G.R. No.

164858             November 16, 2006

HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner, 

CHARMIE Q. BENAVIDES, Petitioner-Intervenor, 
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.

DECISION

Election Law; Disqualification Cases; Intervention; Electoral Reforms Law of 1987

(R.A. No. 6646); The law and the COMELEC rules have clear pronouncements that the
electoral aspect of a disqualification case is not rendered inutile by the death of
petitioner, provided that there is a proper substitution or intervention of parties while
there is a pending case; There is no law or jurisprudence which says that intervention or
substitution may only be done prior to the proclamation of the winning candidate.—The
law and the COMELEC rules have clear pronouncements that the electoral aspect of a
disqualification case is not rendered inutile by the death of petitioner, provided that
there is a proper substitution or intervention of parties while there is a pending case. On
Raymundo’s substitution, any citizen of voting age is competent to continue the action in
Lanot’s stead. On Benavides’ intervention, Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987 (“Electoral Reforms Law of 1987”), allows intervention in
proceedings for disqualification even after elections if no final judgment has been
rendered. Although Eusebio was already proclaimed as Pasig City Mayor, Benavides
could still intervene, as there was still no final judgment in the proceedings for
disqualification. The case for disqualification exists, and survives, the election and
proclamation of the winning candidate because an outright dismissal will unduly reward
the challenged candidate and may even encourage him to employ delaying tactics to
impede the resolution of the disqualification case until after he has been proclaimed. The
exception to the rule of retention of jurisdiction after proclamation applies when the
challenged candidate becomes a member of the House of Representatives or of the
Senate, where the appropriate electoral tribunal would have jurisdiction. There is no law
or jurisprudence which says that intervention or substitution may only be done prior to
the proclamation of the winning candidate. A substitution is not barred by prescription
because the action was filed on time by the person who died and who is being
substituted. The same rationale applies to a petition-inintervention.
Same; Same; Under Section 13 of the COMELEC Rules of Procedure, a decision or
resolution of a Division in a special action becomes final and executory after the lapse of
fifteen days following its promulgation while a decision or resolution of the COMELEC En
Banc becomes final and executory after five days from its promulgation unless
restrained by the Supreme Court.—Lanot’s claim has no basis, especially in light of the
11 May 2004 Resolution of the COMELEC En Banc. The COMELEC En Banc’s explanation
is apt: Suspension of these proceedings is tantamount to an implementation of the
Resolution of the FIRST DIVISION which had not yet become final and executory by
reason of the timely filing of a Motion for Reconsideration thereof. A disposition that has
not yet attained finality cannot be implemented even through indirect means. Moreover,
Chairman Abalos’ 10 May 2004 memorandum is merely an advisory required by the
circumstances at the time. Eusebio filed a motion for reconsideration on 9 May 2004,
and there was not enough time to resolve the motion for reconsideration before the
elections. Therefore, Eusebio was not yet disqualified by final judgment at the time of
the elections. Section 6 of the Electoral Reforms Law of 1987 provides that “[a]
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.” Under Section 13 of the COMELEC
Rules of Procedure, a decision or resolution of a Division in a special action becomes
final and executory after the lapse of fifteen days following its promulgation while a
decision or resolution of the COMELEC En Banc becomes final and executory after five
days from its promulgation unless restrained by this Court.
Same; Same; The electoral aspect of a disqualification case determines whether the
offender should be disqualified from being a candidate or from holding office while the
criminal aspect determines whether there is probable cause to charge a candidate for an
election offense.—The 20 August 2004 resolution of the COMELEC En Banc betrayed its
misunderstanding of the two aspects of a disqualification case. The electoral aspect of a
disqualification case determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in character and require only
clear preponderance of evidence. An erring candidate may be disqualified even without
prior determination of probable cause in a preliminary investigation. The electoral aspect
may proceed independently of the criminal aspect, and vice versa. The criminal aspect of
a disqualification case determines whether there is probable cause to charge a candidate
for an election offense. The prosecutor is the COMELEC, through its Law Department,
which determines whether probable cause exists. If there is probable cause, the
COMELEC, through its Law Department, files the criminal information before the proper
court. Proceedings before the proper court demand a full-blown hearing and require
proof beyond reasonable doubt to convict. A criminal conviction shall result in the
disqualification of the offender, which may even include disqualification from holding a
future public office. The two aspects account for the variance of the rules on disposition
and resolution of disqualification cases filed before or after an election. When the
disqualification case is filed before the elections, the question of disqualification is raised
before the voting public. If the candidate is disqualified after the election, those who
voted for him assume the risk that their votes may be declared stray or invalid. There is
no such risk if the petition is filed after the elections. The COMELEC En Banc erred when
it ignored the electoral aspect of the disqualification case by setting aside the COMELEC
First Division’s resolution and referring the entire case to the COMELEC Law Department
for the criminal aspect.
Same; Same; The Supreme Court may review the factual findings of the COMELEC
when there is grave abuse of discretion and a showing of arbitrariness in the COMELEC’s
decision, order or resolution.—Eusebio is correct when he asserts that this Court is not a
trier of facts. What he overlooks, however, is that this Court may review the factual
findings of the COMELEC when there is grave abuse of discretion and a showing of
arbitrariness in the COMELEC’s decision, order or resolution. We find that the COMELEC
committed grave abuse of discretion in issuing its 20 August 2004 resolution.
Same; Same; Election Campaign; Partisan Political Activity; Words and
Phrases; The essential elements for violation of Section 80 of the Omnibus Election
Code are: (1) a person engages in an election campaign or partisan political activity, (2)
the act is designed to promote the election or defeat of a particular candidate or
candidates, (3) the act is done outside the campaign period; Unless one has filed his
certificate of candidacy, he is not a “candidate.”—The essential elements for violation of
Section 80 of the Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to promote the election or
defeat of a particular candidate or candidates; (3) the act is done outside the
campaign period. The second element requires the existence of a “candidate.” Under
Section 79(a), a candidate is one who “has filed a certificate of candidacy” to an elective
public office. Unless one has filed his certificate of candidacy, he is not a “candidate.”
The third element requires that the campaign period has not started when the election
campaign or partisan political activity is committed. Assuming that all candidates to a
public office file their certificates of candidacy on the last day, which under Section 75 of
the Omnibus Election Code is the day before the start of the campaign period, then
no one can be prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no “particular candidate or candidates” to campaign for or
against. On the day immediately after the last day of filing, the campaign period starts
and Section 80 ceases to apply since Section 80 covers only acts done “outside” the
campaign period.
Same; Same; Same; Same; Congress never intended the filing of a certificate of
candidacy before 2 January 2004 to make the person filing to become immediately a
“candidate” for purposes other than the printing of ballots—the clear intention of
Congress was to preserve the “election periods as fixed by existing law” prior to RA
8436 and that one who files to meet the early deadline “will still not be considered as a
candidate.”—Because of the early deadline of 2 January 2004 for purposes of printing of
official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress,
however, never intended the filing of a certificate of candidacy before 2 January 2004 to
make the person filing to become immediately a “candidate” for purposes other than the
printing of ballots. This legislative intent prevents the immediate application of Section
80 of the Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the “election periods as x x x fixed by
existing law” prior to RA 8436 and that one who files to meet the early deadline “will
still not be considered as a candidate.”
Same; Same; Same; Same; Since Section 80 of the Omnibus Election Code defines
a criminal offense, its provisions must be construed liberally in favor of one charged of
its violation; Acts committed by a person prior to his being a “candidate” on 23 March
2004, even if constituting election campaigning or partisan political activities, are not
punishable under Section 80 of the Omnibus Election Code—such acts are protected as
part of freedom of expression of a citizen before he becomes a candidate for elective
public office.—Under Section 3(b) of the Omnibus Election Code, the applicable law prior
to RA 8436, the campaign period for local officials commences 45 days before election
day. For the 2004 local elections, this puts the start of the campaign period on 24 March
2004. This also puts the last day for the filing of certificate of candidacy, under the law
prior to RA 8436, on 23 March 2004. Eusebio is deemed to have filed his certificate of
candidacy on this date for purposes other than the printing of ballots because this is the
interpretation of Section 80 of the Omnibus Election Code most favorable to one charged
of its violation. Since Section 80 defines a criminal offense, its provisions must be
construed liberally in favor of one charged of its violation. Thus, Eusebio became a
“candidate” only on 23 March 2004 for purposes other than the printing of
ballots. Acts committed by Eusebio prior to his being a “candidate” on 23 March 2004,
even if constituting election campaigning or partisan political activities, are not
punishable under Section 80 of the Omnibus Election Code. Such acts are protected as
part of freedom of expression of a citizen before he becomes a candidate for elective
public office. Acts committed by Eusebio on or after 24 March 2004, or during the
campaign period, are not covered by Section 80 which punishes only acts outside the
campaign period.
Same; Same; The disqualification of the elected candidate does not entitle the
candidate who obtained the second highest number of votes to occupy the office
vacated because of the disqualification.—The disqualification of the elected candidate
does not entitle the candidate who obtained the second highest number of votes to
occupy the office vacated because of the disqualification. Votes cast in favor of a
candidate who obtained the highest number of votes, against whom a petition for
disqualification was filed before the election, are presumed to have been cast in the
belief that he was qualified. For this reason, the second placer cannot be declared
elected. The exception to this rule rests on two assumptions. First, the one who obtained
the highest number of votes is disqualified. Second, the voters are so fully aware in fact
and in law of a candidate’s disqualification to bring such awareness within the realm of
notoriety but nonetheless the voters still cast their votes in favor of the ineligible
candidate. Lanot and Benavides failed to prove that the exception applies in the present
case. Thus, assuming for the sake of argument that Eusebio is disqualified, the rule on
succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in
Eusebio’s place.

CARPIO, J.:

The Case

This is a petition for certiorari1 assailing the Resolution dated 20 August 2004,2 the

Resolution dated 21 May 20043of the Commission on Elections (COMELEC) En Banc, and
the Advisory dated 10 May 20044 of COMELEC Chairman Benjamin S. Abalos ("Chairman
Abalos") in SPA No. 04-288.

The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region
(NCR) Regional Director Esmeralda Amora-Ladra ("Director Ladra") from implementing
the COMELEC First Division’s 5 May 2004 Resolution.5 The 5 May 2004 Resolution
ordered (1) the disqualification of respondent Vicente P. Eusebio ("Eusebio") as a
candidate for Pasig City Mayor in the 10 May 2004 elections, (2) the deletion of
Eusebio’s name from the certified list of candidates for Pasig City Mayor, (3) the
consideration of votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in
the canvass, and (5) the filing of the necessary information against Eusebio by the
COMELEC Law Department.

The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of
the COMELEC En Banc6and directed the Pasig City Board of Canvassers to proclaim the
winning candidate for Pasig City Mayor without prejudice to the final outcome of
Eusebio’s disqualification case. The 11 May 2004 Order suspended the proclamation of
Eusebio in the event that he would receive the winning number of votes.

Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004
Resolution of the COMELEC First Division7 and nullified the corresponding order. The
COMELEC En Banc referred the case to the COMELEC Law Department to determine
whether Eusebio actually committed the acts subject of the petition for disqualification.

The Facts

On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta
("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat ("Yamat"), and Ram Alan
Cruz ("Cruz") (collectively, "petitioners"), filed a petition for disqualification8 under
Sections 68 and 80 of the Omnibus Election Code against Eusebio before the COMELEC.
Lanot, Obispo, and Eusebio were candidates for Pasig City Mayor, while Peralta, dela
Paz, Yamat, and Cruz were candidates for Pasig City Councilor in the 10 May 2004
elections. The case was docketed as SPA (NCR-RED) No. C04-008.

Petitioners alleged that Eusebio engaged in an election campaign in various forms on

various occasions outside of the designated campaign period, such as (1) addressing a
large group of people during a medical mission sponsored by the Pasig City government;
(2) uttering defamatory statements against Lanot; (3) causing the publication of a press
release predicting his victory; (4) installing billboards, streamers, posters, and stickers
printed with his surname across Pasig City; and (5) distributing shoes to schoolchildren
in Pasig public schools to induce their parents to vote for him.

In his Answer filed on 29 March 2004,9 Eusebio denied petitioners’ allegations and

branded the petition as a harassment case. Eusebio further stated that petitioners’
evidence are merely fabricated.

Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the
parties’ documentary and testimonial evidence. Petitioners submitted their
memorandum10 on 15 April 2004, while Eusebio submitted his memorandum11 on 16
April 2004.

The Ruling of the Regional Director

On 4 May 2004, Director Ladra submitted her findings and recommendations to the
COMELEC. Director Ladra recommended that:

WHEREFORE, in view of the foregoing, undersigned respectfully recommends that the

instant petition be GRANTED. Consequently, pursuant to Section 68 (a) and (e) of the
Omnibus Election Code, respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to
run for the position of Mayor, Pasig City for violation of Section 80 of the Omnibus
Election Code.
Further, undersigned respectfully recommends that the instant case be referred to the
Law Department for it to conduct a preliminary investigation on the possible violation by
the respondent of Sec. 261 (a) of the Omnibus Election Code.12

The Ruling of the COMELEC

In a resolution dated 5 May 2004, or five days before the elections, the COMELEC First
Division adopted the findings and recommendation of Director Ladra. The dispositive
portion of the resolution read:

WHEREFORE, in view of the foregoing, the Commission (FIRST

DIVISION) RESOLVED as it hereby RESOLVESto ORDER:

1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate

for mayor of Pasig City in the May 10, 2004 elections;

2. the Election Officers of District I and District II of Pasig City

to DELETE and CANCEL the name of respondent VICENTE P. EUSEBIO from the
certified list of candidates for the City Offices of Pasig City for the May 10, 2004
elections;

3. the Board of Election Inspectors of all the precincts comprising the City of Pasig
not to count the votes cast for respondent VICENTE EUSEBIO, the same being cast
for a disqualified candidate and therefore must be considered stray;

4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously
cast for the disqualified candidate respondent VICENTE P. EUSEBIO, in the event
that such votes were recorded in the election returns[;]

5. the Regional Director of NCR, and the Election Officers of Pasig City to
immediately implement the foregoing directives[;]

6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the
necessary information against Vicente P. Eusebio before the appropriate court.

This Resolution is immediately executory unless restrained by the Commission En

Banc.13 (Emphasis in the original)

In a Very Urgent Advisory14 dated 8 May 2004, or two days before the elections,
Chairman Abalos informed the following election officers of the resolution of the
COMELEC First Division: Director Ladra; Atty. Romeo Alcazar, Acting Election Officer of
the First District of Pasig City; Ms. Marina Gerona, Acting Election Officer of the Second
District of Pasig City; and all Chairmen and Members of the Board of Election Inspectors
and City Board of Canvassers of Pasig City (collectively, "pertinent election officers").
Director Ladra repeated the dispositive portion of the 5 May 2004 resolution in a
Memorandum15 which she issued the next day. On 9 May 2004, Eusebio filed a motion
for reconsideration16 of the resolution of the COMELEC First Division.

On election day itself, Chairman Abalos issued the first of the three questioned COMELEC
issuances. In a memorandum, Chairman Abalos enjoined Director Ladra from
implementing the COMELEC First Division’s 5 May 2004 resolution due to Eusebio’s
motion for reconsideration. The 10 May 2004 memorandum stated:

Considering the pendency of a Motion for Reconsideration timely filed by Respondent,

Vicente P. Eusebio[,] with the Commission En Banc, you are hereby ENJOINED from
implementing the Resolution promulgated on May 5, 2004, in the x x x case until further
orders from the Commission En Banc.17 (Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Yamat,
and Cruz filed before the COMELEC En Banc a motion to suspend the counting and
canvassing of votes and the proclamation of the winning mayoral candidate for Pasig
City.18 Without waiting for Eusebio’s opposition, the COMELEC En Banc partially denied
the motion on the same day. The dispositive portion of the Order declared:

WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion for
suspension of the counting of votes and the canvassing of votes. However, in order not
to render moot and academic the issues for final disposition by the En Banc and
considering that on the basis of the Resolution of the FIRST DIVISION, the evidence of
respondent’s guilt is strong, the Commission En Banc hereby ORDERS to SUSPEND,
UNTIL FURTHER ORDERS OF THE COMMISSION, the proclamation of respondent in the
event he receives the winning number of votes.19 (Emphasis in the original)

On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.

On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The
order quoted from the motion for advisory opinion of the Pasig City Board of Canvassers
which reported that 98% of the total returns of Pasig City had been canvassed and that
there were only 32 uncanvassed returns involving 6,225 registered voters. Eusebio had
119,693 votes while Lanot had 108,941 votes. Thus, the remaining returns would not
affect Eusebio’s lead over Lanot. The COMELEC En Banc stated its "established policy" to
"expedite the canvass of votes and proclamation of winning candidates to ease the post
election tension and without prejudice to [its] action in [the] x x x case"20 and resolved
to declare Eusebio as Pasig City Mayor. The dispositive portion of the 21 May 2004 Order
read:

WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND SET

ASIDE the order suspending the proclamation of the respondent.

FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass and
immediately proceed with the proclamation of the winning candidate for Mayor of Pasig
City without prejudice to the final outcome of the case entitled, "Henry P.
Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA No. 04-288.21 (Emphasis in
the original)

Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004
Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En Banc conducted hearings
on Eusebio’s motion for reconsideration of the 5 May 2004 COMELEC First Division
resolution. On 6 August 2004, Lanot filed a motion to annul Eusebio’s proclamation and
to order his proclamation instead.22

On 20 August 2004, the COMELEC En Banc promulgated the third questioned issuance.
The COMELEC En Banc invoked Section 1 of COMELEC Resolution No. 2050 ("Resolution
2050") and this Court’s rulings in Albaña v. COMELEC,23 Lonzanida v.
COMELEC,24 and Sunga v. COMELEC25 in justifying the annulment of the order to
disqualify Eusebio and the referral of the case to the Law Department for preliminary
investigation. The dispositive portion stated:

WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First

Division dated 8 May 2004 on the above-captioned case, affirming the recommendation
of the Regional Director (NCR) to disqualify herein respondent, is hereby SET ASIDE,
and the corresponding ORDER issued thereunder, ANNULLED. Accordingly, this case is
referred to the Law Department for investigation to finally determine [whether] the acts
complained of were in fact committed by respondent Eusebio.26 (Emphasis in the
original)

Hence, this petition.

 The Issues

Lanot alleged that as the COMELEC’s issuances are not supported by substantial
evidence and are contrary to law and settled jurisprudence, the COMELEC committed
grave abuse of discretion amounting to lack of or excess of jurisdiction. Lanot raised the
following issues before this Court:

A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION DATED

AUGUST 20, 2004, ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK OR IN
EXCESS OF JURISDICTION

1. by setting aside the Resolution of Disqualification promulgated by its First

Division on May 5, 2004 affirming the recommendation of the Regional
Election Director (NCR) to disqualify Respondent, and by annulling the order
issued thereunder,

a) erroneously, whimsically and maliciously ADOPTED and APPLIED

Sections 1 and 2 of Rule 2050 to this case,

b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A.

6646,

c) erroneously, whimsically and capriciously ARROGATED unto

themselves a quasi-judicial legislation, and

d) erroneously and maliciously MISAPPLIED the Albaña and Sunga

cases to the case at bar;

2. by referring the case to the Law Department for investigation, it illegally,

erroneously and maliciously DISMISSED the electoral aspect of the case and
whimsically VIOLATED Resolution 6452 and Section 6 of RA 6646;

3. by disregarding the Order of disqualification, it erroneously and

whimsically IGNORED and DISREGARDED the inchoate right of petitioner as
the winning party.

B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN

EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21, 2004

1. by lifting and setting aside the Order of suspension of proclamation by

winning candidate issued on May 11, 2004, it erroneously and intentionally
and whimsically DISREGARDED the strong evidence of guilt of Respondent to
warrant the suspension of his proclamation and erroneously and capriciously
VIOLATED Resolution of May 11, 2004.

C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE

ABUSE OF POWER, AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF
JURISDICTION

1. by unilaterally enjoining the implementation of the Order of Respondent’s

disqualification despite the condition therein that it could only be restrained
by the Commission En Banc, and whether or not he illegally, erroneously and
blatantly whimsically grabbed the exclusive adjudicatory power of the
Commission En Banc.

D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING
THE RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL AND EXECUTED AND IN FAILING
TO ORDER THE PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT
EUSEBIO’S DISQUALIFICATION.

b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED

WITH FOUR (4) AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES
FROM COMMISSIONERS BORRA AND GARCILLANO WHO VOTED FOR THE
DISQUALIFICATION IN THE MAY 5, 2004

RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS

TUAZON, JR. AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR
DISSENTING OPINION (ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO
THE LAW DEPARTMENT BY RESPONDENT COMELEC BE DECLARED A PATENT
NULLITY.

