Code of 1991 in relation
to Sections 65 and 68 of the Omnibus Election Code. The one (1) year residency
requirement contemplates of the actual residence of a Filipino citizen in the
constituency where he seeks to be elected.
All things considered, the number of years he claimed to have resided or stayed
in Oras, Eastern Samar since 1985 as an American citizen and permanent
resident of the U.S.A. before November 10, 2000 when he reacquired his
Philippine citizenship by [repatriation] cannot be added to his actual residence
thereat after November 10, 2000 until May 14, 2001 to cure his deficiency in
days, months, and year to allow or render him eligible to run for an elective
office in the Philippines. Under such circumstances, by whatever formula of
computation used, respondent is short of the one-year residence requirement
before the May 14, 2001 elections.9
Petitioner filed a motion for reconsideration, but his motion was denied by the
COMELEC en banc on January 30, 2002. Hence this petition.
I.
Two questions must first be resolved before considering the merits of this case:
(a) whether the 30-day period for appealing the resolution of the COMELEC
was suspended by the filing of a motion for reconsideration by petitioner and
(b) whether the COMELEC retained jurisdiction to decide this case
notwithstanding the proclamation of petitioner.
A. With respect to the first question, private respondent contends that the
petition in this case should be dismissed because it was filed late; that the
COMELEC en banc had denied petitioners motion for reconsideration for
being pro forma; and that, pursuant to Rule 19, 4 of the COMELEC Rules of
Procedure, the said motion did not suspend the running of the 30-day period for
filing this petition. He points out that petitioner received a copy of the
resolution, dated July 19, 2001, of the COMELECs Second Division on July
28, 2001, so that he had only until August 27, 2001 within which to file this
petition. Since the petition in this case was filed on February 11, 2002, the same
should be considered as having been filed late and should be dismissed.
Private respondents contention has no merit.
Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:
Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider
a decision, resolution, order, or ruling of a Division shall be filed within five
days from the promulgation thereof. Such motion, if not pro-forma, suspends
the execution for implementation of the decision, resolution, order, or ruling.
Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion
to reconsider a decision, resolution, order, or ruling, when not pro-forma,
suspends the running of the period to elevate the matter to the Supreme Court.
The five-day period for filing a motion for reconsideration under Rule 19, 2
should be counted from the receipt of the decision, resolution, order, or ruling
of the COMELEC Division.10 In this case, petitioner received a copy of the
resolution of July 19, 2001 of the COMELECs Second Division on July 28,
2001. Five days later, on August 2, 2001, he filed his motion for
reconsideration. On February 6, 2002, he received a copy of the order, dated
January 30, 2002, of the COMELEC en banc denying his motion for
reconsideration. Five days later, on February 11, 2002, he filed this petition for
certiorari. There is no question, therefore, that petitioners motion for
reconsideration of the resolution of the COMELEC Second Division, as well as
his petition for certiorari to set aside of the order of the COMELEC en
banc, was filed within the period provided for in Rule 19, 2 of the COMELEC
Rules of Procedure and in Art. IX(A), 7 of the Constitution.
It is contended, however, that petitioners motion for reconsideration before the
COMELEC en banc did not suspend the running of the period for filing this
petition because the motion was pro forma and, consequently, this petition
should have been filed on or before August 27, 2001. It was actually filed,
however, only on February 11, 2002. Private respondent cites the finding of the
COMELEC en banc that
An incisive examination of the allegations in the Motion for Reconsideration
shows that the same [are] a mere rehash of his averments contained in
his Verified Answer and Memorandum. Neither did respondent raise new
matters that would sufficiently warrant a reversal of the assailed resolution of
the Second Division. This makes the said Motion pro forma.11
We do not think this contention is correct. The motion for reconsideration was
not pro forma and its filing did suspend the period for filing the petition for
certiorari in this case. The mere reiteration in a motion for reconsideration of
the issues raised by the parties and passed upon by the court does not make a
motion pro forma; otherwise, the movants remedy would not be a
reconsideration of the decision but a new trial or some other remedy.12 But, as
we have held in another case:13
36
Among the ends to which a motion for reconsideration is addressed, one is
precisely to convince the court that its ruling is erroneous and improper,
contrary to the law or the evidence; and in doing so, the movant has to dwell of
necessity upon the issues passed upon by the court. If a motion for
reconsideration may not discuss these issues, the consequence would be that
after a decision is rendered, the losing party would be confined to filing only
motions for reopening and new trial.
Indeed, in the cases where a motion for reconsideration was held to be pro
forma, the motion was so held because (1) it was a second motion for
reconsideration,14 or (2) it did not comply with the rule that the motion must
specify the findings and conclusions alleged to be contrary to law or not
supported by the evidence,15 or (3) it failed to substantiate the alleged
errors,15 or (4) it merely alleged that the decision in question was contrary to
law,17 or (5) the adverse party was not given notice thereof. 18 The 16-page
motion for reconsideration filed by petitioner in the COMELEC en banc suffers
from none of the foregoing defects, and it was error for the COMELEC en
banc to rule that petitioners motion for reconsideration was pro forma because
the allegations raised therein are a mere "rehash" of his earlier pleadings or did
not raise "new matters." Hence, the filing of the motion suspended the running
of the 30-day period to file the petition in this case, which, as earlier shown,
was done within the reglementary period provided by law.
B. As stated before, the COMELEC failed to resolve private respondents
petition for cancellation of petitioners certificate of candidacy before the
elections on May 14, 2001. In the meantime, the votes were canvassed and
petitioner was proclaimed elected with a margin of 379 votes over private
respondent. Did the COMELEC thereby lose authority to act on the petition
filed by private respondent?
R.A. No. 6646 provides:
SECTION 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added)
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to petitions to
deny due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
The rule then is that candidates who are disqualified by final judgment before
the election shall not be voted for and the votes cast for them shall not be
counted. But those against whom no final judgment of disqualification had been
rendered may be voted for and proclaimed, unless, on motion of the
complainant, the COMELEC suspends their proclamation because the grounds
for their disqualification or cancellation of their certificates of candidacy are
strong. Meanwhile, the proceedings for disqualification of candidates or for the
cancellation or denial of certificates of candidacy, which have been begun
before the elections, should continue even after such elections and proclamation
of the winners. In Abella v. COMELEC19 and Salcedo II v. COMELEC,20 the
candidates whose certificates of candidacy were the subject of petitions for
cancellation were voted for and, having received the highest number of votes,
were duly proclaimed winners. This Court, in the first case, affirmed and, in the
second, reversed the decisions of the COMELEC rendered after the
proclamation of candidates, not on the ground that the latter had been divested
of jurisdiction upon the candidates proclamation but on the merits.
II.
On the merits, the question is whether petitioner had been a resident of Oras,
Eastern Samar at least one (1) year before the elections held on May 14, 2001
as he represented in his certificate of candidacy. We find that he had not.
First, 39(a) of the Local Government Code (R.A No. 7160) provides:
Qualifications. - (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding the day of the
election; and able to read and write Filipino or any other local language or
dialect. (Emphasis added)
The term "residence" is to be understood not in its common acceptation as
referring to "dwelling" or "habitation,"21but rather to "domicile" or legal
residence,22 that is, "the place where a party actually or constructively has his
permanent home, where he, no matter where he may be found at any given time,
eventually intends to return and remain (animus manendi)."23 A domicile of
origin is acquired by every person at birth. It is usually the place where the
childs parents reside and continues until the same is abandoned by acquisition
of new domicile (domicile of choice).24
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a
U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until
November 10, 2000, when he reacquired Philippine citizenship, petitioner was
an alien without any right to reside in the Philippines save as our immigration
laws may have allowed him to stay as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a
U.S. citizen. Title 8, 1427(a) of the United States Code provides:
Requirements of naturalization. Residence
(a) No person, except as otherwise provided in this subchapter, shall be
naturalized unless such applicant, (1) immediately preceding the date of filing
his application for naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for at least five years
and during the five years immediately preceding the date of filing his petition
has been physically present therein for periods totaling at least half of that time,
and who has resided within the State or within the district of the Service in the
United States in which the applicant filed the application for at least three
months, (2) has resided continuously within the United States from the date of
the application up to the time of admission to citizenship, and (3) during all the
period referred to in this subsection has been and still is a person of good moral
character, attached to the principles of the Constitution of the United States, and
well disposed to the good order and happiness of the United States. (Emphasis
added)
In Caasi v. Court of Appeals,25 this Court ruled that immigration to the United
States by virtue of a "greencard," which entitles one to reside permanently in
that country, constitutes abandonment of domicile in the Philippines. With more
reason then does naturalization in a foreign country result in an abandonment
of domicile in the Philippines.