F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER PETITIONER

LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER
THE DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27

The Ruling of the Court

The petition has no merit.

Parties to the Present Petition

On 13 April 2005, during the pendency of this case, an unidentified person shot and
killed Lanot in Pasig City. It seemed that, like an endangered specie, the disqualification
case would be extinguished by Lanot’s death. However, on 27 April 2005, Lanot’s
counsel manifested, over Eusebio’s objections, that Mario S. Raymundo ("Raymundo"), a
registered voter and former Mayor of Pasig City, is Lanot’s substitute in this case. Also,
on 25 August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral
candidate and the third placer in the 10 May 2004 elections, filed a petition-in-
intervention. Benavides asked whether she could be proclaimed Pasig City Mayor
because she is the surviving qualified candidate with the highest number of votes among
the remaining candidates.

The law and the COMELEC rules have clear pronouncements that the electoral aspect of
a disqualification case is not rendered inutile by the death of petitioner, provided that
there is a proper substitution or intervention of parties while there is a pending case. On
Raymundo’s substitution, any citizen of voting age is competent to continue the action in
Lanot’s stead.28 On Benavides’ intervention, Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows intervention in
proceedings for disqualification even after elections if no final judgment has been
rendered. Although Eusebio was already proclaimed as Pasig City Mayor, Benavides
could still intervene, as there was still no final judgment in the proceedings for
disqualification.29

The case for disqualification exists, and survives, the election and proclamation of the
winning candidate because an outright dismissal will unduly reward the challenged
candidate and may even encourage him to employ delaying tactics to impede the
resolution of the disqualification case until after he has been proclaimed.30 The exception
to the rule of retention of jurisdiction after proclamation applies when the challenged
candidate becomes a member of the House of Representatives or of the Senate, where
the appropriate electoral tribunal would have jurisdiction. There is no law or
jurisprudence which says that intervention or substitution may only be done prior to the
proclamation of the winning candidate. A substitution is not barred by prescription
because the action was filed on time by the person who died and who is being
substituted. The same rationale applies to a petition-in-intervention.

COMELEC’s Grave Abuse of Discretion

Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates and of the
Counting of Votes and Canvassing of Election Returns

In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election
officials to delete and cancel Eusebio’s name from the certified list of Pasig City mayoral
candidates, not to count votes cast in Eusebio’s favor, and not to include votes cast in
Eusebio’s favor in the canvass of election returns. Eusebio filed a motion for
reconsideration of the resolution on 9 May 2004. Hence, COMELEC Chairman Abalos
issued a memorandum on 10 May 2004 which enjoined the pertinent election officials
from implementing the 5 May 2004 resolution. In a Resolution dated 11 May 2004, the
COMELEC En Banc subsequently ratified and adopted Chairman Abalos’ 10 May 2004
memorandum when it denied Lanot’s motion to suspend the counting of votes and
canvassing of election returns.

Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the
COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanot asserts that
the last sentence in the dispositive portion of the COMELEC First Division’s 5 May 2004
Resolution, "[t]his Resolution is immediately executory unless restrained by the
Commission En Banc," should have prevented Chairman Abalos from acting on his own.

Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution of the
COMELEC En Banc. The COMELEC En Banc’s explanation is apt:

Suspension of these proceedings is tantamount to an implementation of the Resolution

of the FIRST DIVISION which had not yet become final and executory by reason of the
timely filing of a Motion for Reconsideration thereof. A disposition that has not yet
attained finality cannot be implemented even through indirect means.31

Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an advisory required

by the circumstances at the time. Eusebio filed a motion for reconsideration on 9 May
2004, and there was not enough time to resolve the motion for reconsideration before
the elections. Therefore, Eusebio was not yet disqualified by final judgment at the time
of the elections. Section 6 of the Electoral Reforms Law of 1987 provides that "[a]
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." Under Section 13 of the COMELEC Rules of
Procedure, a decision or resolution of a Division in a special action becomes final and
executory after the lapse of fifteen days following its promulgation while a decision or
resolution of the COMELEC En Banc becomes final and executory after five days from its
promulgation unless restrained by this Court.

Propriety of the Lifting of the Suspension of Eusebio’s Proclamation

In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension of
Eusebio’s proclamation in the event he would receive the winning number of votes. Ten
days later, the COMELEC En Banc set aside the 11 May 2004 order and directed the
Pasig City Board of Canvassers to proclaim Eusebio as the winning candidate for Pasig
City Mayor. The COMELEC relied on Resolutions 7128 and 712932 to justify the counting
of Eusebio’s votes and quoted from the Resolutions as follows:

Resolution No. 7128 -

xxxx

NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt certain

policies and to direct all Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates except under the
following circumstances:

a. issuance of an order or resolution suspending the proclamation;

b. valid appeal[s] from the rulings of the board in cases where appeal is allowed
and the subject appeal will affect the results of the elections;

x x x x.

Resolution No. 7129

xxxx

NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by

the Constitution, the Omnibus Election Code and other elections laws, has RESOLVED, as
it hereby RESOLVES, to refrain from granting motions and petitions seeking to postpone
proclamations by the Board of Canvassers and other pleadings with similar purpose
unless they are grounded on compelling reasons, supported by convincing evidence
and/or violative of the canvassing procedure outlined in Resolution No. 6669.

We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of
discretion in issuing its 21 May 2004 order. The COMELEC has the discretion to suspend
the proclamation of the winning candidate during the pendency of a disqualification case
when evidence of his guilt is strong.33 However, an order suspending the proclamation of
a winning candidate against whom a disqualification case is filed is merely provisional in
nature and can be lifted when warranted by the evidence.34

Propriety of the Dismissal of the

Disqualification Case and of the
Referral to the COMELEC
Law Department

Lanot filed the petition for disqualification on 19 March 2004, a little less than two
months before the 10 May 2004 elections. Director Ladra conducted hearings on the
petition for disqualification on 2, 5 and 7 April 2004. Director Ladra submitted her
findings and recommendations to the COMELEC on 4 May 2004. The COMELEC First
Division issued a resolution adopting Director Ladra’s recommendations on 5 May 2004.
Chairman Abalos informed the pertinent election officers of the COMELEC First Division’s
resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for
Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to Director
Ladra on election day, 10 May 2004, and enjoined her from implementing the 5 May
2004 COMELEC First Division resolution. The petition for disqualification was not yet
finally resolved at the time of the elections. Eusebio’s votes were counted and
canvassed, after which Eusebio was proclaimed as the winning candidate for Pasig City
Mayor. On 20 August 2004, the COMELEC En Banc set aside the COMELEC First
Division’s order and referred the case to the COMELEC Law Department.

In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing of
the filing of the petition. The COMELEC En Banc invoked Section 1 of Resolution No.
2050, which states:

1. Any complaint for the disqualification of a duly registered candidate based upon any
of the grounds specifically enumerated under Section 68 of the Omnibus Election Code,
filed directly with the Commission before an election in which the respondent is a
candidate, shall be inquired into by the Commission for the purpose of determining
whether the acts complained of have in fact been committed. Where the inquiry by the
Commission results in a finding before election, that the respondent candidate did in fact
commit the acts complained, the Commission shall order the disqualification of the
respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission
may motu proprio, or on motion of any of the parties, refer the complaint to the
Law Department of the Commission as the instrument of the latter in the
exercise of its exclusive power to conduct a preliminary investigation of all
cases involving criminal infractions of the election laws. Such recourse may be
availed of irrespective of whether the respondent has been elected or has lost
in the election. (Emphasis added)

The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the
disqualification case to its Law Department.

x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or

directing the dismissal of a disqualification case filed before the election but which
remained unresolved after the election. What the Resolution mandates in such a case is
for the Commission to refer the complaint to its Law Department for investigation to
determine whether the acts complained of have in fact been committed by the candidate
sought to be disqualified. The findings of the Law Department then become the basis for
disqualifying the erring candidate. This is totally different from the other two situations
contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election
but before the proclamation of winners and that filed after the election and the
proclamation of winners, wherein it was specifically directed by the same Resolution to
be dismissed as a disqualification case.35

For his part, Eusebio asserts that the COMELEC has the prerogative to refer the
disqualification case to its Law Department. Thus, no grave abuse of discretion can be
imputed to the COMELEC. Moreover, the pendency of a case before the Law Department
for purposes of preliminary investigation should be considered as continuation of the
COMELEC’s deliberations.

However, contrary to the COMELEC En Banc’s reliance on Resolution No. 2050 in its 20
August 2004 resolution, the prevailing law on the matter is Section 6 of the Electoral
Reforms Law of 1987. Any rule or action by the COMELEC should be in accordance with
the prevailing law. Section 6 of the Electoral Reforms Law of 1987 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)

Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v.

COMELEC,36 thus:

The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the

disqualification case therein simply because it remained unresolved before the election
and, in lieu thereof, referring it to its Law Department for possible criminal prosecution
of the respondent for violation of the election laws. Notably, there is nothing in
paragraph 1 of Resolution No. 2050 which directs the dismissal of the disqualification
case not resolved before the election. It says the COMELEC "may motu prop[r]io or on
motion of any of the parties, refer the complaint to the Law Department of the
Commission as an instrument of the latter in the exercise of its exclusive power to
conduct a preliminary investigation of all cases involving criminal infractions of the
election laws." The referral to the Law Department is discretionary on the part of the
COMELEC and in no way may it be interpreted that the COMELEC will dismiss the
disqualification case or will no longer continue with the hearing of the same. The reason
for this is that a disqualification case may have two (2) aspects, the administrative,
which requires only a preponderance of evidence to prove disqualification, and the
criminal, which necessitates proof beyond reasonable doubt to convict. Where in the
opinion of the COMELEC, the acts which are grounds for disqualification also constitute a
criminal offense or offenses, referral of the case to the Law Department is proper.

xxxx

It bears stressing that the Court in Sunga recognized the difference between a

disqualification case filed before and after an election when, as earlier mentioned, it
stated that the referral of the complaint for disqualification where the case is filed before
election "is totally different from the other two situations contemplated by Resolution
No. 2050, i.e., a disqualification case filed after the election but before the proclamation
of winners and that filed after the election and the proclamation of winners, wherein it
was specifically directed by the same Resolution to be dismissed as a disqualification
case."

Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its
misunderstanding of the two aspects of a disqualification case. The electoral aspect of a
disqualification case determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in character and require only
clear preponderance of evidence. An erring candidate may be disqualified even without
prior determination of probable cause in a preliminary investigation. The electoral aspect
may proceed independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether there is probable cause
to charge a candidate for an election offense. The prosecutor is the COMELEC, through
its Law Department, which determines whether probable cause exists.37 If there is
probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-
blown hearing and require proof beyond reasonable doubt to convict.38 A criminal
conviction shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office.39

The two aspects account for the variance of the rules on disposition and resolution of
disqualification cases filed before or after an election. When the disqualification case is
filed before the elections, the question of disqualification is raised before the voting
public. If the candidate is disqualified after the election, those who voted for him assume
the risk that their votes may be declared stray or invalid. There is no such risk if the
petition is filed after the elections.40 The COMELEC En Banc erred when it ignored the
electoral aspect of the disqualification case by setting aside the COMELEC First Division’s
resolution and referring the entire case to the COMELEC Law Department for the criminal
aspect.

Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight of the
provisions of Resolution No. 6452 ("Resolution 6452"), "Rules Delegating to COMELEC
Field Officials the Hearing and Reception of Evidence of Disqualification Cases Filed in
Connection with the May 10, 2004 National and Local Elections; Motu ProprioActions and
Disposition of Disqualification Cases," promulgated on 10 December 2003. The pertinent
portions of Resolution 6452 provide:

Section 1.  Delegation of reception of evidence. — The Commission hereby designates its
field officials who are members of the Philippine Bar to hear and receive evidence in the
following petitions:

xxx
 c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election
Code and disqualify a candidate for lack of qualifications or possessing same
grounds for disqualification;

xxx

Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of justice and in
order to attain speedy disposition of cases, the Comelec Rules of Procedure or any
portion thereof inconsistent herewith is hereby suspended.

Sec. 3. Where to file petitions. — The petitions shall be filed with the following offices of
the Commission:

xxx

b. For x x x local positions including highly-urbanized cities, in the National Capital

Region, with the Regional Election Director of said region;

xxx

PROVIDED, in cases of highly-urbanized cities the filing of petitions for disqualification

shall be with the Office of the Regional Election Directors. x x x

xxxx

The Regional Election Directors concerned shall hear and receive evidence strictly in
accordance with the procedure and timeliness herein provided.

Sec. 5. Procedure in filing petitions. — For purposes of the preceding section, the
following procedure shall be observed:

xxxx

C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS

ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR
POSSESSING SAME GROUNDS FOR DISQUALIFICATION

1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the

Omnibus Election Code x x x may be filed any day after the last day [of] filing of
certificates of candidacy but not later than the date of proclamation.

2. The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus

Election Code shall be filed in ten (10) legible copies with the concerned office
mentioned in Sec. 3 personally or through a duly authorized representative by any
citizen of voting age, or duly registered political party, organization or coalition of
political parties against any candidate who, in an action or protest in which he is a
party, is declared by final decision of a competent court guilty of, or found by the
Commission of:

2.a having given money or other material consideration to influence, induce

or corrupt the voters or public officials performing electoral functions; or

xxx

2.d having solicited, received or made any contribution prohibited under

Sections 89, 95, 96, 97 and 104 of the Omnibus Elections Code; or

2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v and cc sub-paragraph 6 of the Omnibus Election Code, shall be
 disqualified from continuing as a candidate, or if he has been elected, from
holding the office.

xxxx

Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to "the
interest of justice and x x x speedy disposition of cases." Resolution No. 2050 referring
the electoral aspect to the Law Department is procedurally inconsistent with Resolution
6452 delegating reception of evidence of the electoral aspect to the Regional Election
Director. The investigation by the Law Department under Resolution No. 2050 produces
the same result as the investigation under Resolution 6452 by the Regional Election
Director. Commissioner Tuason’s dissent underscored the inconsistency between the
avowed purpose of Resolution 6452 and the COMELEC En Banc’s 20 August 2004
resolution:

x x x [T]he preliminary investigation for purposes of finding sufficient ground for

[Eusebio’s] disqualification, has already been accomplished by the RED-NCR prior to the
election. There also appears no doubt in my mind, that such recommendation of the
investigating officer, RED-NCR, was substantive and legally sound. The First Division
agreed with the result of the investigation/recommendation, with the facts of the case
clearly distilled in the assailed resolution. This, I likewise found to be in accord with our
very own rules and the jurisprudential doctrines aforestated. There could be no rhyme
and reason then to dismiss the electoral aspect of the case (i.e., disqualification) and
refer the same to the Law Department for preliminary investigation. As held in Sunga,
clearly, the legislative intent is that the COMELEC should continue the trial and hearing
of the disqualification case to its conclusion, i.e., until judgment is rendered thereon.
The criminal aspect of the case is an altogether different issue.

Sunga said the reason is obvious: A candidate guilty of election offenses would be

undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused
upon it, to determine before the election if the offenses were indeed committed by the
candidate sought to be disqualified. All that the erring aspirant would need to do is to
employ delaying tactics so that the disqualification case based on the commission of
election offenses would not be decided before the election. This scenario is productive of
more fraud which certainly is not the main intent and purpose of the law.41

We agree with Lanot that the COMELEC committed grave abuse of discretion when it
ordered the dismissal of the disqualification case pending preliminary investigation of the
COMELEC Law Department. A review of the COMELEC First Division’s 5 May 2004
resolution on Eusebio’s disqualification is in order, in view of the grave abuse of
discretion committed by the COMELEC En Banc in its 20 August 2004 resolution.

Rightful Pasig City Mayor

Eusebio’s Questioned Acts

We quote the findings and recommendations of Director Ladra as adopted by the

COMELEC First Division:

The questioned acts of [Eusebio] are as follows:

1) The speech uttered on February 14, 2004 during the meeting dubbed
as "Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein
[Eusebio] allegedly asked the people to vote for him and solicited for their
support x x x:

xxxx
 2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig
City wherein [Eusebio] again allegedly uttered defamatory statements
against co-[candidate] Lanot and campaigned for his (respondent’s) and
his group’s candidacy.

xxxx

3) He caused to be published in leading newspapers about a survey

allegedly done by Survey Specialist, Inc. showing him to be leading in the
mayoralty race in Pasig City.

xxxx

4) He paid a political advertisement in the Philippine Free Press in the

amount of ₱193,660.00 as published in its issue dated February 7, 2004.

xxxx

5) The display of billboards containing the words "Serbisyo Eusebio" and

"ST" which means "Serbisyong Totoo" before the start of the campaign
period.

xxxx

6) Posters showing the respondent and his running mate Yoyong Martirez
as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY
EUSEBIO" in connection with the dengue project were posted everywhere
even before the start of the campaign period.

xxxx

7) Streamers bearing the words "Pasig City is for PEACE" were likewise
displayed with the two letters "E" prominently written.

xxxx

8) Stickers of [Eusebio] were likewise pasted all over the city before the
start of the campaign period.

xxxx

9) [Eusebio] engaged in vote-buying by distributing shoes to the students

while telling the parents that by way of gratitude, they should vote for
him.

x x x x (Emphasis in the original)42

Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before
the COMELEC Law Department; (2) Lanot abandoned the present petition also because
of his participation in the proceedings before the COMELEC Law Department; and (3)
Lanot is guilty of forum-shopping. These arguments fail for lack of understanding of the
two aspects of disqualification cases. The proceedings before the COMELEC Law
Department concern the criminal aspect, while the proceedings before this Court
concern the electoral aspect, of disqualification cases. The proceedings in one may
proceed independently of the other.

Eusebio is correct when he asserts that this Court is not a trier of facts. What he
overlooks, however, is that this Court may review the factual findings of the COMELEC
when there is grave abuse of discretion and a showing of arbitrariness in the COMELEC’s
decision, order or resolution.43 We find that the COMELEC committed grave abuse of
discretion in issuing its 20 August 2004 resolution.

Our review of the factual findings of the COMELEC, as well as the law applicable to this
case, shows that there is no basis to disqualify Eusebio. Director Ladra recommended
the disqualification of Eusebio "for violation of Section 80 of the Omnibus Election Code."
The COMELEC First Division approved Director Ladra’s recommendation and disqualified
Eusebio. Section 80 of the Omnibus Election Code provides:

SECTION 80. Election campaign or partisan political activity outside campaign period. —
It shall be unlawful for any person, whether or not a voter or candidate, or for any party,
or association of persons, to engage in an election campaign or partisan political activity
except during the campaign period: Provided, That political parties may hold political
conventions or meetings to nominate their official candidates within thirty days before
the commencement of the campaign period and forty-five days for Presidential and Vice-
Presidential election. (Emphasis supplied)

What Section 80 of the Omnibus Election Code prohibits is "an election campaign or
partisan political activity" by a "candidate" "outside" of the campaign period. Section 79
of the same Code defines "candidate," "election campaign" and "partisan political
activity" as follows:

SECTION 79. Definitions. — As used in this Code:

(a) The term "candidate" refers to any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties;

(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or candidates
to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups

of persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or

other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding

interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to

support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a

candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by a political party,
aggroupment, or coalition of parties shall not be considered as election campaign or
partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election

or on attributes of or criticisms against probable candidates proposed to be nominated in
a forthcoming political party convention shall not be construed as part of any election
campaign or partisan political activity contemplated under this Article.
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code
are: (1) a person engages in an election campaign or partisan political activity; (2) the
act is designed to promote the election or defeat of a particular candidate or candidates;
(3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a
candidate is one who "has filed a certificate of candidacy" to an elective public office.
Unless one has filed his certificate of candidacy, he is not a "candidate." The third
element requires that the campaign period has not started when the election campaign
or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the
last day, which under Section 75 of the Omnibus Election Code is the day before the
start of the campaign period, then no one can be prosecuted for violation of Section 80
for acts done prior to such last day. Before such last day, there is no "particular
candidate or candidates" to campaign for or against. On the day immediately after the
last day of filing, the campaign period starts and Section 80 ceases to apply since
Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may
only apply to acts done on such last day, which is before the start of the campaign
period and after at least one candidate has filed his certificate of candidacy. This is
perhaps the reason why those running for elective public office usually file their
certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political

activities were committed outside of the campaign period. The only question is whether
Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate"
when he committed those acts before the start of the campaign period on 24 March
2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline was
moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question
is: did this change in the deadline for filing the certificate of candidacy make one who
filed his certificate of candidacy before 2 January 2004 immediately liable for violation of
Section 80 if he engaged in election campaign or partisan political activities prior to the
start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the
official ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the
Board of Election Inspectors shall affix his/her signature to authenticate the official ballot
shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition
for registration/manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the elections: Provided, That, any
elective official, whether national or local, running for any office other than the one
which he/she is holding in a permanent capacity, except for president and vice-
president, shall be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998
elections, the deadline for filing of the certificate of candidacy for the positions of
President, Vice-President, Senators and candidates under the party-list system as well
as petitions for registration and/or manifestation to participate in the party-list system
shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy
for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may contract the
services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political
parties and deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure
that the serial number on the ballot stub shall be printed in magnetic ink that shall be
easily detectable by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic strips, bar codes and
other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of
one (1) ballot for every registered voter with a provision of additional four (4) ballots per
precinct.44 (Emphasis added)

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of
candidacy is to give ample time for the printing of official ballots. This is clear from the
following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the
same[,] uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the

present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a
candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began
[sic].

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate
will not bring about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the
certificate of candidacy will not result in that official vacating his position, we can also
provide that insofar he is concerned, election period or his being a candidate will not yet
commence. Because here, the reason why we are doing an early filing is to afford
enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House
Panel will withdraw its proposal and will agree to the 120-day period provided in the
Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts

which apply immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to
afford the Comelec enough time to print the ballots, this provision does not intend to
change the campaign

periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other

prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict
anymore because we are talking about the 120-day period before election as the last
day of filing a certificate of candidacy, election period starts 120 days also. So that is
election period already. But he will still not be considered as a candidate.45(Emphasis
added)

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official
ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress,
however, never intended the filing of a certificate of candidacy before 2 January 2004 to
make the person filing to become immediately a "candidate" for purposes other than the
printing of ballots. This legislative intent prevents the immediate application of Section
80 of the Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by existing
law" prior to RA 8436 and that one who files to meet the early deadline "will still not be
considered as a candidate."

Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436,
the campaign period for local officials commences 45 days before election day. For the
2004 local elections, this puts the start of the campaign period on 24 March 2004. This
also puts the last day for the filing of certificate of candidacy, under the law prior to RA
8436, on 23 March 2004. Eusebio is deemed to have filed his certificate of candidacy on

this date for purposes other than the printing of ballots because this is the interpretation
of Section 80 of the Omnibus Election Code most favorable to one charged of its
violation. Since Section 80 defines a criminal offense,46 its provisions must be construed
liberally in favor of one charged of its violation. Thus, Eusebio became a "candidate" only
on 23 March 2004 for purposes other than the printing of ballots.

Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if
constituting election campaigning or partisan political activities, are not punishable
under Section 80 of the Omnibus Election Code. Such acts are protected as part of
freedom of expression of a citizen before he becomes a candidate for elective public
office. Acts committed by Eusebio on or after 24 March 2004, or during the campaign
period, are not covered by Section 80 which punishes only acts outside the campaign
period.

We now examine the specific questioned acts of Eusebio whether they violate Section 80
of the Omnibus Election Code.

We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:
 1) The speech uttered on February 14, 2004 during the meeting dubbed
as "Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein
[Eusebio] allegedly asked the people to vote for him and solicited for their
support x x x:

2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig
City wherein [Eusebio] again allegedly uttered defamatory statements
against co-[candidate] Lanot and campaigned for his (respondent’s) and
his group’s candidacy.47 (Emphasis in the original)

The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is
deemed to have filed his certificate of candidacy on 23 March 2004 for purposes other
than the printing of ballots. Eusebio, not being a candidate then, is not liable for
speeches on 14 February 2004 and 17 March 2004 asking the people to vote for him.

The survey showing Eusebio leading in the mayoralty race was published before Eusebio
was deemed to have filed his certificate of candidacy on 23 March 2004. Thus:

3) He caused to be published in leading newspapers about a survey allegedly

done by Survey Specialist, Inc. showing him to be leading in the mayoralty race
in Pasig City.

xxxx

They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila
Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine
Star dated March 2, 2004 to the effect that the articles in question came from the camp
of [Eusebio].48 (Emphasis in the original)

Eusebio is not liable for this publication which was made before he became a candidate
on 23 March 2004.

The political advertisement in the Philippine Free Press issue of 7 February 2004 was
also made before Eusebio became a candidate on 23 March 2004. Thus:

4) He paid a political advertisement in the Philippine Free Press in the amount

of ₱193,660.00 as published in its issue dated February 7, 2004. 49 (Emphasis in
the original)

The display of Eusebio’s billboards, posters, stickers, and streamers, as well as his
distribution of free shoes, all happened also before Eusebio became a candidate on 23
March 2004. Thus:

5) The display of billboards containing the words "Serbisyo Eusebio" and "ST"
which means "Serbisyong Totoo" before the start of the campaign period.

xxxx

6) Posters showing the respondent and his running mate Yoyong Martinez as
well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in
connection with the dengue project were posted everywhere even before the
start of the campaign period.

xxxx

Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes

Garcia stated in their respective affidavits marked as Exhs. "L" and "L-1" that the
pictures were taken on March 3, 7 & 8, 2004.
xxxx

7) Streamers bearing the words "Pasig City is for PEACE" were likewise
displayed with the two letters "E" prominently written.

xxxx

Said streamers were among those captured by the camera of the petitioners’ witnesses
Hermogenes Garcia and Nelia Sarmiento before the start of the campaign period.

8) Stickers of [Eusebio] were likewise pasted all over the city before the start
of the campaign period.

xxxx

9) [Eusebio] engaged in vote-buying by distributing shoes to the students

while telling the parents that by way of gratitude, they should vote for him.

The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie Altiche
and Myrna Verdillo marked as Exh. "O" are uncontroverted. Their statement that free
shoes were given to the students of Rizal High School was corroborated by the Manila
Bulletin issue of February 6, 2004 which showed the picture of the respondent delivering
his speech before a group of students.

x x x x50 (Emphasis in the original)

Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all
occurred before the start of the campaign period on 24 March 2004. Indeed, Director
Ladra applied Section 80 of the Omnibus Election Code against Eusebio precisely
because Eusebio committed these acts "outside" of the campaign period. However,
Director Ladra erroneously assumed that Eusebio became a "candidate," for purposes of
Section 80, when Eusebio filed his certificate of candidacy on 29 December 2003.

Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of Section 80

of the Omnibus Election Code, only on 23 March 2004, the last day for filing certificates
of candidacy. Applying the facts - as found by Director Ladra and affirmed by the
COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did not violate
Section 80 of the Omnibus Election Code which requires the existence of a "candidate,"
one who has filed his certificate of candidacy, during the commission of the questioned
acts.

Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the
questioned acts.1âwphi1 Eusebio points out that Section 11 contains the following
proviso:

Provided, further, That, unlawful acts or omissions applicable to a candidate shall take
effect upon the start of the aforesaid campaign period: x x x

Eusebio theorizes that since the questioned acts admittedly took place before the start
of the campaign period, such acts are not "unlawful acts or omissions applicable to a
candidate."

We find no necessity to apply in the present case this proviso in Section 11 of RA 8436.
Eusebio’s theory legalizes election campaigning or partisan political activities before the
campaign period even if a person has already filed his certificate of candidacy based on
the election periods under existing laws prior to RA 8436. Under Eusebio’s theory,
Section 11 of RA 8436 punishes unlawful acts applicable to a candidate only if
committed during the campaign period.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be
committed during the campaign period. On the other hand, under Eusebio’s theory,
unlawful acts applicable to a candidate cannot be committed outside of the campaign
period. The net result is to make the election offense in Section 80 physically impossible
to commit at any time. We shall leave this issue for some other case in the future since
the present case can be resolved without applying the proviso in Section 11 of RA 8436.

Effect of Eusebio’s Possible

Disqualification

As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in
the event of Eusebio’s disqualification. As third placer, Benavides, on the other hand,
prays that she be proclaimed as the rightful Pasig City Mayor in the event of Eusebio’s
disqualification and in view of Lanot’s death. Even if we assume Eusebio’s disqualification
as fact, we cannot grant either prayer.

The disqualification of the elected candidate does not entitle the candidate who obtained
the second highest number of votes to occupy the office vacated because of the
disqualification.51 Votes cast in favor of a candidate who obtained the highest number of
votes, against whom a petition for disqualification was filed before the election, are
presumed to have been cast in the belief that he was qualified. For this reason, the
second placer cannot be declared elected.52

The exception to this rule rests on two assumptions. First, the one who obtained the
highest number of votes is disqualified. Second, the voters are so fully aware in fact and
in law of a candidate’s disqualification to bring such awareness within the realm of
notoriety but nonetheless the voters still cast their votes in favor of the ineligible
candidate.53 Lanot and Benavides failed to prove that the exception applies in the
present case. Thus, assuming for the sake of argument that Eusebio is disqualified, the
rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed
in Eusebio’s place.54

WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in the 10

May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of
the Commission on Elections En Banc. We SET ASIDE the 20 August 2004 Resolution of
the Commission En Banc since respondent Vicente P. Eusebio did not commit any act
which would disqualify him as a candidate in the 10 May 2004 elections.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
G.R. No. 159139             January 13, 2004

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.

DECISION

Constitutional Law; Powers; Judicial Power; Constitutionality; Legal

Standing; Petitioners’ legal standing recognized following the liberal policy of this Court
whenever a case involves “an issue of overarching significance to our society.”—Our
nation’s political and economic future virtually hangs in the balance, pending the
outcome of the 2004 elections. Hence, there can be no serious doubt that the subject
matter of this case is “a matter of public concern and imbued with public interest”; in
other words, it is of “paramount public interest” and “transcendental importance.” This
fact alone would justify relaxing the rule on legal standing, following the liberal policy of
this Court whenever a case involves “an issue of overarching significance to our society.”
Petitioners’ legal standing should therefore be recognized and upheld.
Administrative Law; Commission on Elections; Doctrine of Exhaustion of
Administrative Remedies; Exceptions; The case of Paat vs. Court of Appeals enumerates
the instances when the rule on exhaustion of administrative remedies may be
disregarded.—The instances when the rule on exhaustion of administrative remedies
may be disregarded, as follows: “(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 does not provide a plain, speedy and adequate
remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention.”
Same; Same; Words and Phrases; Joint Venture; Definition.—This Court
in Kilosbayan v. Guingona defined joint venture as “an association of persons or
companies jointly undertaking some commercial enterprise; generally, all contribute
assets and share risks. It requires a community of interest in the performance of the
subject matter, a right to direct and govern the policy in connection therewith, and [a]
duty, which may be altered by agreement to share both in profit and losses.”
Same; Same; Public Bidding; Rationale; The essence of public bidding is, after all,
the opportunity for fair competition, and a fair basis for the precise comparison of bids.
—The essence of public bidding is, after all, an opportunity’ for fair competition, and a
fair basis for the precise comparison of bids. In common parlance, public bidding aims to
“level the playing field.” That means each bidder must bid under the same conditions;
and be subject to the same guidelines, requirements and limitations, so that the best
offer or lowest bid may be determined, all other things being equal.

PANGANIBAN, J.:

There is grave abuse of discretion (1) when an act is done contrary to the Constitution,
the law or jurisprudence;1 or (2) when it is executed whimsically, capriciously or
arbitrarily out of malice, ill will or personal bias.2 In the present case, the Commission on
Elections approved the assailed Resolution and awarded the subject Contract not only in
clear violation of law and jurisprudence, but also in reckless disregard of its own bidding
rules and procedure. For the automation of the counting and canvassing of the ballots in
the 2004 elections, Comelec awarded the Contract to "Mega Pacific Consortium" an
entity that had not participated in the bidding. Despite this grant, the poll body signed
the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that
joined the bidding but had not met the eligibility requirements.

Comelec awarded this billion-peso undertaking with inexplicable haste, without

adequately checking and observing mandatory financial, technical and legal
requirements. It also accepted the proferred computer hardware and software even if, at
the time of the award, they 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 criteria 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

Because of the foregoing violations of law and the glaring grave abuse of discretion
committed by Comelec, the Court has no choice but to exercise its solemn
"constitutional duty"3 to void the assailed Resolution and the subject Contract. 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 body’s ability
and capacity to conduct automated elections. Truly, the pith and soul of democracy --
credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and
gravely abusive acts of Comelec.

The Case

Before us is a Petition4 under Rule 65 of the Rules of Court, seeking (1) to declare null
and void Resolution No. 6074 of the Commission on Elections (Comelec), which awarded
"Phase II of the Modernization Project of the Commission to Mega Pacific Consortium
(MPC);" (2) to enjoin the implementation of any further contract that may have been
entered into by Comelec "either with Mega Pacific Consortium and/or Mega Pacific
eSolutions, Inc. (MPEI);" and (3) to compel Comelec to conduct a re-bidding of the
project. 

The Facts

The following facts are not disputed. They were culled from official documents, the
parties’ pleadings, as well as from admissions during the Oral Argument on October 7,
2003.

On June 7, 1995, Congress passed Republic Act 8046,5 which authorized Comelec to

conduct a nationwide demonstration of a computerized election system and allowed the
poll body to pilot-test the system in the March 1996 elections in the Autonomous Region
in Muslim Mindanao (ARMM).

On December 22, 1997, Congress enacted Republic Act 84366 authorizing Comelec to

use an automated election system (AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local elections. It also mandated
the poll body to acquire automated counting machines (ACMs), computer equipment,
devices and materials; and to adopt new electoral forms and printing materials.
Initially intending to implement the automation during the May 11, 1998 presidential
elections, Comelec -- in its Resolution No. 2985 dated February 9, 19987 -- eventually
decided against full national implementation and limited the automation to the
Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the
machines to read correctly some automated ballots in one town, the poll body later
ordered their manual count for the entire Province of Sulu.8

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 allegedly because of time constraints.

On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization

program for the 2004 elections. It resolved to conduct biddings for the three (3) phases
of its Automated Election System; namely, Phase I - Voter Registration and Validation
System; Phase II - Automated Counting and Canvassing System; and Phase III -
Electronic Transmission. 

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No.
172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004
elections. Upon the request of Comelec, she authorized the release of an additional P500
million.

On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to
Bid," which we quote as follows: 

"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID

The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act

Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to
apply for eligibility and to bid for the procurement by purchase, lease, lease with
option to purchase, or otherwise, supplies, equipment, materials and services
needed for a comprehensive Automated Election System, consisting of three (3)
phases: (a) registration/verification of voters, (b) automated counting and
consolidation of votes, and (c) electronic transmission of election results, with an
approved budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000)
Pesos.

Only bids from the following entities shall be entertained:

a. Duly licensed Filipino citizens/proprietorships;

b. Partnerships duly organized under the laws of the Philippines and of which
at least sixty percent (60%) of the interest belongs to citizens of the
Philippines;

c. Corporations duly organized under the laws of the Philippines, and of

which at least sixty percent (60%) of the outstanding capital stock belongs
to citizens of the Philippines;

d. Manufacturers, suppliers and/or distributors forming themselves into a

joint venture, i.e., a group of two (2) or more manufacturers, suppliers
and/or distributors that intend to be jointly and severally responsible or
liable for a particular contract, provided that Filipino ownership thereof shall
be at least sixty percent (60%); and

e. Cooperatives duly registered with the Cooperatives Development

Authority.
 Bid documents for the three (3) phases may be obtained starting 10 February
2003, during office hours from the Bids and Awards Committee (BAC)
Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del
Governador, Intramuros, Manila, upon payment at the Cash Division, Commission
on Elections, in cash or cashier’s check, payable to the Commission on Elections,
of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for
each phase. For this purpose, interested offerors, vendors, suppliers or lessors
have the option to participate in any or all of the three (3) phases of the
comprehensive Automated Election System.

A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the

Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should
there be questions on the bid documents, bidders are required to submit their
queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid
Conference.

Deadline for submission to the BAC of applications for eligibility and bid envelopes
for the supply of the comprehensive Automated Election System shall be at the
Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28
February 2003 at 9:00 a.m.

The COMELEC reserves the right to review the qualifications of the bidders after
the bidding and before the contract is executed. Should such review uncover any
misrepresentation made in the eligibility statements, or any changes in the
situation of the bidder to materially downgrade the substance of such statements,
the COMELEC shall disqualify the bidder upon due notice without any obligation
whatsoever for any expenses or losses that may be incurred by it in the
preparation of its bid."9

On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility
criteria for bidders and the schedule of activities for the project bidding, as follows:

"1.) Open to Filipino and foreign corporation duly registered and licensed to do
business and is actually doing business in the Philippines, subject to Sec. 43 of RA
9184 (An Act providing In the Modernization Standardization and Regulation of the
Procurement Activities of the Government and for other purposes etc.)

2.) Track Record:

a) For counting machines – should have been used in at least one (1)
political exercise with no less than Twenty Million Voters;

b) For verification of voters – the reference site of an existing data base

installation using Automated Fingerprint Identification System (AFIS) with at
least Twenty Million.

3.) Ten percent (10%) equity requirement shall be based on the total project cost;
and

4.) Performance bond shall be twenty percent (20%) of the bid offer.

RESOLVED moreover, that:

1) A. Due to the decision that the eligibility requirements and the rest of the
Bid documents shall be released at the same time, and the memorandum of
Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003 at 2:00 o’clock p.m. shall be the
eligibility criteria, Terms of Reference (TOR) and other pertinent documents;
 B. Pre-Bid conference shall be on February 18, 2003; and

C. Deadline for the submission and receipt of the Bids shall be on

March 5, 2003.

2) The aforementioned documents will be available at the following offices:

a) Voters Validation: Office of Comm. Javier

b) Automated Counting Machines: Office of Comm. Borra

c) Electronic Transmission: Office of Comm. Tancangco"10

On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure
the election automation machines. The Bids and Awards Committee (BAC) of Comelec
convened a pre-bid conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids. 

Among others, the RFP provided that bids from manufacturers, suppliers and/or
distributors forming themselves into a joint venture may be entertained, provided that
the Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in
the RFP as "a group of two or more manufacturers, suppliers and/or distributors that
intend to be jointly and severally responsible or liable for a particular contract."11

Basically, the public bidding was to be conducted under a two-envelope/two stage

system. The bidder’s first envelope or the Eligibility Envelope should establish the
bidder’s eligibility to bid and its qualifications to perform the acts if accepted. On the
other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the
bidding procedures as follows:

"25. Determination of Eligibility of Prospective Bidders

"25.1 The eligibility envelopes of prospective Bidders shall be opened first to

determine their eligibility. In case any of the requirements specified in
Clause 20 is missing from the first bid envelope, the BAC shall declare said
prospective Bidder as ineligible to bid. Bid envelopes of ineligible Bidders
shall be immediately returned unopened.

"25.2 The eligibility of prospective Bidders shall be determined using simple

‘pass/fail’ criteria and shall be determined as either eligible or ineligible. If
the prospective Bidder is rated ‘passed’ for all the legal, technical and
financial requirements, he shall be considered eligible. If the prospective
Bidder is rated ‘failed’ in any of the requirements, he shall be considered
ineligible.

"26. Bid Examination/Evaluation

"26.1 The BAC will examine the Bids to determine whether they are
complete, whether any computational errors have been made, whether
required securities have been furnished, whether the documents have been
properly signed, and whether the Bids are generally in order.

"26.2 The BAC shall check the submitted documents of each Bidder against
the required documents enumerated under Clause 20, to ascertain if they
are all present in the Second bid envelope (Technical Envelope). In case one
(1) or more of the required documents is missing, the BAC shall rate the Bid
concerned as ‘failed’ and immediately return to the Bidder its Third bid
envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the
first bid envelope as ‘passed’.
 "26.3 The BAC shall immediately open the Financial Envelopes of the Bidders
whose Technical Envelopes were passed or rated on or above the passing
score. Only Bids that are determined to contain all the bid requirements for
both components shall be rated ‘passed’ and shall immediately be
considered for evaluation and comparison.

"26.4 In the opening and examination of the Financial Envelope, the BAC
shall announce and tabulate the Total Bid Price as calculated. Arithmetical
errors will be rectified on the following basis: If there is a discrepancy
between words and figures, the amount in words will prevail. If there is a
discrepancy between the unit price and the total price that is obtained by
multiplying the unit price and the quantity, the unit price shall prevail and
the total price shall be corrected accordingly. If there is a discrepancy
between the Total Bid Price and the sum of the total prices, the sum of the
total prices prevail and the Total Bid Price shall be corrected accordingly.