Nor can petitioner contend that he was "compelled to adopt American
citizenship" only by reason of his service in the U.S. armed forces. 26 It is
noteworthy that petitioner was repatriated not under R.A. No. 2630, which
applies to the repatriation of those who lost their Philippine citizenship by
accepting commission in the Armed Forces of the United States, but under R.A.
No. 8171, which, as earlier mentioned, provides for the repatriation of, among
others, natural-born Filipinos who lost their citizenship on account of political
or economic necessity. In any event, the fact is that, by having been naturalized
abroad, he lost his Philippine citizenship and with it his residence in the
Philippines. Until his reacquisition of Philippine citizenship on November 10,
2000, petitioner did not reacquire his legal residence in this country.
Second, it is not true, as petitioner contends, that he reestablished residence in
this country in 1998 when he came back to prepare for the mayoralty elections
of Oras by securing a Community Tax Certificate in that year and by
"constantly declaring" to his townmates of his intention to seek repatriation and
run for mayor in the May 14, 2001 elections.27 The status of being an alien and
a non-resident can be waived either separately, when one acquires the status of
a resident alien before acquiring Philippine citizenship, or at the same time
when one acquires Philippine citizenship. As an alien, an individual may obtain
an immigrant visa under 1328 of the Philippine Immigration Act of 1948 and
an Immigrant Certificate of Residence (ICR)29 and thus waive his status as a
non-resident. On the other hand, he may acquire Philippine citizenship by
naturalization under C.A. No. 473, as amended, or, if he is a former Philippine
national, he may reacquire Philippine citizenship by repatriation or by an act of
37
Congress,30 in which case he waives not only his status as an alien but also his
status as a non-resident alien.
In the case at bar, the only evidence of petitioners status when he entered the
country on October 15, 1998, December 20, 1998, October 16, 1999, and June
23, 2000 is the statement "Philippine Immigration [] Balikbayan" in his 1998-
2008 U.S. passport. As for his entry on August 5, 2000, the stamp bore the
added inscription "good for one year stay."31 Under 2 of R.A. No. 6768 (An
Act Instituting a Balikbayan Program), the term balikbayan includes a former
Filipino citizen who had been naturalized in a foreign country and comes or
returns to the Philippines and, if so, he is entitled, among others, to a "visa-free
entry to the Philippines for a period of one (1) year" (3(c)). It would appear
then that when petitioner entered the country on the dates in question, he did so
as a visa-free balikbayan visitor whose stay as such was valid for one year only.
Hence, petitioner can only be held to have waived his status as an alien and as
a non-resident only on November 10, 2000 upon taking his oath as a citizen of
the Philippines under R.A. No. 8171.32 He lacked the requisite residency to
qualify him for the mayorship of Oras, Eastern, Samar.
Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in
support of his contention that the residency requirement in 39(a) of the Local
Government Code includes the residency of one who is not a citizen of the
Philippines. Residency, however, was not an issue in that case and this Court
did not make any ruling on the issue now at bar. The question in Frivaldo was
whether petitioner, who took his oath of repatriation on the same day that his
term as governor of Sorsogon began on June 30, 1995, complied with the
citizenship requirement under 39(a). It was held that he had, because
citizenship may be possessed even on the day the candidate assumes office. But
in the case of residency, as already noted, 39(a) of the Local Government Code
requires that the candidate must have been a resident of the municipality "for at
least one (1) year immediately preceding the day of the election."
Nor can petitioner invoke this Courts ruling in Bengzon III v. House of
Representatives Electoral Tribunal.34 What the Court held in that case was that,
upon repatriation, a former natural-born Filipino is deemed to have recovered
his original status as a natural-born citizen.