"26.5 Financial Proposals which do not clearly state the Total Bid Price shall
be rejected. Also, Total Bid Price as calculated that exceeds the approved
budget for the contract shall also be rejected.

27. Comparison of Bids

27.1 The bid price shall be deemed to embrace all costs, charges and fees
associated with carrying out all the elements of the proposed Contract,
including but not limited to, license fees, freight charges and taxes.

27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’
and rank the same in ascending order.

xxxxxxxxx

"29. Postqualification

"29.1 The BAC will determine to its satisfaction whether the Bidder selected
as having submitted the lowest calculated bid is qualified to satisfactorily
perform the Contract.

"29.2 The determination will take into account the Bidder’s financial,
technical and production capabilities/resources. It will be based upon an
examination of the documentary evidence of the Bidder’s qualification
submitted by the Bidder as well as such other information as the BAC deems
necessary and appropriate.

"29.3 A bid determined as not substantially responsive will be rejected by

the BAC and may not subsequently be made responsive by the Bidder by
correction of the non-conformity.

"29.4 The BAC may waive any informality or non-conformity or irregularity in

a bid which does not constitute a material deviation, provided such waiver
does not prejudice or affect the relative ranking of any Bidder.

"29.5 Should the BAC find that the Bidder complies with the legal, financial
and technical requirements, it shall make an affirmative determination which
shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it
will make a negative determination which will result in rejection of the
Bidder’s bid, in which event the BAC will proceed to the next lowest
calculated bid to make a similar determination of that Bidder’s capabilities to
perform satisfactorily."12
Out of the 57 bidders,13 the BAC found MPC and the Total Information Management
Corporation (TIMC) eligible. For technical evaluation, they were referred to the BAC’s
Technical Working Group (TWG) and the Department of Science and Technology (DOST).

In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that
both MPC and TIMC had obtained a number of failed marks in the technical evaluation.
Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated
Resolution No. 6074 awarding the project to MPC. The Commission publicized this
Resolution and the award of the project to MPC on May 16, 2003. 

On May 29, 2003, five individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter14 to Comelec Chairman
Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC "due
to glaring irregularities in the manner in which the bidding process had been conducted."
Citing therein the noncompliance with eligibility as well as technical and procedural
requirements (many of which have been discussed at length in the Petition), they sought
a re-bidding. 

In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking through Atty.

Jaime Paz, his head executive assistant -- rejected the protest and declared that the
award "would stand up to the strictest scrutiny."

Hence, the present Petition.16

The Issues

In their Memorandum, petitioners raise the following issues for our consideration:

"1. The COMELEC awarded and contracted with a non-eligible entity; x x x

"2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC changed the
rules after the bidding in effect changing the nature of the contract bidded upon.

"3. Petitioners have locus standi.

"4. Instant Petition is not premature. Direct resort to the Supreme Court is
justified."17

In the main, the substantive issue is whether the Commission on Elections, the agency
vested with the exclusive constitutional mandate to oversee elections, gravely abused its
discretion when, in the exercise of its administrative functions, it awarded to MPC the
contract for the second phase of the comprehensive Automated Election System.

Before discussing the validity of the award to MPC, however, we deem it proper to first
pass upon the procedural issues: the legal standing of petitioners and the alleged
prematurity of the Petition.

This Court’s Ruling

The Petition is meritorious.

First Procedural Issue:

Locus Standi of Petitioners

Respondents chorus that petitioners do not possess locus standi, inasmuch as they are
not challenging the validity or constitutionality of RA 8436. Moreover, petitioners
supposedly admitted during the Oral Argument that no law had been violated by the
award of the Contract. Furthermore, they allegedly have no actual and material interest
in the Contract and, hence, do not stand to be injured or prejudiced on account of the
award. 

On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters
and concerned citizens -- respond that the issues central to this case are "of
transcendental importance and of national interest." Allegedly, Comelec’s flawed bidding
and questionable award of the Contract to an unqualified entity would impact directly on
the success or the failure of the electoral process. Thus, any taint on the sanctity of the
ballot as the expression of the will of the people would inevitably affect their faith in the
democratic system of government. Petitioners further argue that the award of any
contract for automation involves disbursement of public funds in gargantuan amounts;
therefore, public interest requires that the laws governing the transaction must be
followed strictly. 

We agree with petitioners. Our nation’s political and economic future virtually hangs in
the balance, pending the outcome of the 2004 elections. Hence, there can be no serious
doubt that the subject matter of this case is "a matter of public concern and imbued with
public interest";18 in other words, it is of "paramount public interest"19 and
"transcendental importance."20 This fact alone would justify relaxing the rule on legal
standing, following the liberal policy of this Court whenever a case involves "an issue of
overarching significance to our society."21 Petitioners’ legal standing should therefore be
recognized and upheld.

Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of
"illegal disbursement of public funds,"22 or if public money is being "deflected to any
improper purpose";23 or when petitioners seek to restrain respondent from "wasting
public funds through the enforcement of an invalid or unconstitutional law."24 In the
instant case, individual petitioners, suing as taxpayers, assert a material interest in
seeing to it that public funds are properly and lawfully used. In the Petition, they claim
that the bidding was defective, the winning bidder not a qualified entity, and the award
of the Contract contrary to law and regulation. Accordingly, they seek to restrain
respondents from implementing the Contract and, necessarily, from making any
unwarranted expenditure of public funds pursuant thereto. Thus, we hold that
petitioners possess locus standi.

Second Procedural Issue:

Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies

Respondents claim that petitioners acted prematurely, since they had not first utilized
the protest mechanism available to them under RA 9184, the Government Procurement
Reform Act, for the settlement of disputes pertaining to procurement contracts.

Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards
Committee in all stages of procurement may be lodged with the head of the procuring
entity by filing a verified position paper and paying a protest fee. Section 57 of the same
law mandates that in no case shall any such protest stay or delay the bidding process,
but it must first be resolved before any award is made.

On the other hand, Section 58 provides that court action may be resorted to only after
the protests contemplated by the statute shall have been completed. Cases filed in
violation of this process are to be dismissed for lack of jurisdiction. Regional trial courts
shall have jurisdiction over final decisions of the head of the procuring entity, and court
actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.

Respondents assert that throughout the bidding process, petitioners never questioned
the BAC Report finding MPC eligible to bid and recommending the award of the Contract
to it (MPC). According to respondents, the Report should have been appealed to the
Comelc en banc, pursuant to the aforementioned sections of RA 9184. In the absence of
such appeal, the determination and recommendation of the BAC had become final.

The Court is not persuaded.

Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15,
2003, awarding the project to Respondent MPC even before the BAC managed to issue
its written report and recommendation on April 21, 2003. Thus, how could petitioners
have appealed the BAC’s recommendation or report to the head of the procuring entity
(the chairman of Comelec), when the Comelec en banc had already approved the award
of the contract to MPC even before petitioners learned of the BAC recommendation? 

It is claimed25 by Comelec that during its April 15, 2003 session, it received and
approved the verbal report and recommendation of the BAC for the award of the
Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and
recommendation by submitting it in writing on April 21, 2003. Respondents insist that
the law does not require that the BAC Report be in writing before Comelec can act
thereon; therefore, there is allegedly nothing irregular about the Report as well as the
en banc Resolution. 

However, it is obvious that petitioners could have appealed the BAC’s report and
recommendation to the head of the procuring entity (the Comelec chair) only upon their
discovery thereof, which at the very earliest would have been on April 21, 2003, when
the BAC actually put its report in writing and finally released it. Even then, what would
have been the use of protesting/appealing the report to the Comelec chair, when by that
time the Commission en banc (including the chairman himself) had already approved the
BAC Report and awarded the Contract to MPC? 

And even assuming arguendo that petitioners had somehow gotten wind of the verbal
BAC report on April 15, 2003 (immediately after the en banc session), at that point the
Commission en banc had already given its approval to the BAC Report along with the
award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for
petitioners to avail themselves of the administrative remedy that the Commission is so
impiously harping on. There is no doubt that they had not been accorded the
opportunity to avail themselves of the process provided under Section 55 of RA 9184,
according to which a protest against a decision of the BAC may be filed with the head of
the procuring entity. Nemo tenetur ad impossible,26 to borrow private respondents’
favorite Latin excuse.27

Some Observations on the BAC Report to the Comelec

We shall return to this issue of alleged prematurity shortly, but at this interstice, we
would just want to put forward a few observations regarding the BAC Report and the
Comelec en banc’s approval thereof.

First, Comelec contends that there was nothing unusual about the fact that the Report
submitted by the BAC came only after the former had already awarded the Contract,
because the latter had been asked to render its report and recommendation orally
during the Commission’s en banc session on April 15, 2003. Accordingly, Comelec
supposedly acted upon such oral recommendation and approved the award to MPC on
the same day, following which the recommendation was subsequently reduced into
writing on April 21, 2003. While not entirely outside the realm of the possible, this
interesting and unique spiel does not speak well of the process that Comelec supposedly
went through in making a critical decision with respect to a multi-billion-peso contract.

We can imagine that anyone else standing in the shoes of the Honorable Commissioners
would have been extremely conscious of the overarching need for utter transparency.
They would have scrupulously avoided the slightest hint of impropriety, preferring to
maintain an exacting regularity in the performance of their duties, instead of trying to
break a speed record in the award of multi-billion-peso contracts. After all, between April
15 and April 21 were a mere six (6) days. Could Comelec not have waited out six more
days for the written report of the BAC, instead of rushing pell-mell into the arms of MPC?
Certainly, respondents never cared to explain the nature of the Commission’s dire need
to act immediately without awaiting the formal, written BAC Report.

In short, the Court finds it difficult to reconcile the uncommon dispatch with which
Comelec acted to approve the multi-billion-peso deal, with its claim of having been
impelled by only the purest and most noble of motives. 

At any rate, as will be discussed later on, several other factors combine to lend negative
credence to Comelec’s tale.

Second, without necessarily ascribing any premature malice or premeditation on the part
of the Comelec officials involved, it should nevertheless be conceded that this cart-
before-the-horse maneuver (awarding of the Contract ahead of the BAC’s written report)
would definitely serve as a clever and effective way of averting and frustrating any
impending protest under Section 55.

Having made the foregoing observations, we now go back to the question of exhausting
administrative remedies. Respondents may not have realized it, but the letter addressed
to Chairman Benjamin Abalos Sr. dated May 29, 200328 serves to eliminate the
prematurity issue as it was an actual written protest against the decision of the poll body
to award the Contract. The letter was signed by/for, inter alia, two of herein petitioners:
the Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol.

Such letter-protest is sufficient compliance with the requirement to exhaust

administrative remedies particularly because it hews closely to the procedure outlined in
Section 55 of RA 9184.

And even without that May 29, 2003 letter-protest, the Court still holds that petitioners
need not exhaust administrative remedies in the light of Paat v. Court of Appeals.29 Paat
enumerates the instances when the rule on exhaustion of administrative remedies may
be disregarded, as follows: 

"(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 does not provide a plain, speedy and adequate remedy, and 
 (11) when there are circumstances indicating the urgency of judicial
intervention."30

The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11:
"(7) when to require exhaustion of administrative remedies would be unreasonable; (10)
when the rule does not provide a plain, speedy and adequate remedy, and (11) when
there are circumstances indicating the urgency of judicial intervention." As already
stated, Comelec itself made the exhaustion of administrative remedies legally impossible
or, at the very least, "unreasonable." 

In any event, the peculiar circumstances surrounding the unconventional rendition of the
BAC Report and the precipitate awarding of the Contract by the Comelec en banc -- plus
the fact that it was racing to have its Contract with MPC implemented in time for the
elections in May 2004 (barely four months away) -- have combined to bring about the
urgent need for judicial intervention, thus prompting this Court to dispense with the
procedural exhaustion of administrative remedies in this case.

Main Substantive Issue:

Validity of the Award to MPC

We come now to the meat of the controversy. Petitioners contend that the award is
invalid, since Comelec gravely abused its discretion when it did the following:

1. Awarded the Contract to MPC though it did not even participate in the bidding

2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements

3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the
issuance by the BAC of its Report, which formed the basis of the assailed
Resolution, only on April 21, 200331

4. Awarded the Contract, notwithstanding the fact that during the bidding process,
there were violations of the mandatory requirements of RA 8436 as well as those
set forth in Comelec’s own Request for Proposal on the automated election system

5. Refused to declare a failed bidding and to conduct a re-bidding despite the

failure of the bidders to pass the technical tests conducted by the Department of
Science and Technology 

6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding
for the automated counting machines

After reviewing the slew of pleadings as well as the matters raised during the Oral
Argument, the Court deems it sufficient to focus discussion on the following major areas
of concern that impinge on the issue of grave abuse of discretion:

A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder

B. Failure of the automated counting machines (ACMs) to pass the DOST technical
tests

C. Remedial measures and re-testings undertaken by Comelec and DOST after the
award, and their effect on the present controversy

A.
Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a
Bidder

On the question of the identity and the existence of the real bidder, respondents insist
that, contrary to petitioners’ allegations, the bidder was not Mega Pacific eSolutions, Inc.
(MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the
bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was
but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid,
signed by the president of MPEI allegedly for and on behalf of MPC. They also call
attention to the official receipt issued to MPC, acknowledging payment for the bidding
documents, as proof that it was the "consortium" that participated in the bidding
process.

We do not agree. The March 7, 2003 letter, signed by only one signatory -- "Willy U. Yu,
President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific
Consortium" -- and without any further proof, does not by itself prove the existence of
the consortium. It does not show that MPEI or its president have been duly pre-
authorized by the other members of the putative consortium to represent them, to bid
on their collective behalf and, more important, to commit them jointly and severally to
the bid undertakings. The letter is purely self-serving and uncorroborated.

Neither does an official receipt issued to MPC, acknowledging payment for the bidding
documents, constitute proof that it was the purported consortium that participated in the
bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to
the real identity orexistence of the supposed payor.

To assure itself properly of the due existence (as well as eligibility and qualification) of
the putative consortium, Comelec’s BAC should have examined the bidding documents
submitted on behalf of MPC. They would have easily discovered the following fatal flaws.

Two-Envelope,

Two-Stage System

As stated earlier in our factual presentation, the public bidding system designed by
Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election)
mandated the use of a two-envelope, two-stage system. A bidder’s first envelope
(Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and
capacity to perform the contract if its bid was accepted, while the second envelope
would be the Bid Envelope itself.

The Eligibility Envelope was to contain legal documents such as articles of incorporation,
business registrations, licenses and permits, mayor’s permit, VAT certification, and so
forth; technical documents containing documentary evidence to establish the track
record of the bidder and its technical and production capabilities to perform the contract;
and financial documents, including audited financial statements for the last three years,
to establish the bidder’s financial capacity.

In the case of a consortium or joint venture desirous of participating in the bidding, it

goes without saying that the Eligibility Envelope would necessarily have to include a
copy of the joint venture agreement, the consortium agreement or memorandum of
agreement -- or a business plan or some other instrument of similar import --
establishing the due existence, composition and scope of such aggrupation. Otherwise,
how would Comelec know who it was dealing with, and whether these parties are
qualified and capable of delivering the products and services being offered for bidding?32

In the instant case, no such instrument was submitted to Comelec during the bidding
process. This fact can be conclusively ascertained by scrutinizing the two-inch thick
"Eligibility Requirements" file submitted by Comelec last October 9, 2003, in partial
compliance with this Court’s instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to Comelec by MPEI
allegedly on behalf of MPC, in connection with the bidding conducted in March 2003.
Included in the file are the incorporation papers and financial statements of the
members of the supposed consortium and certain certificates, licenses and permits
issued to them.

However, there is no sign whatsoever of any joint venture agreement, consortium

agreement, memorandum of agreement, or business plan executed among the members
of the purported consortium.

The only logical conclusion is that no such agreement was ever submitted to the
Comelec for its consideration, as part of the bidding process.

It thus follows that, prior the award of the Contract, there was no documentary or other
basis for Comelec to conclude that a consortium had actually been formed amongst
MPEI, SK C&C and WeSolv, along with Election.com and ePLDT.33 Neither was there
anything to indicate the exact relationships between and among these firms; their
diverse roles, undertakings and prestations, if any, relative to the prosecution of the
project, the extent of their respective investments (if any) in the supposed consortium
or in the project; and the precise nature and extent of their respective liabilities with
respect to the contract being offered for bidding. And apart from the self-serving letter
of March 7, 2003, there was not even any indication that MPEI was the lead company
duly authorized to act on behalf of the others.

So, it necessarily follows that, during the bidding process, Comelec had no basis at all
for determining that the alleged consortium really existed and was eligible and qualified;
and that the arrangements among the members were satisfactory and sufficient to
ensure delivery on the Contract and to protect the government’s interest.

Notwithstanding such deficiencies, Comelec still deemed the "consortium" eligible to

participate in the bidding, proceeded to open its Second Envelope, and eventually
awarded the bid to it, even though -- per the Comelec’s own RFP -- the BAC should have
declared the MPC ineligible to bid and returned the Second (Bid) Envelope unopened. 

Inasmuch as Comelec should not have considered MPEI et al. as comprising a

consortium or joint venture, it should not have allowed them to avail themselves of the
provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law),
as amended by RA 7718. This provision states in part that a joint venture/consortium
proponent shall be evaluated based on the individual or collective experience of the
member-firms of the joint venture or consortium and of the contractor(s) that it has
engaged for the project. Parenthetically, respondents have uniformly argued that the
said IRR of RA 6957, as amended, have suppletory application to the instant case.

Hence, had the proponent MPEI been evaluated based solely on its own experience,
financial and operational track record or lack thereof, it would surely not have qualified
and would have been immediately considered ineligible to bid, as respondents readily
admit.

At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to
observe its own rules, policies and guidelines with respect to the bidding process,
thereby negating a fair, honest and competitive bidding.

Commissioners Not Aware of Consortium

In this regard, the Court is beguiled by the statements of Commissioner Florentino

Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The good
commissioner affirmed that he was aware, of his own personal knowledge, that there
had indeed been a written agreement among the "consortium" members,34 although it
was an internal matter among them,35 and of the fact that it would be presented by
counsel for private respondent.36

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C.
Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner-in-
charge of Comelec’s Legal Department, he had never seen, even up to that late date,
the agreement he spoke of.37 Under further questioning, he was likewise unable to
provide any information regarding the amounts invested into the project by several
members of the claimed consortium.38 A short while later, he admitted that the
Commission had not taken a look at the agreement (if any).39

He tried to justify his position by claiming that he was not a member of the BAC. Neither
was he the commissioner-in-charge of the Phase II Modernization project (the
automated election system); but that, in any case, the BAC and the Phase II
Modernization Project Team did look into the aspect of the composition of the
consortium.

It seems to the Court, though, that even if the BAC or the Phase II Team had taken
charge of evaluating the eligibility, qualifications and credentials of the consortium-
bidder, still, in all probability, the former would have referred the task to Commissioner
Tuason, head of Comelec’s Legal Department. That task was the appreciation and
evaluation of the legal effects and consequences of the terms, conditions, stipulations
and covenants contained in any joint venture agreement, consortium agreement or a
similar document -- assuming of course that any of these was available at the time. The
fact that Commissioner Tuason was barely aware of the situation bespeaks the complete
absence of such document, or the utter failure or neglect of the Comelec to examine it --
assuming it was available at all -- at the time the award was made on April 15, 2003.

In any event, the Court notes for the record that Commissioner Tuason basically
contradicted his statements in open court about there being one written agreement
among all the consortium members, when he subsequently referred40 to the four (4)
Memoranda of Agreement (MOAs) executed by them.41

At this juncture, one might ask: What, then, if there are four MOAs instead of one or
none at all? Isn’t it enough that there are these corporations coming together to carry
out the automation project? Isn’t it true, as respondent aver, that nowhere in the RFP
issued by Comelec is it required that the members of the joint venture execute a single
written agreement to prove the existence of a joint venture. Indeed, the intention to be
jointly and severally liable may be evidenced not only by a single joint venture
agreement, but also by supplementary documents executed by the parties signifying
such intention. What then is the big deal?

The problem is not that there are four agreements instead of only one. The problem is
that Comelec never bothered to check. It never based its decision on documents or
other proof that would concretely establish the existence of the claimed consortium or
joint venture or agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his company
represented a "consortium" of several different corporations. It concluded forthwith that
a consortium indeed existed, composed of such and such members, and thereafter
declared that the entity was eligible to bid.

True, copies of financial statements and incorporation papers of the alleged "consortium"
members were submitted. But these papers did not establish the existence of a
consortium, as they could have been provided by the companies concerned for purposes
other than to prove that they were part of a consortium or joint venture. For instance,
the papers may have been intended to show that those companies were each qualified
to be a sub-contractor (and nothing more) in a major project. Those documents did not
by themselves support the assumption that a consortium or joint venture existed among
the companies.
In brief, despite the absence of competent proof as to the existence and eligibility of the
alleged consortium (MPC), its capacity to deliver on the Contract, and the members’
joint and several liability therefor, Comelec nevertheless assumed that such consortium
existed and was eligible. It then went ahead and considered the bid of MPC, to which the
Contract was eventually awarded, in gross violation of the former’s own bidding rules
and procedures contained in its RFP. Therein lies Comelec’s grave abuse of discretion.

Sufficiency of the Four Agreements

Instead of one multilateral agreement executed by, and effective and binding on, all the
five "consortium members" -- as earlier claimed by Commissioner Tuason in open court
-- it turns out that what was actually executed were four (4) separate and distinct
bilateral Agreements.42 Obviously, Comelec was furnished copies of these Agreements
only after the bidding process had been terminated, as these were not included in the
Eligibility Documents. These Agreements are as follows: 

· A Memorandum of Agreement between MPEI and SK C&C 

· A Memorandum of Agreement between MPEI and WeSolv 

· A "Teaming Agreement" between MPEI and Election.com Ltd. 

· A "Teaming Agreement" between MPEI and ePLDT 

In sum, each of the four different and separate bilateral Agreements is valid and binding
only between MPEI and the other contracting party, leaving the other "consortium"
members total strangers thereto. Under this setup, MPEI dealt separately with each of
the "members," and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had
nothing to do with one another, each dealing only with MPEI.

Respondents assert that these four Agreements were sufficient for the purpose of
enabling the corporations to still qualify (even at that late stage) as a consortium or
joint venture, since the first two Agreements had allegedly set forth the joint and several
undertakings among the parties, whereas the latter two clarified the parties’ respective
roles with regard to the Project, with MPEI being the independent contractor and
Election.com and ePLDT the subcontractors.

Additionally, the use of the phrase "particular contract" in the Comelec’s Request for
Proposal (RFP), in connection with the joint and several liabilities of companies in a joint
venture, is taken by them to mean that all the members of the joint venture need not be
solidarily liable for the entire project or joint venture, because it is sufficient that the
lead company and the member in charge of a particular contract or aspect of the joint
venture agree to be solidarily liable. 

At this point, it must be stressed most vigorously that the submission of the four
bilateral Agreements to Comelec after the end of the bidding process did nothing to
eliminate the grave abuse of discretion it had already committed on April 15, 2003.

Deficiencies Have Not Been "Cured"

In any event, it is also claimed that the automation Contract awarded by Comelec
incorporates all documents executed by the "consortium" members, even if these
documents are not referred to therein. The basis of this assertion appears to be the
passages from Section 1.4 of the Contract, which is reproduced as follows: 

"All Contract Documents shall form part of the Contract even if they or any one of
them is not referred to or mentioned in the Contract as forming a part thereof.
Each of the Contract Documents shall be mutually complementary and explanatory
of each other such that what is noted in one although not shown in the other shall
 be considered contained in all, and what is required by any one shall be as binding
as if required by all, unless one item is a correction of the other.

"The intent of the Contract Documents is the proper, satisfactory and timely
execution and completion of the Project, in accordance with the Contract
Documents. Consequently, all items necessary for the proper and timely execution
and completion of the Project shall be deemed included in the Contract."

Thus, it is argued that whatever perceived deficiencies there were in the supplementary
contracts -- those entered into by MPEI and the other members of the "consortium" as
regards their joint and several undertakings -- have been cured. Better still, such
deficiencies have supposedly been prevented from arising as a result of the above-
quoted provisions, from which it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other members.

The foregoing argument is unpersuasive. First, the contract being referred to, entitled
"The Automated Counting and Canvassing Project Contract," is between Comelec and
MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party
to the Contract. Nowhere in that Contract is there any mention of a consortium or joint
venture, of members thereof, much less of joint and several liability. Supposedly
executed sometime in May 2003,43 the Contract bears a notarization date of June 30,
2003, and contains the signature of Willy U. Yu signing as president of MPEI (not for and
on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2 that
MPEI (not MPC) is to supply the Equipment and perform the Services under the
Contract, in accordance with the appendices thereof; nothing whatsoever is said about
any consortium or joint venture or partnership.

Second, the portions of Section 1.4 of the Contract reproduced above do not have the
effect of curing (much less preventing) deficiencies in the bilateral agreements entered
into by MPEI with the other members of the "consortium," with respect to their joint and
several liabilities. The term "Contract Documents," as used in the quoted passages of
Section 1.4, has a well-defined meaning and actually refers only to the following
documents:

· The Contract itself along with its appendices

· The Request for Proposal (also known as "Terms of Reference") issued by the
Comelec, including the Tender Inquiries and Bid Bulletins 

· The Tender Proposal submitted by MPEI

In other words, the term "Contract Documents" cannot be understood as referring to or

including the MOAs and the Teaming Agreements entered into by MPEI with SK C&C,
WeSolv, Election.com and ePLDT. This much is very clear and admits of no debate. The
attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming
Agreements is simply unwarranted.

Third and last, we fail to see how respondents can arrive at the conclusion that, from the
above-quoted provisions, it can be immediately established that each of the members of
MPC assumes the same joint and several liability as the other members. Earlier,
respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK
C&C, and between MPEI and WeSolv) had set forth the joint and several undertakings
among the parties; whereas the two Teaming Agreements clarified the parties’
respective roles with regard to the Project, with MPEI being the independent contractor
and Election.com and ePLDT the subcontractors. 

Obviously, given the differences in their relationships, their respective liabilities cannot
be the same. Precisely, the very clear terms and stipulations contained in the MOAs and
the Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv, Election.com
and ePLDT -- negate the idea that these "members" are on a par with one another and
are, as such, assuming the same joint and several liability. 

Moreover, respondents have earlier seized upon the use of the term "particular contract"
in the Comelec’s Request for Proposal (RFP), in order to argue that all the members of
the joint venture did not need to be solidarily liable for the entire project or joint
venture. It was sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture would agree to be solidarily liable. The
glaring lack of consistency leaves us at a loss. Are respondents trying to establish the
same joint and solidary liability among all the "members" or not? 

Enforcement of Liabilities Problematic

Next, it is also maintained that the automation Contract between Comelec and the MPEI
confirms the solidary undertaking of the lead company and the consortium member
concerned for each particular Contract, inasmuch as the position of MPEI and anyone
else performing the services contemplated under the Contract is described therein as
that of an independent contractor.

The Court does not see, however, how this conclusion was arrived at. In the first place,
the contractual provision being relied upon by respondents is Article 14, "Independent
Contractors," which states: "Nothing contained herein shall be construed as establishing
or creating between the COMELEC and MEGA the relationship of employee and employer
or principal and agent, it being understood that the position of MEGA and of anyone
performing the Services contemplated under this Contract, is that of an independent
contractor."

Obviously, the intent behind the provision was simply to avoid the creation of an
employer-employee or a principal-agent relationship and the complications that it would
produce. Hence, the Article states that the role or position of MPEI, or anyone else
performing on its behalf, is that of an independent contractor. It is obvious to the Court
that respondents are stretching matters too far when they claim that, because of this
provision, the Contract in effect confirms the solidary undertaking of the lead company
and the consortium member concerned for the particular phase of the project. This
assertion is an absolute non sequitur.

Enforcement of Liabilities Under the Civil Code Not Possible

In any event, it is claimed that Comelec may still enforce the liability of the "consortium"
members under the Civil Code provisions on partnership, reasoning that MPEI et al.
represented themselves as partners and members of MPC for purposes of bidding for the
Project. They are, therefore, liable to the Comelec to the extent that the latter relied
upon such representation. Their liability as partners is solidary with respect to
everything chargeable to the partnership under certain conditions. 

The Court has two points to make with respect to this argument. First, it must be
recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves as
partners and members of MPC, whether for purposes of bidding or for something else. It
was MPEI alone that represented them to be members of a "consortium" it supposedly
headed. Thus, its acts may not necessarily be held against the other "members." 

Second, this argument of the OSG in its Memorandum44 might possibly apply in the
absence of a joint venture agreement or some other writing that discloses the
relationship of the "members" with one another. But precisely, this case does not deal
with a situation in which there is nothing in writing to serve as reference, leaving
Comelec to rely on mere representations and therefore justifying a falling back on the
rules on partnership. For, again, the terms and stipulations of the MOAs entered into by
MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI with
Election.com and ePLDT (copies of which have been furnished the Comelec) are very
clear with respect to the extent and the limitations of the firms’ respective liabilities.

In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and
several with MPEI, are limited only to the particular areas of work wherein their services
are engaged or their products utilized. As for Election.com and ePLDT, their separate
"Teaming Agreements" specifically ascribe to them the role of subcontractor vis-à-vis
MPEI as contractor and, based on the terms of their particular agreements, neither
Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec.45 It follows
then that in the instant case, there is no justification for anyone, much less Comelec, to
resort to the rules on partnership and partners’ liabilities.

Eligibility of a Consortium Based on the Collective Qualifications of Its Members

Respondents declare that, for purposes of assessing the eligibility of the bidder, the
members of MPC should be evaluated on a collective basis. Therefore, they contend, the
failure of MPEI to submit financial statements (on account of its recent incorporation)
should not by itself disqualify MPC, since the other members of the "consortium" could
meet the criteria set out in the RFP.

Thus, according to respondents, the collective nature of the undertaking of the members
of MPC, their contribution of assets and sharing of risks, and the community of their
interest in the performance of the Contract lead to these reasonable conclusions: (1)
that their collective qualifications should be the basis for evaluating their eligibility; (2)
that the sheer enormity of the project renders it improbable to expect any single entity
to be able to comply with all the eligibility requirements and undertake the project by
itself; and (3) that, as argued by the OSG, the RFP allows bids from manufacturers,
suppliers and/or distributors that have formed themselves into a joint venture, in
recognition of the virtual impossibility of a single entity’s ability to respond to the
Invitation to Bid. 

Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957
(the Build-Operate-Transfer Law) as amended by RA 7718 would be applicable, as
proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a
joint venture/consortium proponent shall be evaluated based on the individual or the
collective experience of the member-firms of the joint venture/consortium and of the
contractors the proponent has engaged for the project.

Unfortunately, this argument seems to assume that the "collective" nature of the
undertaking of the members of MPC, their contribution of assets and sharing of risks,
and the "community" of their interest in the performance of the Contract entitle MPC to
be treated as a joint venture or consortium; and to be evaluated accordingly on the
basis of the members’ collective qualifications when, in fact, the evidence before the
Court suggest otherwise.

This Court in Kilosbayan v. Guingona46 defined joint venture as "an association of

persons or companies jointly undertaking some commercial enterprise; generally, all
contribute assets and share risks. It requires a community of interest in the performance
of the subject matter, a right to direct and govern the policy in connection therewith,
and [a] duty, which may be altered by agreement to share both in profit and losses."

Going back to the instant case, it should be recalled that the automation Contract with
Comelec was not executed by the "consortium" MPC -- or by MPEI for and on behalf of
MPC -- but by MPEI, period. The said Contract contains no mention whatsoever of any
consortium or members thereof. This fact alone seems to contradict all the suppositions
about a joint undertaking that would normally apply to a joint venture or consortium:
that it is a commercial enterprise involving a community of interest, a sharing of risks,
profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the Memorandum of
Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5, 2003. The
body of the MOA consists of just seven (7) short paragraphs that would easily fit in one
page! It reads as follows: 

"1. The parties agree to cooperate in successfully implementing the Project in the
substance and form as may be most beneficial to both parties and other
subcontractors involved in the Project.

"2. Mega Pacific shall be responsible for any contract negotiations and signing with
the COMELEC and, subject to the latter’s approval, agrees to give WeSolv an
opportunity to be present at meetings with the COMELEC concerning WeSolv’s
portion of the Project.

"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the
particular products and/or services supplied by the former for the Project.

"4. Each party shall bear its own costs and expenses relative to this agreement
unless otherwise agreed upon by the parties.

"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable or the attainment of the objectives and purposes of this
Agreement.

"6. In the event that the parties fail to agree on the terms and conditions of the
supply of the products and services including but not limited to the scope of the
products and services to be supplied and payment terms, WeSolv shall cease to be
bound by its obligations stated in the aforementioned paragraphs.

"7. Any dispute arising from this Agreement shall be settled amicably by the
parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)

Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd.,
dated March 9, 2003, the body of which consists of only six (6) paragraphs, which we
quote: 

"1. All parties agree to cooperate in achieving the Consortium’s objective of

successfully implementing the Project in the substance and form as may be most
beneficial to the Consortium members and in accordance w/ the demand of the
RFP.

"2. Mega Pacific shall have full powers and authority to represent the Consortium
with the Comelec, and to enter and sign, for and in behalf of its members any and
all agreement/s which maybe required in the implementation of the Project.

"3. Each of the individual members of the Consortium shall be jointly and severally
liable with the Lead Firm for the particular products and/or services supplied by
such individual member for the project, in accordance with their respective
undertaking or sphere of responsibility.

"4. Each party shall bear its own costs and expenses relative to this agreement
unless otherwise agreed upon by the parties.

"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable for the attainment of the objectives and purposes of this
Agreement.
 "6. Any dispute arising from this Agreement shall be settled amicably by the
parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)

It will be noted that the two Agreements quoted above are very similar in wording.
Neither of them contains any specifics or details as to the exact nature and scope of the
parties’ respective undertakings, performances and deliverables under the Agreement
with respect to the automation project. Likewise, the two Agreements are quite bereft of
pesos-and-centavos data as to the amount of investments each party contributes, its
respective share in the revenues and/or profit from the Contract with Comelec, and so
forth -- all of which are normal for agreements of this nature. Yet, according to public
and private respondents, the participation of MPEI, WeSolv and SK C&C comprises fully
90 percent of the entire undertaking with respect to the election automation project,
which is worth about P1.3 billion. 

As for Election.com and ePLDT, the separate "Teaming Agreements" they entered into
with MPEI for the remaining 10 percent of the entire project undertaking are ironically
much longer and more detailed than the MOAs discussed earlier. Although specifically
ascribing to them the role of subcontractor vis-à-vis MPEI as contractor, these
Agreements are, however, completely devoid of any pricing data or payment terms.
Even the appended Schedules supposedly containing prices of goods and services are
shorn of any price data. Again, as mentioned earlier, based on the terms of their
particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and
severally liable to Comelec.

It is difficult to imagine how these bare Agreements -- especially the first two -- could be
implemented in practice; and how a dispute between the parties or a claim by Comelec
against them, for instance, could be resolved without lengthy and debilitating litigations.
Absent any clear-cut statement as to the exact nature and scope of the parties’
respective undertakings, commitments, deliverables and covenants, one party or
another can easily dodge its obligation and deny or contest its liability under the
Agreement; or claim that it is the other party that should have delivered but failed to.

Likewise, in the absence of definite indicators as to the amount of investments to be

contributed by each party, disbursements for expenses, the parties’ respective shares in
the profits and the like, it seems to the Court that this situation could readily give rise to
all kinds of misunderstandings and disagreements over money matters.

Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed
joint and several liabilities of the members of the "consortium." The Court is not even
mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to
agree on the scope, the terms and the conditions for the supply of the products and
services under the Agreement. In that situation, by virtue of paragraph 6 of its MOA,
WeSolv would perforce cease to be bound by its obligations -- including its joint and
solidary liability with MPEI under the MOA -- and could forthwith disengage from the
project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI by
simply failing to agree. Where would that outcome leave MPEI and Comelec?

To the Court, this strange and beguiling arrangement of MPEI with the other companies
does not qualify them to be treated as a consortium or joint venture, at least of the type
that government agencies like the Comelec should be dealing with. With more reason is
it unable to agree to the proposal to evaluate the members of MPC on a collective basis.

In any event, the MPC members claim to be a joint venture/consortium; and

respondents have consistently been arguing that the IRR for RA 6957, as amended,
should be applied to the instant case in order to allow a collective evaluation of
consortium members. Surprisingly, considering these facts, respondents have not
deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR for
RA 6957 as amended. 

According to the aforementioned provision, if the project proponent is a joint venture or

consortium, the members or participants thereof are required to submit a sworn
statement that, if awarded the contract, they shall bind themselves to be jointly,
severally and solidarily liable for the project proponent’s obligations thereunder. This
provision was supposed to mirror Section 5 of RA 6957, as amended, which states: "In
all cases, a consortium that participates in a bid must present proof that the members of
the consortium have bound themselves jointly and severally to assume responsibility for
any project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the contract."
The Court has certainly not seen any joint and several undertaking by the MPC members
that even approximates the tenor of that which is described above. We fail to see why
respondents should invoke the IRR if it is for their benefit, but refuse to comply with it
otherwise. 

B.

DOST Technical Tests Flunked by the Automated Counting Machines

Let us now move to the second subtopic, which deals with the substantive issue: the
ACM’s failure to pass the tests of the Department of Science and Technology (DOST).

After respondent "consortium" and the other bidder, TIM, had submitted their respective
bids on March 10, 2003, the Comelec’s BAC -- through its Technical Working Group
(TWG) and the DOST -- evaluated their technical proposals. Requirements that were
highly technical in nature and that required the use of certain equipment in the
evaluation process were referred to the DOST for testing. The Department reported
thus:

TEST RESULTS MATRIX47

Technical Evaluation of Automated Counting Machine

MEGA-PACIFIC TOTAL
KEY REQUIREMENTS CONSORTIUM INFORMATION
QUESTIONS MANAGEMENT

YES NO YES NO

1. Does the machine have an √   √  

accuracy rating of at least
99.995 percent

At COLD environmental   √   √
condition

At NORMAL environmental   √ √  
conditions

At HARSH environmental        
conditions

2. Accurately records and √   √  

reports the date and time of
the start and end of counting
of ballots per precinct?

3. Prints election returns √   √  

without any loss of date
during generation of such
reports?

4. Uninterruptible back-up        
power system, that will √ √
engage immediately to allow
operation of at least 10
minutes after outage, power
surge or abnormal electrical
occurrences?

5. Machine reads two-sided √     √

ballots in one pass?
Note: This
particular
requirement
needs
further
verification

6. Machine can detect  √      √

previously counted ballots and
prevent previously counted
ballots from being counted
more than once?

7. Stores results of counted √     √

votes by precinct in external
(removable) storage device? Note: This
particular
requirement
needs
further
verification

8. Data stored in external √     √

media is encrypted?
Note: This
particular
requirement
needs
further
verification

9. Physical key or similar √   √  

device allows, limits, or
restricts operation of the
machine?

10. CPU speed is at least √     √

400mHz?
Note: This
particular
requirement
needs
 further
verification

11. Port to allow use of dot- √   √  

matrix printers?

12. Generates printouts of the        

election returns in a format
specified by the COMELEC?

Generates printouts √   √  

In format specified by   √   √
COMELEC

13. Prints election returns √   √  

without any loss of data
during generation of such
report?

14. Generates an audit trail of        

the counting machine, both
hard copy and soft copy?

Hard copy √   √  

Soft copy √     √

Note: This
particular
requirement
needs
further
verification

15. Does the City/Municipal √     √

Canvassing System
consolidate results from all Note: This
precincts within it using the particular
encrypted soft copy of the requirement
data generated by the needs
counting machine and stored further
on the removable data storage verification
device?

16. Does the City/Municipal   √   √

Canvassing System
consolidate results from all Note: This Note: This
precincts within it using the particular particular
encrypted soft copy of the requirement requirement
data generated by the needs needs
counting machine and further further
transmitted through an verification verification
electronic transmission media?

17. Does the system output a √     √

Zero City/Municipal Canvass
Report, which is printed on Note: This
election day prior to the particular
conduct of the actual canvass
operation, that shows that all requirement
totals for all the votes for all needs
the candidates and other further
information, are indeed zero verification
or null?

18. Does the system √     √

consolidate results from all
precincts in the Note: This
city/municipality using the particular
data storage device coming requirement
from the counting machine? needs
further
verification

19. Is the machine 100% √     √

accurate?
Note: This
particular
requirement
needs
further
verification

20. Is the Program able to   √   √

detect previously downloaded
precinct results and prevent Note: This
these from being inputted particular
again into the System? requirement
needs
further
verification

21. The System is able to print        

the specified reports and the
audit trail without any loss of
data during generation of the
above-mentioned reports?