Third, petitioner nonetheless says that his registration as a voter of Butnga,
Oras, Eastern Samar in January 2001 is conclusive of his residency as a
candidate because 117 of the Omnibus Election Code requires that a voter
must have resided in the Philippines for at least one year and in the city or
municipality wherein he proposes to vote for at least six months immediately
preceding the election. As held in Nuval v. Guray,35 however, registration as a
voter does not bar the filing of a subsequent case questioning a candidates lack
of residency.
Petitioners invocation of the liberal interpretation of election laws cannot avail
him any. As held in Aquino v. Commission on Elections:36
A democratic government is necessarily a government of laws. In a republican
government those laws are themselves ordained by the people. Through their
representatives, they dictate the qualifications necessary for service in
government positions. And as petitioner clearly lacks one of the essential
qualifications for running for membership in the House of Representatives, not
even the will of a majority or plurality of the voters of the Second District of
Makati City would substitute for a requirement mandated by the fundamental
law itself.
Fourth, petitioner was not denied due process because the COMELEC failed to
act on his motion to be allowed to present evidence. Under 5(d), in relation to
7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial
or cancellation of a certificate of candidacy are summary in nature. The holding
of a formal hearing is thus not de rigeur. In any event, petitioner cannot claim
denial of the right to be heard since he filed a Verified Answer, a Memorandum
and a Manifestation, all dated March 19, 2001, before the COMELEC in which
he submitted documents relied by him in this petition, which, contrary to
petitioners claim, are complete and intact in the records.
III.
The statement in petitioners certificate of candidacy that he had been a resident
of Oras, Eastern Samar for "two years" at the time he filed such certificate is
not true. The question is whether the COMELEC was justified in ordering the
cancellation of his certificate of candidacy for this reason. We hold that it was.
Petitioner made a false representation of a material fact in his certificate of
candidacy, thus rendering such certificate liable to cancellation. The Omnibus
Election Code provides:
SEC. 74. Contents of certificate of candidacy. The certificate of candidacy
shall state that the person filing it is announcing his candidacy for the office
stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political
party to which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain
true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or
purpose of evasion; and that the facts stated in the certificate of candidacy are
true to the best of his knowledge.
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy.
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is
false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen days before the election.
Indeed, it has been held that a candidates statement in her certificate of
candidacy for the position of governor of Leyte that she was a resident of
Kananga, Leyte when this was not so37 or that the candidate was a "natural-
born" Filipino when in fact he had become an Australian citizen 38 constitutes a
ground for the cancellation of a certificate of candidacy. On the other hand, we
held in Salcedo II v. COMELEC39 that a candidate who used her husbands
family name even though their marriage was void was not guilty of
misrepresentation concerning a material fact. In the case at bar, what is involved
is a false statement concerning a candidates qualification for an office for
which he filed the certificate of candidacy. This is a misrepresentation of a
material fact justifying the cancellation of petitioners certificate of candidacy.
The cancellation of petitioners certificate of candidacy in this case is thus fully
justified.
WHEREFORE, the petition is DISMISSED and the resolution of the Second
Division of the Commission on Elections, dated July 19, 2001, and the order,
dated January 30, 2002 of the Commission on Elections en banc are
AFFIRMED.
SO ORDERED.
38
G.R. No. 143398 October 25, 2000
RUPERTO A. AMBIL, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY
SECOND DIVISION) and JOSE T. RAMIREZ, respondents.
DECISION
PARDO, J.:
The case before the Court is a special civil action for certiorari and prohibition
with preliminary injunction or temporary restraining order seeking to nullify
the order dated June 15, 2000 of the Commission on Elections (Comelec), First
Division,1 giving notice to the parties of the promulgation of the resolution on
the case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr.,
Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the afternoon and
to prohibit the respondent Commission on Election from promulgating the so
called "Guiani ponencia."2
The facts are as follows:
Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were
candidates for the position of Governor, Eastern Samar, during the May 11,
1998 elections.3 On May 16, 1998, the Provincial Board of Canvassers
proclaimed Ruperto A. Ambil, Jr. as the duly elected Governor, Eastern Samar,
having obtained 46,547 votes, the highest number of votes in the election
returns.
On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second
highest number of votes, filed with the Comelec, an election
protest4 challenging the results in a total of 201 precincts.5 The case was
assigned to the First Division (formerly Second), Commission on Elections.6
On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a
proposed resolution in the case. To such proposed ponencia, Commissioner
Julio F. Desamito dissented. Commissioner Luzviminda G. Tancangco at first
did not indicate her vote but said that she would "wish to see both positions, if
any, to make her (my) final decision."7
In the meantime, on February 15, 2000, Commissioner Guiani retired from the
service. On March 3, 2000, the President of the Philippines appointed
Commissioner Rufino S. Javier to the seat vacated by Commissioner Guiani.
Commissioner Javier assumed office on April 4, 2000.
On or about February 24, 2000, petitioner Ambil and respondent Ramirez
received a purported resolution promulgated on February 14, 2000, signed by
Commissioner Guiani and Tancangco, with Commissioner Desamito
dissenting. The result was in favor of respondent Ramirez who was declared
winner by a margin of 1,176 votes.8On February 28, 2000, the Comelec, First
Division, declared that the thirteen-page resolution "is a useless scrap of paper
which should be ignored by the parties in this case there being no promulgation
of the Resolution in the instant case." 9
On March 31, 2000, the Comelec, First Division, issued an order setting the
promulgation of the resolution in the case (EPC Case No. 98-29) on April 6,
2000, at 2:00 in the afternoon.10 However, on April 6, 2000, petitioner Ambil
filed a motion to cancel promulgation challenging the validity of the purported
Guiani resolution. The Comelec, First Division, acting on the motion, on the
same date, postponed the promulgation until this matter is resolved.11
On June 14, 2000, two members of the First Division, namely, Commissioners
Luzviminda G. Tancangco and Rufino S. Javier, sent a joint memorandum to
Commissioner Julio F. Desamito, presiding Commissioner, stating:
"Pursuant to your recommendation in your April 18, 2000 Memorandum to the
Commission En Banc that this case be submitted for a reconsultation by the
members of the First Division, it is our position that we promulgate as soon as
possible the Guiani Resolution of the case. This is notwithstanding the Jamil
vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No. 73777) and other
doctrinal cases on the issue. After all, this Commission stood pat on its policy
that what is controlling is the date the ponente signed the questioned Resolution
as what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137).
"In view of the foregoing, we recommend that we proceed with the
promulgation of the subject resolution and let the aggrieved party challenge it
through a Motion for Reconsideration before the Commission en banc or
through a certiorari case before the Supreme Court.12
On June 15, 2000, the Comelec, First Division, through Commissioner Julio F.
Desamito, issued an order setting the promulgation of the resolution in the case
on June 20, 2000, at 2:00 oclock in the afternoon.13
Without waiting for the promulgation of the resolution, on June 19, 2000,
petitioner interposed the instant petition.14
Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the
promulgation of the resolution of the case (EPC Case No. 98-29) on June 20,
2000 at 2:00 in the afternoon, and prohibiting the Comelec, First Division, from
promulgating the purported Guiani resolution and directing the Comelec, First
Division, to deliberate anew on the case and to promulgate the resolution
reached in the case after such deliberation.15
On June 20, 2000, we issued a temporary restraining order enjoining respondent
Comelec from implementing the June 15, 2000 order for the promulgation of
the resolution set on June 20, 2000 at 2:00 in the afternoon. At the same time,
the Court directed the respondents to comment on the petition within ten (10)
days from notice.16
On July 10, 2000, respondent Ramirez filed his comment.17 Respondent
Ramirez admitted that the proposed resolution of Commissioner Guiani was no
longer valid after his retirement on February 15, 2000.18 He submitted that
Comelec, First Division, its membership still constituting a majority, must
elevate the protest case to the Comelec en banc until resolved with finality.19
In his comment filed on August 29, 2000, the Solicitor General interposed no
objection to the petition.20
At issue in this petition is whether Comelec, First Division, in scheduling the
promulgation of the resolution in the case (EPC Case No. 98-29) acted without
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.
We find the petition without merit.