Prints specified reports √     √

Audit Trail   √   √

22. Can the result of the √     √

city/municipal consolidation be
stored in a data storage Note: This
device? particular
requirement
needs
further
verification

23. Does the system √     √

consolidate results from all
precincts in the Note: This
provincial/district/ national particular
using the data storage device requirement
from different levels of needs
consolidation? further
 verification

24. Is the system 100% √     √

accurate?
Note: This
particular
requirement
needs
further
verification

25. Is the Program able to   √   √

detect previously downloaded
precinct results and prevent Note: This
these from being inputted particular
again into the System? requirement
needs
further
verification

26. The System is able to print        

the specified reports and the
audit trail without any loss of
data during generation of the
abovementioned reports?

Prints specified reports √     √

Audit Trail   √   √

Note: This
particular
requirement
needs
further
verification

27. Can the results of the √     √

provincial/district/national
consolidation be stored in a Note: This
data storage device? particular
requirement
needs
further
verification

According to respondents, it was only after the TWG and the DOST had conducted their
separate tests and submitted their respective reports that the BAC, on the basis of these
reports formulated its comments/recommendations on the bids of the consortium and
TIM.

The BAC, in its Report dated April 21, 2003, recommended that the Phase II project
involving the acquisition of automated counting machines be awarded to MPEI. It said:

"After incisive analysis of the technical reports of the DOST and the Technical
Working Group for Phase II – Automated Counting Machine, the BAC considers
adaptability to advances in modern technology to ensure an effective and efficient
method, as well as the security and integrity of the system.
"The results of the evaluation conducted by the TWG and that of the DOST (14
April 2003 report), would show the apparent advantage of Mega-Pacific over the
other competitor, TIM.

"The BAC further noted that both Mega-Pacific and TIM obtained some ‘failed
marks’ in the technical evaluation. In general, the ‘failed marks’ of Total
Information Management as enumerated above affect the counting machine itself
which are material in nature, constituting non-compliance to the RFP. On the other
hand, the ‘failed marks’ of Mega-Pacific are mere formalities on certain
documentary requirements which the BAC may waive as clearly indicated in the
Invitation to Bid.

"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the
counting machine itself as stated earlier. These are requirements of the RFP and
therefore the BAC cannot disregard the same.

"Mega-Pacific failed in 8 items however these are mostly on the software which
can be corrected by reprogramming the software and therefore can be readily
corrected.

"The BAC verbally inquired from DOST on the status of the retest of the counting
machines of the TIM and was informed that the report will be forthcoming after
the holy week. The BAC was informed that the retest is on a different parameters
they’re being two different machines being tested. One purposely to test if
previously read ballots will be read again and the other for the other features such
as two sided ballots.

"The said machine and the software therefore may not be considered the same
machine and program as submitted in the Technical proposal and therefore may
be considered an enhancement of the original proposal.

"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by

Executive Director Ronaldo T. Viloria of DOST is that the result of the test in the
two counting machines of TIM contains substantial errors that may lead to the
failure of these machines based on the specific items of the RFP that DOST has to
certify.

OPENING OF FINANCIAL BIDS

"The BAC on 15 April 2003, after notifying the concerned bidders opened the
financial bids in their presence and the results were as follows:

Mega-Pacific:

Option 1 – Outright purchase: Bid Price if Php1,248,949,088.00

Option 2 – Lease option:

70% Down payment of cost of hardware or Php642,755,757.07

Remainder payable over 50 months or a total of Php642,755,757.07

Discount rate of 15% p.a. or 1.2532% per month.

Total Number of Automated Counting Machine – 1,769 ACMs (Nationwide)

TIM:

Total Bid Price – Php1,297,860,560.00

 Total Number of Automated Counting Machine – 2,272 ACMs (Mindanao and NCR
only)

"Premises considered, it appears that the bid of Mega Pacific is the lowest
calculated responsive bid, and therefore, the Bids and Awards Committee (BAC)
recommends that the Phase II project re Automated Counting Machine be awarded
to Mega Pacific eSolutions, Inc."48

The BAC, however, also stated on page 4 of its Report: "Based on the 14 April 2003
report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total
Information Management Corporation) failed to meet some of the requirements. Below
is a comparative presentation of the requirements wherein Mega-Pacific or TIM or both
of them failed: x x x." What followed was a list of "key requirements," referring to
technical requirements, and an indication of which of the two bidders had failed to meet
them. 

Failure to Meet the Required Accuracy Rating

The first of the key requirements was that the counting machines were to have
an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both
Mega Pacific and TIM failed to meet this standard.

The key requirement of accuracy rating happens to be part and parcel of the Comelec’s
Request for Proposal (RFP). The RFP, on page 26, even states that the ballot counting
machines and ballot counting software "must have an accuracy rating of 99.9995% (not
merely 99.995%) or better as certified by a reliable independent testing agency."

When questioned on this matter during the Oral Argument, Commissioner Borra tried to
wash his hands by claiming that the required accuracy rating of 99.9995 percent had
been set by a private sector group in tandem with Comelec. He added that the
Commission had merely adopted the accuracy rating as part of the group’s
recommended bid requirements, which it had not bothered to amend even after being
advised by DOST that such standard was unachievable. This excuse, however, does not
in any way lessen Comelec’s responsibility to adhere to its own published bidding rules,
as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995
percent -- the fact remains that the machines of the so-called "consortium" failed to
even reach the lesser of the two. On this basis alone, it ought to have been disqualified
and its bid rejected outright.

At this point, the Court stresses that the essence of public bidding is violated by the
practice of requiring very high standards or unrealistic specifications that cannot be met
-- like the 99.9995 percent accuracy rating in this case -- only to water them down after
the bid has been award. Such scheme, which discourages the entry of prospective bona
fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair
competition. Certainly, if no bidder meets the mandatory requirements, standards or
specifications, then no award should be made and a failed bidding declared.

Failure of Software to Detect Previously Downloaded Data

Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as well as
TIM failed to meet another key requirement -- for the counting machine’s software
program to be able to detect previously downloaded precinct results and to
prevent these from being entered again into the counting machine. This same
deficiency on the part of both bidders reappears on page 7 of the BAC Report, as a
result of the recurrence of their failure to meet the said key requirement. 

That the ability to detect previously downloaded data at different canvassing or

consolidation levels is deemed of utmost importance can be seen from the fact that it is
repeated three times in the RFP. On page 30 thereof, we find the requirement that
the city/municipal canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being "inputted" again into the
system. Again, on page 32 of the RFP, we read that the provincial/district canvassing
system software must be able to detect previously downloaded city/municipal results
and prevent these from being "inputted" again into the system. And once more, on page
35 of the RFP, we find the requirement that the national canvassing system software
must be able to detect previously downloaded provincial/district results and prevent
these from being "inputted" again into the system.

Once again, though, Comelec chose to ignore this crucial deficiency, which should have
been a cause for the gravest concern. Come May 2004, unscrupulous persons may take
advantage of and exploit such deficiency by repeatedly downloading and feeding into the
computers results favorable to a particular candidate or candidates. We are thus
confronted with the grim prospect of election fraud on a massive scale by
means of just a few key strokes. The marvels and woes of the electronic age!

Inability to Print the Audit Trail

But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the
ACMs of both bidders were unable to print the audit trail without any loss of data. In
the case of MPC, the audit trail system was "not yet incorporated" into its ACMs.

This particular deficiency is significant, not only to this bidding but to the cause of free
and credible elections. The purpose of requiring audit trails is to enable Comelec to trace
and verify the identities of the ACM operators responsible for data entry and
downloading, as well as the times when the various data were downloaded into the
canvassing system, in order to forestall fraud and to identify the perpetrators.

Thus, the RFP on page 27 states that the ballot counting machines and ballot counting
software must print an audit trail of all machine operations for documentation and
verification purposes. Furthermore, the audit trail must be stored on the internal storage
device and be available on demand for future printing and verifying. On pages 30-31,
the RFP also requires that the city/municipal canvassing system software be able to
print an audit trail of the canvassing operations, including therein such data as the date
and time the canvassing program was started, the log-in of the authorized users (the
identity of the machine operators), the date and time the canvass data were downloaded
into the canvassing system, and so on and so forth. On page 33 of the RFP, we find the
same audit trail requirement with respect to the provincial/district canvassing
system software; and again on pages 35-36 thereof, the same audit trail requirement
with respect to the national canvassing system software.

That this requirement for printing audit trails is not to be lightly brushed aside by the
BAC or Comelec itself as a mere formality or technicality can be readily gleaned from the
provisions of Section 7 of RA 8436, which authorizes the Commission to use an
automated system for elections.

The said provision which respondents have quoted several times, provides that ACMs are
to possess certain features divided into two classes: those that the statute itself
considers mandatory and other features or capabilities that the law deems optional.
Among those considered mandatory are "provisions for audit trails"! Section 7 reads as
follows: "The System shall  contain the following features: (a) use of appropriate
ballots; (b) stand-alone machine which can count votes and an automated system which
can consolidate the results immediately; (c) with provisions for audit trails; (d)
minimum human intervention; and (e) adequate safeguard/security measures." (Italics
and emphases supplied.)

In brief, respondents cannot deny that the provision requiring audit trails is indeed
mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent
Comelec deny that it has relied on the BAC Report, which indicates that the machines or
the software was deficient in that respect. And yet, the Commission simply disregarded
this shortcoming and awarded the Contract to private respondent, thereby violating the
very law it was supposed to implement.

C.

Inadequacy of Post Facto Remedial Measures

Respondents argue that the deficiencies relating to the detection of previously

downloaded data, as well as provisions for audit trails, are mere shortcomings or minor
deficiencies in software or programming, which can be rectified. Perhaps Comelec simply
relied upon the BAC Report, which states on page 8 thereof that "Mega Pacific failed in 8
items[;] however these are mostly on the software which can be corrected by re-
programming x x x and therefore can be readily corrected."

The undersigned ponente’s questions, some of which were addressed to Commissioner

Borra during the Oral Argument, remain unanswered to this day. First of all, who made
the determination that the eight "fail" marks of Mega Pacific were on account of the
software -- was it DOST or TWG? How can we be sure these failures were not the results
of machine defects? How was it determined that the software could actually be re-
programmed and thereby rectified? Did a qualified technical expert read and analyze
the source code49 for the programs and conclude that these could be saved and
remedied? (Such determination cannot be done by any other means save by the
examination and analysis of the source code.) 

Who was this qualified technical expert? When did he carry out the study? Did he
prepare a written report on his findings? Or did the Comelec just make a wild guess? It
does not follow that all defects in software programs can be rectified, and the programs
saved. In the information technology sector, it is common knowledge that there are
many badly written programs, with significant programming errors written into them;
hence it does not make economic sense to try to correct the programs; instead,
programmers simply abandon them and just start from scratch. There’s no telling if any
of these programs is unrectifiable, unless a qualified programmer reads the source
code. 

And if indeed a qualified expert reviewed the source code, did he also determine how
much work would be needed to rectify the programs? And how much time and money
would be spent for that effort? Who would carry out the work? After the rectification
process, who would ascertain and how would it be ascertained that the programs have
indeed been properly rectified, and that they would work properly thereafter? And of
course, the most important question to ask: could the rectification be done in time for
the elections in 2004?

Clearly, none of the respondents bothered to think the matter through. Comelec simply
took the word of the BAC as gospel truth, without even bothering to inquire from DOST
whether it was true that the deficiencies noted could possibly be remedied by re-
programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.

What really adds to the Court’s dismay is the admission made by Commissioner Borra
during the Oral Argument that the software currently being used by Comelec was merely
the "demo" version, inasmuch as the final version that would actually be used in the
elections was still being developed and had not yet been finalized.

It is not clear when the final version of the software would be ready for testing and
deployment. It seems to the Court that Comelec is just keeping its fingers crossed and
hoping the final product would work. Is there a "Plan B" in case it does not? Who knows?
But all these software programs are part and parcel of the bidding and the Contract
awarded to the Consortium. Why is it that the machines are already being brought in
and paid for, when there is as yet no way of knowing if the final version of the software
would be able to run them properly, as well as canvass and consolidate the results in
the manner required?

The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still valid
to this day: "Garbage in, garbage out." No matter how powerful, advanced and
sophisticated the computers and the servers are, if the software being utilized is
defective or has been compromised, the results will be no better than garbage. And to
think that what is at stake here is the 2004 national elections -- the very basis of our
democratic life.

Correction of Defects?

To their Memorandum, public respondents proudly appended 19 Certifications issued by

DOST declaring that some 285 counting machines had been tested and had passed the
acceptance testing conducted by the Department on October 8-18, 2003. Among those
tested were some machines that had failed previous tests, but had undergone
adjustments and thus passed re-testing.

Unfortunately, the Certifications from DOST fail to divulge in what manner and by what
standards or criteria the condition, performance and/or readiness of the machines were
re-evaluated and re-appraised and thereafter given the passing mark. Apart from that
fact, the remedial efforts of respondents were, not surprisingly, apparently focused
again on the machines -- the hardware. Nothing 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 re-tested, if nothing was done about the
programming defects and deficiencies, the same danger of massive electoral fraud
remains. As anyone who has a modicum of knowledge of computers would say, "That’s
elementary!"

And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as
saying that the new automated poll system would be used nationwide in May
2004, even as the software for the system remained unfinished. It also reported that a
certain Titus Manuel of the Philippine Computer Society, which was helping Comelec test
the hardware and software, said that the software for the counting still had to be
submitted on December 15, while the software for the canvassing was due in early
January. 

Even as Comelec continues making payments for the ACMs, we keep asking ourselves:
who is going to ensure that the software would be tested and would work properly?

At any rate, the re-testing of the machines and/or the 100 percent testing of all
machines (testing of every single unit) would not serve to eradicate the grave abuse of
discretion already committed by Comelec when it awarded the Contract on April 15,
2003, despite the obvious and admitted flaws in the bidding process, the failure of the
"winning bidder" to qualify, and the inability of the ACMs and the intended software to
meet the bid requirements and rules.

Comelec’s Latest "Assurances" Are Unpersuasive

Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They
merely affirm and compound the serious violations of law and gravely abusive acts it has
committed. Let us examine them.

The Resolution issued by this Court on December 9, 2003 required respondents to

inform it as to the number of ACMs delivered and paid for, as well as the total payment
made to date for the purchase thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of ACMs tested, the number found
to be defective; and "whether the reprogrammed software has been tested and found to
have complied with the requirements under Republic Act No. 8436."50

In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec
informed the Court that 1,991 ACMs had already been delivered to the Commission as of
that date. It further certified that it had already paid the supplier the sum of
P849,167,697.41, which corresponded to 1,973 ACM units that had passed the
acceptance testing procedures conducted by the MIRDC-DOST51 and which had therefore
been accepted by the poll body.

In the same submission, for the very first time, Comelec also disclosed to the Court the
following:

"The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3) types
of software, which are intended for use in the following:

1. Evaluation of Technical Bids

2. Testing and Acceptance Procedures

3. Election Day Use."

Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed solely for the purpose of
enabling the evaluation of the bidder’s technical bid. Comelec explained thus: "In
addition to the presentation of the ACM hardware, the bidders were required to develop
a ‘base’ software program that will enable the ACM to function properly. Since the
software program utilized during the evaluation of bids is not the actual software
program to be employed on election day, there being two (2) other types of software
program that will still have to be developed and thoroughly tested prior to actual
election day use, defects in the ‘base’ software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be waived."

In short, Comelec claims that it evaluated the bids and made the decision to award the
Contract to the "winning" bidder partly on the basis of the operation of the ACMs running
a "base" software. That software was therefore nothing but a sample or "demo"
software, which would not be the actual one that would be used on election day.
Keeping in mind that the Contract involves the acquisition of not just the ACMs or the
hardware, but also the software that would run them, it is now even clearer that the
Contract was awarded without Comelec having seen, much less evaluated, the final
product -- the software that would finally be utilized come election day. (Not even the
"near-final" product, for that matter).

What then was the point of conducting the bidding, when the software that was the
subject of the Contract was still to be created and could conceivably undergo
innumerable changes before being considered as being in final form? And that is not all!

No Explanation for Lapses in the Second Type of Software

The second phase, allegedly involving the second type of software, is simply
denominated "Testing and Acceptance Procedures." As best as we can construe,
Comelec is claiming that this second type of software is also to be developed and
delivered by the supplier in connection with the "testing and acceptance" phase of the
acquisition process. The previous pleadings, though -- including the DOST reports
submitted to this Court -- have not heretofore mentioned any statement, allegation or
representation to the effect that a particular set of software was to be developed and/or
delivered by the supplier in connection with the testing and acceptance of delivered
ACMs. 

What the records do show is that the imported ACMs were subjected to the testing and
acceptance process conducted by the DOST. Since the initial batch delivered included a
high percentage of machines that had failed the tests, Comelec asked the DOST to
conduct a 100 percent testing; that is, to test every single one of the ACMs delivered.
Among the machines tested on October 8 to 18, 2003, were some units that had failed
previous tests but had subsequently been re-tested and had passed. To repeat,
however, until now, there has never been any mention of a second set or type of
software pertaining to the testing and acceptance process.

In any event, apart from making that misplaced and uncorroborated claim, Comelec in
the same submission also professes (in response to the concerns expressed by this
Court) that the reprogrammed software has been tested and found to have
complied with the requirements of RA 8436. It reasoned thus: "Since the software
program is an inherent element in the automated counting system, the certification
issued by the MIRDC-DOST that one thousand nine hundred seventy-three (1,973) units
passed the acceptance test procedures is an official recognition by the MIRDC-DOST that
the software component of the automated election system, which has been
reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in
the Ad Hoc Technical Evaluation Committee’s ACM Testing and Acceptance Manual, has
passed the MIRDC-DOST tests."

The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-
DOST letter dated December 15, 2003,52 which it relied upon, does not justify its grand
conclusion. For clarity’s sake, we quote in full the letter-certification, as follows:

"15 December 2003

"HON. RESURRECCION Z. BORRA

Commissioner-in-Charge

Phase II, Modernization Project

Commission on Elections

Intramuros, Manila

Attention: Atty. Jose M. Tolentino, Jr.

Project Director

"Dear Commissioner Borra:

"We are pleased to submit 11 DOST Test Certifications representing 11 lots and
covering 158 units of automated counting machines (ACMs) that we have tested
from 02-12 December 2003.

"To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)

1st batch - 30 units 4th batch - 438 units

2nd batch - 288 units 5th batch - 438 units

3rd batch - 414 units 6th batch - 383 units

 "It should be noted that a total of 18 units have failed the test. Out of these 18
units, only one (1) unit has failed the retest.

"Thank you and we hope you will find everything in order.

"Very truly yours,

"ROLANDO T. VILORIA, CESO III

Executive Director cum

Chairman, DOST-Technical Evaluation Committee"

Even a cursory glance at the foregoing letter shows that it is completely bereft of
anything that would remotely support Comelec’s contention that the "software
component of the automated election system x x x has been reprogrammed to comply
with" RA 8436, and "has passed the MIRDC-DOST tests." There is no mention at all of
any software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed
reprogramming and the process turned out to be successful, that agency would have
proudly trumpeted its singular achievement.

How Comelec came to believe that such reprogramming had been undertaken is unclear.
In any event, the Commission is not forthright and candid with the factual details. If
reprogramming has been done, who performed it and when? What exactly did the
process involve? How can we be assured that it was properly performed? Since the facts
attendant to the alleged reprogramming are still shrouded in mystery, the Court cannot
give any weight to Comelec’s bare allegations.

The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST
tests does not by itself serve as an endorsement of the soundness of the software
program, much less as a proof that it has been reprogrammed. In the first place,
nothing on record shows that the tests and re-tests conducted on the machines were
intended to address the serious deficiencies noted earlier. As a matter of fact, the
MIRDC-DOST letter does not even indicate what kinds of tests or re-tests were
conducted, their exact nature and scope, and the specific objectives thereof.53The
absence of relevant supporting documents, combined with the utter vagueness of the
letter, certainly fails to inspire belief or to justify the expansive confidence displayed by
Comelec. In any event, it goes without saying that remedial measures such as the
alleged reprogramming cannot in any way mitigate the grave abuse of discretion already
committed as early as April 15, 2003.

Rationale of Public Bidding Negated 

by the Third Type of Software

Respondent Comelec tries to assuage this Court’s anxiety in these words: "The
reprogrammed software that has already passed the requirements of Republic Act No.
8436 during the MIRDC-DOST testing and acceptance procedures will require further
customization since the following additional elements, among other things, will have to
be considered before the final software can be used on election day: 1. Final Certified
List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and Security
Features x x x 4. Encryption, digital certificates and digital signatures x x x. The certified
list of candidates for national elective positions will be finalized on or before 23 January
2004 while the final list of projects of precincts will be prepared also on the same date.
Once all the above elements are incorporated in the software program, the Test
Certification Group created by the Ad Hoc Technical Evaluation Committee will conduct
meticulous testing of the final software before the same can be used on election day. In
addition to the testing to be conducted by said Test Certification Group, the Comelec will
conduct mock elections in selected areas nationwide not only for purposes of public
information but also to further test the final election day program. Public respondent
Comelec, therefore, requests that it be given up to 16 February 2004 to comply with this
requirement."

The foregoing passage shows the imprudent approach adopted by Comelec in the
bidding and acquisition process. The Commission says that before the software can be
utilized on election day, it will require "customization" through addition of data -- like
the list of candidates, project of precincts, and so on. And inasmuch as such data will
become available only in January 2004 anyway, there is therefore no perceived need on
Comelec’s part to rush the supplier into producing the final (or near-final) version of the
software before that time. In any case, Comelec argues that the software needed for the
electoral exercise can be continuously developed, tested, adjusted and perfected,
practically all the way up to election day, at the same time that the Commission is
undertaking all the other distinct and diverse activities pertinent to the elections.

Given such a frame of mind, it is no wonder that Comelec paid little attention to the
counting and canvassing software during the entire bidding process, which took place in
February-March 2003. Granted that the software was defective, could not detect and
prevent the re-use of previously downloaded data or produce the audit trail -- aside
from its other shortcomings -- nevertheless, all those deficiencies could still be corrected
down the road. At any rate, the software used for bidding purposes would not be the
same one that will be used on election day, so why pay any attention to its defects? Or
to the Comelec’s own bidding rules for that matter? 

Clearly, such jumbled ratiocinations completely negate the rationale underlying the
bidding process mandated by law.

At the very outset, the Court has explained that Comelec flagrantly violated the public
policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even
though it was not qualified to do so; and (2) by eventually awarding the Contract to
MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the
Commission further desecrated the law on public bidding by permitting the winning
bidder to change and alter the subject of the Contract (the software), in effect allowing a
substantive amendment without public bidding.

This stance is contrary to settled jurisprudence requiring the strict application of

pertinent rules, regulations and guidelines for public bidding for the purpose of placing
each bidder, actual or potential, on the same footing. The essence of public bidding is,
after all, an opportunity for fair competition, and a fair basis for the precise comparison
of bids. In common parlance, public bidding aims to "level the playing field." That means
each bidder must bid under the same conditions; and be subject to the same guidelines,
requirements and limitations, so that the best offer or lowest bid may be determined, all
other things being equal.

Thus, it is contrary to the very concept of public bidding to permit a variance between
the conditions under which bids are invited and those under which proposals are
submitted and approved; or, as in this case, the conditions under which the bid is won
and those under which the awarded Contract will be complied with. The substantive
amendment of the contract bidded out, without any public bidding -- after the bidding
process had been concluded -- is violative of the public policy on public biddings, as well
as the spirit and intent of RA 8436. The whole point in going through the public bidding
exercise was completely lost. The very rationale of public bidding was totally subverted
by the Commission.

From another perspective, the Comelec approach also fails to make sense. Granted that,
before election day, the software would still have to be customized to each precinct,
municipality, city, district, and so on, there still was nothing at all to prevent Comelec
from requiring prospective suppliers/bidders to produce, at the very start of the bidding
process, the "next-to-final" versions of the software (the best software the suppliers
had) -- pre-tested and ready to be customized to the final list of candidates and project
of precincts, among others, and ready to be deployed thereafter. The satisfaction of
such requirement would probably have provided far better bases for evaluation and
selection, as between suppliers, than the so-called demo software.Respondents contend
that the bidding suppliers’ counting machines were previously used in at least one
political exercise with no less than 20 million voters. If so, it stands to reason that the
software used in that past electoral exercise would probably still be available and, in all
likelihood, could have been adopted for use in this instance. Paying for machines and
software of that category (already tried and proven in actual elections and ready to be
adopted for use) would definitely make more sense than paying the same hundreds of
millions of pesos for demo software and empty promises of usable programs in the
future.

But there is still another gut-level reason why the approach taken by Comelec is
reprehensible. It rides on the perilous assumption that nothing would go wrong; and
that, come election day, the Commission and the supplier would have developed,
adjusted and "re-programmed" the software to the point where the automated system
could function as envisioned. But what if such optimistic projection does not materialize?
What if, despite all their herculean efforts, the software now being hurriedly developed
and tested for the automated system performs dismally and inaccurately or, worse, is
hacked and/or manipulated?54 What then will we do with all the machines and defective
software already paid for in the amount of P849 million of our tax money? Even more
important, what will happen to our country in case of failure of the automation?

The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to
be able to submit a "certification relative to the additional elements of the software that
will be customized," because for us to do so would unnecessarily delay the resolution of
this case and would just give the poll body an unwarranted excuse to postpone the 2004
elections. On the other hand, because such certification will not cure the gravely abusive
actions complained of by petitioners, it will be utterly useless.

Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly.
Rather, the Court holds that Comelec should not have gambled on the unrealistic
optimism that the supplier’s software development efforts would turn out well. The
Commission should have adopted a much more prudent and judicious approach to
ensure the delivery of tried and tested software, and readied alternative courses of
action in case of failure. Considering that the nation’s future is at stake here, it should
have done no less.

Epilogue

Once again, the Court finds itself at the crossroads of our nation’s history. At stake in
this controversy is not just the business of a computer supplier, or a questionable
proclamation by Comelec of one or more public officials. Neither is it about whether this
country should switch from the manual to the automated system of counting and
canvassing votes. At its core is the ability and capacity of the Commission on Elections
to perform properly, legally and prudently its legal mandate to implement the transition
from manual to automated elections.

Unfortunately, Comelec has failed to measure up to this historic task. As stated at the
start of this Decision, Comelec has not merely gravely abused its discretion in awarding
the Contract for the automation of the counting and canvassing of the ballots. It has also
put at grave risk the holding of credible and peaceful elections by shoddily accepting
electronic hardware and software that admittedly failed to pass legally mandated
technical requirements. Inadequate as they are, the remedies it proffers post facto do
not cure the grave abuse of discretion it already committed (1) on April 15, 2003, when
it illegally made the award; and (2) "sometime" in May 2003 when it executed the
Contract for the purchase of defective machines and non-existent software from a non-
eligible bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable to place its
imprimatur on this void and illegal transaction that seriously endangers the breakdown
of our electoral system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional duty of
safeguarding public interest.

As a necessary consequence of such nullity and illegality, the purchase of the machines
and all appurtenances thereto including the still-to-be-produced (or in Comelec’s words,
to be "reprogrammed") software, as well as all the payments made therefor, have no
basis whatsoever in law. The public funds expended pursuant to the void Resolution and
Contract must therefore be recovered from the payees and/or from the persons who
made possible the illegal disbursements, without prejudice to possible criminal
prosecutions against them.

Furthermore, Comelec and its officials concerned must bear full responsibility for the
failed bidding and award, and held accountable for the electoral mess wrought by their
grave abuse of discretion in the performance of their functions. The State, of course, is
not bound by the mistakes and illegalities of its agents and servants.

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.

WHEREFORE, the Petition is GRANTED. The Court hereby

declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase
II of the AES to Mega Pacific Consortium (MPC). Also declared null and void is the
subject Contract executed between Comelec and Mega Pacific eSolutions
(MPEI).55 Comelec is further ORDERED to refrain from implementing any other contract
or agreement entered into with regard to this project. 

Let a copy of this Decision be furnished the Office of the Ombudsman which shall
determine the criminal liability, if any, of the public officials (and conspiring private
individuals, if any) involved in the subject Resolution and Contract. Let the Office of the
Solicitor General also 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 and Contract.

SO ORDERED.

Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.

Davide, C.J., Jr., Vitug, Ynares-Santiago, JJ., see separate opinion.
Puno, J., concur, and also joins the opinion of J. Ynares-Santiago.
Quisumbing, J., in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, Azcuna, JJ., joins the dissent of J. Tinga.
Tinga, J., pls. see dissenting opinion.
G.R. No. 207264               October 22, 2013

REGINA ONGSIAKO REYES, Petitioner, 

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

Election Law; Commission on Elections (COMELEC); In Special Actions and Special

Cases a decision or resolution of the Commission En Banc shall become final and
executory after five (5) days from its promulgation unless restrained by the Supreme
Court.―The COMELEC Rules indicate the manner by which the impediment to
proclamation may be removed. Rule 18, Section 13 (b) provides: “(b) In Special Actions
and Special Cases a decision or resolution of the Commission En Bancshall become final
and executory after five (5) days from its promulgation unless restrained by the
Supreme Court.” Within that five (5) days, petitioner had the opportunity to go to the
Supreme Court for a restraining order that will remove the immediate effect of the En
Banc cancellation of her certificate of candidacy. Within the five (5) days the Supreme
Court may remove the barrier to, and thus allow, the proclamation of petitioner. That
did not happen. Petitioner did not move to have it happen. It is error to argue that the
five days should pass before the petitioner is barred from being proclaimed. Petitioner
lost in the COMELEC as respondent. Her certificate of candidacy has been ordered
cancelled. She could not be proclaimed because there was a final finding against her by
the COMELEC. She needed a restraining order from the Supreme Court to avoid the final
finding. After the five days when the decision adverse to her became executory, the
need for Supreme Court intervention became even more imperative. She would have to
base her recourse on the position that the COMELEC committed grave abuse of
discretion in cancelling her certificate of candidacy and that a restraining order, which
would allow her proclamation, will have to be based on irreparable injury and
demonstrated possibility of grave abuse of discretion on the part of the COMELEC. In
this case, before and after the 18 May 2013 proclamation, there was not even an
attempt at the legal remedy, clearly available to her, to permit her proclamation. What
petitioner did was to “take the law into her hands” and secure a proclamation in
complete disregard of the COMELEC En Banc decision that was final on 14 May 2013 and
final and executory five days thereafter.
Same; Electoral Tribunals; House of Representatives Electoral Tribunal (HRET); That
the House of Representatives Electoral Tribunal (HRET) is the sole judge of all contests
relating to the election, returns and qualifications of the Members of the House of
Representatives is a written constitutional provision.―Petitioner is in error when she
posits that at present it is the HRET which has exclusive jurisdiction over her
qualifications as a Member of the House of Representatives. That the HRET is the sole
judge of all contests relating to the election, returns and qualifications of the Members of
the House of Representatives is a written constitutional provision. It is, however
unavailable to petitioner because she is NOT a Member of the House at present. The
COMELEC never ordered her proclamation as the rightful winner in the election for such
membership. Indeed, the action for cancellation of petitioner’s certificate of candidacy,
the decision in which is the indispensable determinant of the right of petitioner to
proclamation, was correctly lodged in the COMELEC, was completely and fully litigated in
the COMELEC and was finally decided by the COMELEC. On and after 14 May 2013, there
was nothing left for the COMELEC to do to decide the case. The decision sealed the
proceedings in the COMELEC regarding petitioner’s ineligibility as a candidate for
Representative of Marinduque. The decision erected the bar to petitioner’s proclamation.
The bar remained when no restraining order was obtained by petitioner from the
Supreme Court within five days from 14 May 2013.
Same; Certificates of Candidacy; Cancellation of Certificate of Candidacy; The
special action before the COMELEC which was a Petition to Cancel Certificate of
Candidacy was a summary proceeding or one “heard summarily.”―The special action
before the COMELEC which was a Petition to Cancel Certificate of Candidacy was a
SUMMARY PROCEEDING or one “heard summarily.” The nature of the proceedings is
best indicated by the COMELEC Rule on Special Actions, Rule 23, Section 4 of which
states that the Commission may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence. COMELEC Rule 17 further
provides in Section 3 that when the proceedings are authorized to be summary, in lieu
of oral testimonies, the parties may, after due notice, be required to submit their
position paper together with affidavits, counter-affidavits and other documentary
evidence; x x x and that “[t]his provision shall likewise apply to cases where the hearing
and reception of evidence are delegated by the Commission or the Division to any of its
officials x x x.”
Remedial Law; Special Civil Actions; Certiorari; Words and Phrases; The special and
civil action of Certiorari is defined in the Rules of Court thus: When any tribunal, board
or officer exercising judicial or quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.―The special and civil action of
Certiorari is defined in the Rules of Court thus: When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require. The accepted definition of grave abuse of
discretion is: a capricious and whimsical exercise of judgment so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined
by law, as where the power is exercised in an arbitrary and despotic manner because of
passion or hostility.
Election Law; Certificates of Candidacy; Commission on Elections (COMELEC); The
COMELEC covers the matter of petitioner’s certificate of candidacy, and its due course or
its cancellation, which are the pivotal conclusions that determines who can be legally
proclaimed.―It may need pointing out that there is no conflict between the COMELEC
and the HRET insofar as the petitioner’s being a Representative of Marinduque is
concerned. The COMELEC covers the matter of petitioner’s certificate of candidacy, and
its due course or its cancellation, which are the pivotal conclusions that determines who
can be legally proclaimed. The matter can go to the Supreme Court but not as a
continuation of the proceedings in the COMELEC, which has in fact ended, but on an
original action before the Court grounded on more than mere error of judgment but on
error of jurisdiction for grave abuse of discretion. At and after the COMELEC En
Banc decision, there is no longer any certificate cancellation matter than can go to the
HRET.
Same; House of Representatives Electoral Tribunal (HRET); The House of
Representatives Electoral Tribunal (HRET) jurisdiction over the qualification of the
Member of the House of Representatives is original and exclusive, and as such, proceeds
de novo unhampered by the proceedings in the COMELEC which, as just stated has been
terminated. The HRET proceedings is a regular, not summary, proceeding.―The HRET’s
constitutional authority opens, over the qualification of its MEMBER, who becomes so
only upon a duly and legally based proclamation, the first and unavoidable step towards
such membership. The HRET jurisdiction over the qualification of the Member of the
House of Representatives is original and exclusive, and as such, proceeds de novo
unhampered by the proceedings in the COMELEC which, as just stated has been
terminated. The HRET proceedings is a regular, not summary, proceeding. It will
determine who should be the Member of the House. It must be made clear though, at
the risk of repetitiveness, that no hiatus occurs in the representation of Marinduque in
the House because there is such a representative who shall sit as the HRET proceedings
are had till termination. Such representative is the duly proclaimed winner resulting from
the terminated case of cancellation of certificate of candidacy of petitioner. The
petitioner is not, cannot, be that representative. And this, all in all, is the crux of the
dispute between the parties: who shall sit in the House in representation of Marinduque,
while there is yet no HRET decision on the qualifications of the Member.
Remedial Law; Jurisdiction; Jurisdiction, once acquired, is not lost upon the instance
of the parties, but continues until the case is terminated.―The motion to withdraw
petition filed AFTER the Court has acted thereon, is noted. It may well be in order to
remind petitioner that jurisdiction, once acquired, is not lost upon the instance of the
parties, but continues until the case is terminated. When petitioner filed her Petition
for Certiorari, jurisdiction vested in the Court and, in fact, the Court exercised such
jurisdiction when it acted on the petition. Such jurisdiction cannot be lost by the
unilateral withdrawal of the petition by petitioner. More importantly, the Resolution
dated 25 June 2013, being a valid court issuance, undoubtedly has legal consequences.
Petitioner cannot, by the mere expediency of withdrawing the petition, negative and
nullify the Court’s Resolution and its legal effects. At this point, we counsel petitioner
against trifling with court processes. Having sought the jurisdiction of the Supreme
Court, petitioner cannot withdraw her petition to erase the ruling adverse to her
interests. Obviously, she cannot, as she designed below, subject to her predilections the
supremacy of the law.

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which
stated that: IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no
grave abuse of discretion on the part of the Commission on Elections. The 14 May 2013
Resolution of the COMELEC En Banc affirming the 27 March 2013 Resolution of the
COMELEC First Division is upheld."

In her Motion for Reconsideration, petitioner summarizes her submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a
determination as regards her qualifications, she is merely asking the Honorable Court to
affirm the jurisdiction of the HRET to solely and exclusively pass upon such qualifications
and to set aside the COMELEC Resolutions for having denied Petitioner her right to due
process and for unconstitutionally adding a qualification not otherwise required by the
constitution."1(as originally underscored)

The first part of the summary refers to the issue raised in the petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is
duly proclaimed winner and who has already taken her oath of office for the position of
Member of the House of Representatives for the lone congressional district of
Marinduque."2

Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus:

petitioner is a duly proclaimed winner and having taken her oath of office as member of
the House of Representatives, all questions regarding her qualifications are outside the
jurisdiction of the COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's

submission. The crucial question is whether or not petitioner could be proclaimed on 18
May 2013. Differently stated, was there basis for the proclamation of petitioner on 18
May 2013?

Dates and events indicate that there was no basis for the proclamation of petitioner on
18 May 2013. Without the proclamation, the petitioner's oath of office is likewise
baseless, and without a precedent oath of office, there can be no valid and effective
assumption of office.

We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this controversy – that before the
proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally
disposed of the issue of petitioner's lack of Filipino citizenship and residency via its
Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC, no
longer any pending case on petitioner's qualifications to run for the position of Member
of the House of Representatives. x x x As the point has obviously been missed by the
petitioner who continues to argue on the basis of her due proclamation, the instant
motion gives us the opportunity to highlight the undeniable fact we here repeat that the
proclamation which petitioner secured on 18 May 2013 was WITHOUT ANY BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013, the
COMELEC En Banc has already denied for lack o merit the petitioner's motion to
reconsider the decision o the COMELEC First Division that CANCELLED petitioner's
certificate of candidacy.

2. On 18 May 2013, there was already a standing and unquestioned cancellation of

petitioner's certificate o candidacy which cancellation is a definite bar to her
proclamation. On 18 May 2003, that bar has not been removed, there was not
even any attempt to remove it.

3. The COMELEC Rules indicate the manner by which the impediment to

proclamation may be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the

Commission En Bane shall become final and executory after five (5) days from its
promulgation unless restrained by the Supreme Court."

Within that five (5 days, petitioner had the opportunity to go to the Supreme Court
for a restraining order that will remove the immediate effect of the En Banc
cancellation of her certificate of candidacy. Within the five (5) days the Supreme
Court may remove the barrier to, and thus allow, the proclamation of petitioner.
That did not happen. Petitioner did not move to have it happen.

It is error to argue that the five days should pass before the petitioner is barred
from being proclaimed. Petitioner lost in the COMELEC as of respondent. Her
certificate of candidacy has been ordered cancelled. She could not be proclaimed
because there was a final finding against her by the COMELEC.3 She needed a
restraining order from the Supreme Court to avoid the final finding. After the five
days when the decision adverse to her became executory, the need for Supreme
Court intervention became even more imperative. She would have to base her
recourse on the position that the COMELEC committed grave abuse of discretion in
cancelling her certificate of candidacy and that a restraining order, which would
allow her proclamation, will have to be based on irreparable injury and
demonstrated possibility of grave abuse of discretion on the part of the COMELEC.
In this case, before and after the 18 May 2013 proclamation, there was not even
an attempt at the legal remedy, clearly available to her, to permit her
proclamation. What petitioner did was to "take the law into her hands" and secure
a proclamation in complete disregard of the COMELEC En Bane decision that was
final on 14 May 2013 and final and executory five days thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of
Rule 18 in the provision that the COMELEC En Bane or decision "SHALL become
FINAL AND EXECUTORY after five days from its promulgation unless restrained by
the Supreme Court." On its own the COMELEC En Bane decision, unrestrained,
moves from promulgation into becoming final and executory. This is so because in
Section 5 of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the

Commission or a division shall be made 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.

5. Apart from the presumed notice of the COMELEC En Bane decision on the very
date of its promulgation on 14 May 2013, petitioner admitted in her petition before
us that she in fact received a copy of the decision on 16 May 20 13.4 On that date,
she had absolutely no reason why she would disregard the available legal way to
remove the restraint on her proclamation, and, more than that, to in fact secure a
proclamation two days thereafter. The utter disregard of a final COMELEC En Bane
decision and of the Rule stating that her proclamation at that point MUST be on
permission by the Supreme Court is even indicative of bad faith on the part of the
petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted
proclamation as the very reason to support her argument that she could no longer
be reached by the jurisdiction of the COMELEC; and that it is the HRET that has
exclusive jurisdiction over the issue of her qualifications for office.