To begin with, the power of the Supreme Court to review decisions of the
Comelec is prescribed in the Constitution, as follows:
"Section 7. Each commission shall decide by a majority vote of all its members
any case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or memorandum
required by the rules of the commission or by the commission itself. Unless
otherwise provided by this constitution or by law, any decision, order, or
ruling of each commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy
thereof."21 [emphasis supplied]
"We have interpreted this provision to mean final orders, rulings and
decisions of the COMELEC rendered in the exercise of its adjudicatory or
quasi-judicial powers."22 This decision must be a final decision or
resolution of the Comelec en banc,23 not of a division,24 certainly not an
interlocutory order of a division.25 The Supreme Court has no power to
review via certiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections.26
The mode by which a decision, order or ruling of the Comelec en banc may be
elevated to the Supreme Court is by the special civil action of certiorari under
Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule
64, 1997 Rules of Civil Procedure, as amended.27
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that
there be no appeal, or any plain, speedy and adequate remedy in the
ordinary course of law. A motion for reconsideration is a plain and adequate
remedy provided by law.28 Failure to abide by this procedural
requirement constitutes a ground for dismissal of the petition.29
In like manner, a decision, order or resolution of a division of the Comelec must
be reviewed by the Comelec en banc via a motion for reconsideration before
39
the final en banc decision may be brought to the Supreme Court on certiorari.
The pre-requisite filing of a motion for reconsideration is mandatory. 30 Article
IX-C, Section 3, 1987 Constitution provides as follows:
"Section 3. The Commission on Elections may sit en banc or in two divisions,
and shall promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies. All such election
cases shall be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission en
banc. [emphasis supplied]
Similarly, the Rules of Procedure of the Comelec provide that a decision of a
division may be raised to the en bancvia a motion for reconsideration.31
The case at bar is an election protest involving the position of Governor, Eastern
Samar.32 It is within the original jurisdiction of the Commission on Elections in
division.33 Admittedly, petitioner did not ask for a reconsideration of the
divisions resolution or final decision.34 In fact, there was really no resolution
or decision to speak of 35 because there was yet no promulgation, which was
still scheduled on June 20, 2000 at 2:00 oclock in the afternoon. Petitioner went
directly to the Supreme Court from an order of "promulgation of the Resolution
of this case" by the First Division of the Comelec.36
Under the existing Constitutional scheme, a party to an election case within the
jurisdiction of the Comelec in division can not dispense with the filing of a
motion for reconsideration of a decision, resolution or final order of the
Division of the Commission on Elections because the case would not reach the
Comelec en banc without such motion for reconsideration having been filed
and resolved by the Division.
The instant case does not fall under any of the recognized exceptions to the rule
in certiorari cases dispensing with a motion for reconsideration prior to the
filing of a petition.37 In truth, the exceptions do not apply to election
cases where a motion for reconsideration is mandatory by Constitutional
fiat to elevate the case to the Comelec en banc, whose final decision is what
is reviewable via certiorari before the Supreme Court.38
We are aware of the ruling in Kho v. Commission on Elections,39 that "in a
situation such as this where the Commission on Elections in division committed
grave abuse of discretion or acted without or in excess of jurisdiction in issuing
interlocutory orders relative to an action pending before it and the controversy
did not fall under any of the instances mentioned in Section 2, Rule 3 of the
COMELEC Rules of Procedure, the remedy of the aggrieved party is not to
refer the controversy to the Commission en banc as this is not permissible under
its present rules but to elevate it to this Court via a petition for certiorari under
Rule 65 of the Rules of Court." This is the case relied upon by the dissenting
justice to support the proposition that resort to the Supreme Court from a
resolution of a Comelec Division is allowed.40 Unfortunately, the Kho case has
no application to the case at bar. The issue therein is, may the Commission on
Elections in division admit an answer with counter-protest after the period
to file the same has expired?41 The Comelec First Division admitted the
answer with counter-protest of the respondent. The Supreme Court declared
such order void for having been issued with grave abuse of discretion
tantamount to lack of jurisdiction.42 However, an important moiety in the Kho
case was not mentioned in the dissent. It is that the Comelec, First
Division, denied the prayer of petitioner for the elevation of the case to en
banc because the orders of admission were mere interlocutory
orders.43 Hence, the aggrieved party had no choice but to seek recourse in the
Supreme Court. Such important fact is not present in the case at bar.
We must emphasize that what is questioned here is the order dated June 15,
2000, which is a mere notice of the promulgation of the resolution in EPC Case
No. 98-29. We quote the order in question in full, to wit:
"Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF
PROCEDURE, and the Joint Memorandum of Commissioners Luzviminda G.
Tancangco and Rufino S. Javier to the Presiding Commissioner of the First
Division dated 14 June 2000 paragraph 5 of which states:
In view of the foregoing, we recommend that we proceed with the promulgation
of the subject resolution and let the aggrieved party challenge it through a
Motion for Reconsideration before the Commission en banc or through a
certiorari case before the Supreme Court.
the promulgation of the Resolution in this case is hereby set on Tuesday, June
20, 2000 at 2:00 oclock in the afternoon at the Comelec Session Hall,
Intramuros, Manila.
No further motion for postponement of the promulgation shall be entertained.
The Clerk of the Commission is directed to give the parties, through their
Attorneys, notice of this Order through telegram and by registered mail or
personal delivery.
"SO ORDERED.
"Given this 15th day of June, 2000 in the City of Manila, Philippines.
FOR THE DIVISION:
[Sgd.] JULIO F. DESAMITO
Presiding Commissioner"44
There is nothing irregular about the order of promulgation of the resolution in
the case, except in the mind of suspicious parties. Perhaps what was wrong in
the order was the reference to the memorandum of the two commissioners that
was not necessary and was a superfluity, or excessus in linguae. All the
members of the Division were incumbent Commissioners of the Commission
on Elections (COMELEC) and had authority to decide the case in the Division.
What appears to be patently null and void is the so-called Guiani resolution if
it is the one to be promulgated. We cannot assume that the Comelec will
promulgate a void resolution and violate the Constitution and the law. We must
assume that the members of the Commission in Division or en banc are sworn
to uphold and will obey the Constitution.
Consequently, the Guiani resolution is not at issue in the case at bar. No one
knows the contents of the sealed envelope containing the resolution to be
promulgated on June 20, 2000, simply because it has not been promulgated!
It may be true that the parties received a copy of what purports to be the Guiani
resolution,45 declaring respondent Jose T. Ramirez the victor in the case. Such
Guiani resolution is admitted by the parties and considered by the Commission
on Elections as void. The Solicitor General submitted an advice that the same
resolution is deemed vacated by the retirement of Commissioner Guiani on
February 15, 2000.46 It can not be promulgated anymore for all legal intents and
purposes.
We rule that the so-called Guiani resolution is void for the following reasons:
First: A final decision or resolution becomes binding only after it is
promulgated and not before. Accordingly, one who is no longer a member of
the Commission at the time the final decision or resolution is promulgated
cannot validly take part in that resolution or decision.47 Much more could he be
the ponente of the resolution or decision. The resolution or decision of the
Division must be signed by a majority of its members and duly promulgated.
Commissioner Guiani might have signed a draft ponencia prior to his
retirement from office, but when he vacated his office without the final decision
or resolution having been promulgated, his vote was automatically
invalidated.48Before that resolution or decision is so signed and
promulgated, there is no valid resolution or decision to speak of.49
Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division,
Commission on Elections, denied the release or promulgation of the Guiani
resolution. He disowned the initials on the face of the first page of the resolution
showing its promulgation on February 14, 2000, and said that it was a forgery.
There is no record in the Electoral Contests and Adjudication Department
(ECAD) of the Commission on Election that a "resolution on the main merits
of the case was promulgated."50
Third: By an order dated February 28, 2000, the Comelec, First
Division, disclaimed the "alleged thirteen (13) page resolution" for being
"a useless scrap of paper which should be ignored by the parties" there
being no promulgation of the resolution in the case.51
Fourth: It is unlikely that Commissioner Tancangco affixed her signature on
the Guiani resolution. On the date that it was purportedly promulgated, which
was February 14, 2000, the Division issued an order where Commissioner
40
Tancangco expressed her reservations and stated that she wished to
see both positions, if any, before she made her final decision.52
A final decision or resolution of the Comelec, in Division or en banc is
promulgated on a date previously fixed, of which notice shall be served in
advance upon the parties or their attorneys personally or by registered
mail or by telegram.53
It is jurisprudentially recognized that at any time before promulgation of a
decision or resolution, the ponente may change his mind. 54 Moreover, in this
case, before a final decision or resolution could be promulgated, the ponente
retired and a new commissioner appointed. And the incoming commissioner
has decided to take part in the resolution of the case. It is presumed that he had
taken the position of his predecessor because he co-signed the request for the
promulgation of the Guiani resolution.55
does not provide a plain, speedy and adequate remedy, and (11) when there are
circumstances indicating the urgency of judicial intervention."60 The
administrative authorities must be given an opportunity to act and correct the
errors committed in the administrative forum.61 Only after administrative
remedies are exhausted may judicial recourse be allowed.62
This case does not fall under any of the exceptions and indeed, as heretofore
stated, the exceptions do not apply to an election case within the jurisdiction of
the Comelec in Division.
Hence, the petition at bar must be dismissed for prematurity. "Failure to exhaust
administrative remedies is fatal to a party's cause of action and a dismissal based
on that ground is tantamount to a dismissal based on lack of cause of action."63
WHEREFORE, the Court hereby DISMISSES the petition for prematurity.

If petitioner were afraid that what would be promulgated by the Division was
the Guiani resolution, a copy of which he received by mail, which, as heretofore
stated, was not promulgated and the signature thereon of the clerk of court was
a forgery, petitioner could seek reconsideration of such patently void resolution
and thereby the case would be elevated to the Commission en banc.56
Considering the factual circumstances, we speculated ex mero motu that the
Comelec would promulgate a void resolution.
"The sea of suspicion has no shore, and the court that embarks upon it is without
rudder or compass."57 We must not speculate that the Comelec would still
promulgate a void resolution despite knowledge that it is invalid or void ab
initio.
The Court orders the Commission on Elections, First Division, to resolve with
all deliberate dispatch Election Protest Case No. 98-29 and to promulgate its
resolution thereon adopted by majority vote within thirty (30) days from notice
hereof.
The temporary restraining order issued on June 20, 2000, is hereby lifted and
dissolved, effective immediately.
No costs.
SO ORDERED.

Consequently, the filing of the instant petition before this Court was premature.
Petitioner failed to exhaust adequate administrative remedies available before
the COMELEC.

In a long line of cases, this Court has held consistently that "before a party is
allowed to seek the intervention of the court, it is a pre-condition that he should
have availed of all the means of administrative processes afforded him. Hence,
if a remedy within the administrative machinery can still be resorted to by
giving the administrative officer concerned every opportunity to decide on a
matter that comes within his jurisdiction, then such remedy should be exhausted
first before the courts judicial power can be sought. The premature invocation
of courts intervention isfatal to ones cause of action."58

"This is the rule on exhaustion of administrative remedies. A motion for

reconsideration then is a pre-requisite to the viability of a special civil action
for certiorari, unless the party who avails of the latter can convincingly show
that his case falls under any of the following exceptions to the rule: (1) when
the question is purely legal, (2) where judicial intervention is urgent, (3) where
its application may cause great and irreparable damage, (4) where the
controverted acts violate due process, (5) failure of a high government official
from whom relief is sought to act on the matter, and seeks when the issue for
non-exhaustion of administrative remedies has been rendered moot."59

"This doctrine of exhaustion of administrative remedies was not without its

practical and legal reasons, for one thing, availment of administrative remedy
entails lesser expenses and provides for a speedier disposition of controversies.
It is no less true to state that the courts of justice for reasons of comity and
convenience will shy away from a dispute until the system of administrative
redress has been completed and complied with so as to give the administrative
agency concerned every opportunity to correct its error and to dispose of the
case. However, we are not amiss to reiterate that the principal of exhaustion of
administrative remedies as tested by a battery of cases is not an ironclad rule.
This doctrine is a relative one and its flexibility is called upon by the peculiarity
and uniqueness of the factual and circumstantial settings of a case. Hence, it is
disregarded (1) when there is a violation of due process, (2) when the issue
involved is purely a legal question, (3) when the administrative action is
patently illegal amounting to lack or excess of jurisdiction, (4) when there is
estoppel on the part of the administrative agency concerned, (5) when there is
irreparable injury, (6) when the respondent is a department secretary whose acts
as an alter ego of the president bears the implied and assumed approval of the
latter, (7) when to require exhaustion of administrative remedies would be
unreasonable, (8) when it would amount to a nullification of a claim, (9) when
the subject matter is a private land in land case proceedings, (10) when the rule

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