7. The suggestions of bad faith aside, petitioner is in error in the conclusion at

which she directs, as well as in her objective quite obvious from such conclusion.
It is with her procured proclamation that petitioner nullifies the COMELEC's
decision, by Division and then En Banc and pre-empts any Supreme Court action
on the COMELEC decision. In other words, petitioner repudiates by her
proclamation all administrative and judicial actions thereon, past and present. And
by her proclamation, she claims as acquired the congressional seat that she
sought to be a candidate for. As already shown, the reasons that lead to the
impermissibility of the objective are clear. She cannot sit as Member of the House
of Representatives by virtue of a baseless proclamation knowingly taken, with
knowledge of the existing legal impediment.

8. Petitioner, therefore, is in error when she posits that at present it is the HRET
which has exclusive jurisdiction over her qualifications as a Member of the House
of Representatives. That the HRET is the sole judge of all contests relating to the
election, returns and qualifications of the Members of the House of
Representatives is a written constitutional provision. It is, however unavailable to
petitioner because she is NOT a Member of the House at present. The COMELEC
never ordered her proclamation as the rightful winner in the election for such
membership.5 Indeed, the action for cancellation of petitioner's certificate of
candidacy, the decision in which is the indispensable determinant of the right of
petitioner to proclamation, was correctly lodged in the COMELEC, was completely
and fully litigated in the COMELEC and was finally decided by the COMELEC. On
and after 14 May 2013, there was nothing left for the COMELEC to do to decide the
case. The decision sealed the proceedings in the COMELEC regarding petitioner's
ineligibility as a candidate for Representative of Marinduque. The decision erected
the bar to petitioner's proclamation. The bar remained when no restraining order
was obtained by petitioner from the Supreme Court within five days from 14 May
2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013 questioning
the COMELEC First Division ruling and the 14 May 2013 COMELEC En Bane
decision, her baseless proclamation on 18 May 2013 did not by that fact of
promulgation alone become valid and legal. A decision favorable to her by the
Supreme Court regarding the decision of the COMELEC En Bane on her certificate
of candidacy was indispensably needed, not to legalize her proclamation on 18
May 2013 but to authorize a proclamation with the Supreme Court decision as
basis.
 10. The recourse taken on 25 June 2013 in the form of an original and special civil
action for a writ of Certiorari through Rule 64 of the Rules of Court is
circumscribed by set rules and principles.

a) The special action before the COMELEC which was a Petition to Cancel
Certificate of Candidacy was a SUMMARY PROCEEDING or one heard
summarily. The nature of the proceedings is best indicated by the COMELEC
Rule on Special Actions, Rule 23, Section 4 of which states that the
Commission may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence. COMELEC Rule 17
further provides in Section 3 that when the proceedings are authorized to be
summary, in lieu of oral testimonies, the parties may, after due notice, be
required to submit their position paper together with affidavits, counter-
affidavits and other documentary evidence; x x x and that this provision
shall likewise apply to cases where the hearing and reception of evidence are
delegated by the Commission or the Division to any of its officials x x x.

b) The special and civil action of Certiorari is defined in the Rules of Court
thus:

When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.

The accepted definition of grave abuse of discretion is: a capricious and whimsical
exercise of judgment so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in
an arbitrary and despotic manner because of passion or hostility.6

It is the category of the special action below providing the procedural leeway in the
exercise of the COMELEC summary jurisdiction over the case, in conjunction with the
limits of the Supreme Court's authority over the FINAL COMELEC ruling that is brought
before it, that defines the way petitioner's submission before the Court should be
adjudicated. Thus further explained, the disposition of 25 June 2013 is here repeated for
affirmation:

Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been testified on
and offered and admitted in evidence. She assails the admission of the blog article of Eli
Obligacion as hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her right to due process
of law because she was not given the opportunity to question and present controverting
evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical
rules of procedure in the presentation of evidence. Under Section 2 of Rule I the
COMELEC Rules of Procedure shall be liberally construed in order x x x to achieve just,
expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission. In view of the fact that the proceedings in a
petition to deny due course or to cancel certificate of candidacy are summary in nature,
then the newly discovered evidence was properly admitted by respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as petitioner was
given every opportunity to argue her case before the COMELEC. From 10 October 2012
when Tan's petition was filed up to 27 March 2013 when the First Division rendered its
resolution, petitioner had a period of five (5) months to adduce evidence. Unfortunately,
she did not avail herself of the opportunity given her.

Also, in administrative proceedings, procedural due process only requires that the party
be given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC:

The petitioners should be reminded that due process does not necessarily mean or
require a hearing, but simply an opportunity or right to be heard. One may be heard,
not solely by verbal presentation but also, and perhaps many times more creditably and
predictable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a party
was given the chance to be he rd on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner s ineligible to run for office on the ground of citizenship,
the COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public
office the law requires that she must have accomplished the following acts: (1) take the
oath of allegiance to the Republic of the Philippines before the Consul-General of the
Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of her
American citizenship before any public officer authorized to administer an oath.

In the case at bar, there s no showing that respondent complied with the aforesaid
requirements. Early on in the proceeding, respondent hammered on petitioner's lack of
proof regarding her American citizenship, contending that it is petitioner's burden to
present a case. She, however, specifically denied that she has become either a
permanent resident or naturalized citizen of the USA.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated

February 7, 2013, however, establishing the fact that respondent is a holder of an
American passport which she continues to use until June 30 2012 petitioner was able to
substantiate his allegations. The burden now shifts to respondent to present substantial
evidence to prove otherwise. This, the respondent utterly failed to do, leading to the
conclusion inevitable that respondent falsely misrepresented in her COC that she is a
natural-born Filipino citizen. Unless and until she can establish that she had availed of
the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an
American citizen and is, therefore, ineligible to run for and hold any elective public office
in the Philippines." (Emphasis in the original.)

Let us look into the events that led to this petition: In moving for the cancellation of
petitioner's COC, respondent submitted records of the Bureau of Immigration showing
that petitioner is a holder of a US passport, and that her status is that of a balikbayan.
At this point, the burden of proof shifted to petitioner, imposing upon her the duty to
prove that she is a natural-born Filipino citizen and has not lost the same, or that she
has re-acquired such status in accordance with the provisions of R.A. No. 9225. Aside
from the bare allegation that she is a natural-born citizen, however, petitioner submitted
no proof to support such contention. Neither did she submit any proof as to the
inapplicability of R.A. No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner
admitted that she is a holder of a US passport, but she averred that she is only a dual
Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her.
Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship
dated 24 September 2012. Petitioner explains that she attached said Affidavit if only to
show her desire and zeal to serve the people and to comply with rules, even as a
superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner
executed said Affidavit if only to comply with the rules, then it is an admission that R.A.
No. 9225 applies to her. Petitioner cannot claim that she executed it to address the
observations by the COMELEC as the assailed Resolutions were promulgated only in
2013, while the Affidavit was executed in September 2012.1âwphi1

Moreover, in the present petition, petitioner added a footnote to her oath of office as
Provincial Administrator, to this effect: This does not mean that Petitioner did not, prior
to her taking her oath of office as Provincial Administrator, take her oath of allegiance
for purposes of re-acquisition of natural-born Filipino status, which she reserves to
present in the proper proceeding. The reference to the taking of oath of office is in order
to make reference to what is already part of the records and evidence in the present
case and to avoid injecting into the records evidence on matters of fact that was not
previously passed upon by Respondent COMELEC. This statement raises a lot of
questions -Did petitioner execute an oath of allegiance for re-acquisition of natural-born
Filipino status? If she did, why did she not present it at the earliest opportunity before
the COMELEC? And is this an admission that she has indeed lost her natural-born Filipino
status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225,
petitioner contends that, since she took her oath of allegiance in connection with her
appointment as Provincial Administrator of Marinduque, she is deemed to have
reacquired her status as a natural-born Filipino citizen.

This contention is misplaced. For one, this issue is being presented for the first time
before this Court, as it was never raised before the COMELEC. For another, said oath of
allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain
requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01,
otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and
Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91,
Series of 2004 issued by the Bureau of Immigration. Thus, petitioner s oath of office as
Provincial Administrator cannot be considered as the oath of allegiance in compliance
with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner s
citizenship. Petitioner, however, failed to clear such doubt.7

11. It may need pointing out that there is no conflict between the COMELEC and
the HRET insofar as the petitioner s being a Representative of Marinduque is
concerned. The COMELEC covers the matter of petitioner s certificate of candidacy,
and its due course or its cancellation, which are the pivotal conclusions that
determines who can be legally proclaimed. The matter can go to the Supreme
Court but not as a continuation of the proceedings in the COMELEC, which has in
fact ended, but on an original action before the Court grounded on more than
mere error of judgment but on error of jurisdiction for grave abuse of discretion.
At and after the COMELEC En Bane decision, there is no longer any certificate
cancellation matter than can go to the HRET. In that sense, the HRET s
constitutional authority opens, over the qualification of its MEMBER, who becomes
so only upon a duly and legally based proclamation, the first and unavoidable step
towards such membership. The HRET jurisdiction over the qualification of the
Member of the House of Representatives is original and exclusive, and as such,
proceeds de novo unhampered by the proceedings in the COMELEC which, as just
stated has been terminated. The HRET proceedings is a regular, not summary,
proceeding. It will determine who should be the Member of the House. It must be
made clear though, at the risk of repetitiveness, that no hiatus occurs in the
representation of Marinduque in the House because there is such a representative
who shall sit as the HRET proceedings are had till termination. Such representative
 is the duly proclaimed winner resulting from the terminated case of cancellation of
certificate of candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the parties:
who shall sit in the House in representation of Marinduque, while there is yet no
HRET decision on the qualifications of the Member.

12. As finale, and as explained in the discussion just done, no unwarranted haste
can be attributed, as the dissent does so, to the resolution of this petition
promulgated on 25 June 2013. It was not done to prevent the exercise by the
HRET of its constitutional duty. Quite the contrary, the speedy resolution of the
petition was done to pave the way for the unimpeded performance by the HRET of
its constitutional role. The petitioner can very well invoke the authority of the
HRET, but not as a sitting member of the House of Representatives.8

The inhibition of this ponente was moved for. The reason for the denial of the motion
was contained in a letter to the members of the Court on the understanding that the
matter was internal to the Court. The ponente now seeks the Courts approval to have
the explanation published as it is now appended to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It
may well be in order to remind petitioner that jurisdiction, once acquired, is not lost
upon the instance of the parties, but continues until the case is terminated.9 When
petitioner filed her Petition for Certiorari jurisdiction vested in the Court and, in fact, the
Court exercised such jurisdiction when it acted on the petition. Such jurisdiction cannot
be lost by the unilateral withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance,
undoubtedly has legal consequences. Petitioner cannot, by the mere expediency of
withdrawing the petition, negative and nullify the Court's Resolution and its legal effects.
At this point, we counsel petitioner against trifling with court processes. Having sought
the jurisdiction of the Supreme Court, petitioner cannot withdraw her petition to erase
the ruling adverse to her interests. Obviously, she cannot, as she designed below,
subject to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is
affirmed. Entry of Judgment is ordered.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice
EN BANC

G.R. No. 222731, March 08, 2016

BAGUMBAYAN-VNP MOVEMENT, INC., AND RICHARD J. GORDON, AS CHAIRMAN

OF BAGUMBAYAN-VNP MOVEMENT, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.

RESOLUTION

Election Law; Right of Suffrage; The right of voters to verify whether vote-counting
machines properly recorded their vote is not only a statutory right; it is one that enables
their individual participation in governance as sovereign.—It is not often that this court
requires the filing of a comment within a non-extendible period. This is resorted to when
the issues raised by a party is fundamental and the ambient circumstances indicate
extreme urgency. The right of voters to verify whether vote-counting machines properly
recorded their vote is not only a statutory right; it is one that enables their individual
participation in governance as sovereign. Among all government bodies, the Commission
on Elections is the entity that should appreciate how important it is to respond to cases
filed by the public to enable these rights. It perplexes this court that the Commission on
Elections failed to immediately transmit relevant documents to the Office of the Solicitor
General to allow them to respond within the time granted.
Remedial Law; Special Civil Actions; Mandamus; Through a writ of mandamus, the
courts “compel the performance of a clear legal duty or a ministerial duty imposed by
law upon the defendant or respondent” by operation of his or her office, trust, or
station.—Mandamus is the relief sought “[w]hen any tribunal corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station,” and “there is no other plain,
speedy and adequate remedy in the ordinary course of law.” Through a writ
of mandamus, the courts “compel the performance of a clear legal duty or a ministerial
duty imposed by law upon the defendant or respondent” by operation of his or her
office, trust, or station. The petitioner must show the legal basis for the duty, and that
the defendant or respondent failed to perform the duty.
Election Law; Automated Election System; Voter-Verified Paper Audit Trail; One (1)
of the laws that the Commission on Elections (COMELEC) must implement is Republic
Act (RA) No. 8436, as amended by RA No. 9369, which requires the automated election
system to have the capability of providing a voter-verified paper audit trail (vvpat).—
Article XI(C), Section 2 of the 1987 Constitution empowered the Commission of Elections
to “[e]nforce and administer all laws and regulations relative to the conduct of an
election.” One of the laws that the Commission on Elections must implement is Republic
Act No. 8436, as amended by Republic Act No. 9369, which requires the automated
election system to have the capability of providing a voter-verified paper audit trail.
Based on the technical specifications during the bidding, the current vote-counting
machines should meet the minimum system capability of generating a VVPAT. However,
the Commission on Elections’ act of rendering inoperative this feature runs contrary to
why the law required this feature in the first place. Under Republic Act No. 8436, as
amended, it is considered a policy of the state that the votes reflect the genuine will of
the People.
Same; Same; A mechanism that allows the voter to verify his or her choice of
candidates will ensure a free, orderly, honest, peaceful, credible, and informed election.
—By setting the minimum system capabilities of our automated election system, the law
intends to achieve the purposes set out in this declaration. A mechanism that allows the
voter to verify his or her choice of candidates will ensure a free, orderly, honest,
peaceful, credible, and informed election. The voter is not left to wonder if the machine
correctly appreciated his or her ballot. The voter must know that his or her sovereign
will, with respect to the national and local leadership, was properly recorded by the
vote-counting machines.
Same; Same; Voter-Verified Paper Audit Trail; A “voter-verified paper audit trail
(VVPAT)” requires the following: (a) individual voters can verify whether the machines
have been able to count their votes; and (b) that the verification at minimum should be
paper based.—The minimum functional capabilities enumerated under Section 6 of
Republic Act No. 8436, as amended, are mandatory. These functions constitute the most
basic safeguards to ensure the transparency, credibility, fairness and accuracy of the
upcoming elections. The law is clear. A “voter-verified paper audit trail” requires the
following: (a) individual voters can verify whether the machines have been able to count
their votes; and (b) that the verification at minimum should be paper based. There
appears to be no room for further interpretation of a “voter-verified paper audit trail.”
The paper audit trail cannot be considered the physical ballot, because there may be
instances where the machine may translate the ballot differently, or the voter
inadvertently spoils his or her ballot.
Same; Same; Same; There is no legal prohibition for the Commission on Elections
(COMELEC) to require that after the voter reads and verifies the receipt, he or she is to
leave it in a separate box, not take it out of the precinct.—We see no reason why voters
should be denied the opportunity to read the voter’s receipt after casting his or her
ballot. There is no legal prohibition for the Commission on Elections to require that after
the voter reads and verifies the receipt, he or she is to leave it in a separate box, not
take it out of the precinct. Definitely, the availability of all the voters’ receipts will make
random manual audits more accurate. The credibility of the results of any election
depends, to a large extent, on the confidence of each voter that his or her individual
choices have actually been counted. It is in that local precinct after the voter casts his or
her ballot that this confidence starts. It is there where it will be possible for the voter to
believe that his or her participation as sovereign truly counts.

LEONEN, J.:

A petition for mandamus may be granted and a writ issued when an agency "unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office."1

Petitioners Bagumbayan Volunteers for a New Philippines Movement, Inc. (Bagumbayan-

VNP, Inc.) and Former Senator Richard J. Gordon (Gordon) filed this Petition2 for
mandamus before this court to compel respondent Commission on Elections to
implement the Voter Verified Paper Audit Trail security feature.

Bagumbayan-VNP, Inc. is a non-stock and non-profit corporation.3 It operates through

Bagumbayan Volunteers for a New Philippines,4 a national political party duly registered
with the Commission on Elections.5

Former Senator Gordon is a registered voter and taxpayer.6 He is an official candidate

for the Senate of the Philippines7 and is the Chairperson of Bagumbayan-VNP, Inc.
Gordon authored Republic Act No. 9369, the law that amended Republic Act No. 8436,
otherwise known as the Automated Election System Law.8

The Commission on Elections is a government entity9 "vested by law to enforce and

administer all laws relative to the conduct of elections in the country."10

On December 22, 1997, Republic Act No. 843611 authorized the Commission on
Elections to use an automated election system for electoral exercises.12 After almost a
decade, Republic Act No. 936913 amended Republic Act No. 8436. Republic Act No.
9369 introduced significant changes to Republic Act No. 8436, Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code, and other election-related statutes.14

Automation is hailed as a key "towards clean and credible elections," reducing the long
wait and discouraging cheating.15 In 2010 and 2013, the Commission on Elections
enforced a nationwide automated election system using the Precinct Count Optical Scan
(PCOS) machines. For the 2016 National and Local Elections, the Commission on
Elections has opted to use the Vote-Counting Machine.16 The vote-counting machine is
a "paper-based automated election system,"17 which is reported to be "seven times
faster and more powerful than the PCOS because of its updated processor."18 Likewise,
it is reported to have more memory and security features,19 and is "capable of
producing the Voter Verification Paper Audit Trail (VVPAT)."20 This VVPAT functionality is
in the form of a printed receipt and a touch screen reflecting the votes in the vote-
counting machine.21

Petitioners allege that under Republic Act No. 8436, as amended by Republic Act No.
9369, there are several safeguards or Minimum System Capabilities to ensure the
sanctity of the ballot. Among these is the implementation of the VVPAT security feature,
as found in Section 6(e), (f), and (n).

The full text of Section 6 is as follows:

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SEC. 6. Minimum System Capabilities. - The automated election system must at least
have the following functional capabilities:

(a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in the tabulation,

consolidation/canvassing, electronic transmission, and storage of results;

(c) Error recovery in case of non-catastrophic failure of device;

(d) System integrity which ensures physical stability and functioning of the vote
recording and counting process;

(e) Provision for voter verified paper audit trail;

(f) System auditability which provides supporting documentation for verifying the
correctness of reported election results;

(g) An election management system for preparing ballots and programs for use in the
casting and counting of votes and to consolidate, report and display election result in the
shortest time possible;

(h) Accessibility to illiterates and disable voters;

(i) Vote tabulating program for election, referendum or plebiscite;

(j) Accurate ballot counters;

(k) Data retention provision;

(l) Provide for the safekeeping, storing and archiving of physical or paper resource used
in the election process;

(m) Utilize or generate official ballots as herein defined;

(n) Provide the voter a system of verification to find out whether or not the machine has
registered his choice; and

(o) Configure access control for sensitive system data and function. (Emphasis
supplied).
Petitioners claim that VVPAT "consists of physical paper records of voter ballots as voters
have cast them on an electronic voting system."22 Through it, the voter can verify if the
choices on the paper record match the choices that he or she actually made in the
ballot.23 The voter can confirm whether the machine had actually read the ballot
correctly. Petitioners seek to compel the Commission on Elections to have the vote-
counting machine issue receipts once a person has voted.

According to petitioners, the VVPAT "will ensure transparency and reduce any attempt to
alter the results of the elections."24 There will be "an electronic tally of the votes cast"
or the vote stored in the vote-counting machine, as well as "a paper record of the
individual votes" cast or the VVPAT receipt.25 Should there be any doubt, "the
electronically generated results . . . can then be audited and verified through a
comparison . . . with these paper records."26

In the Terms of Reference for the 2016 National and Local Elections Automation Project,
the Commission on Elections lists the Minimum Technical Specifications of the Optical
Mark Reader or Optical Scan System, precinct-based technologies that the poll body
shall accept.27cralawred

Component 1 (B), subparagraphs (5) and (19) states as follows:

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5.
The system's hardware shall have a display panel that is capable to display customizable
messages or prompts of each stage of the process execution, including prompts and
messages for user interaction purposes.
...
19.
The system shall have a vote verification feature which shall display and print the voter's
choices, which can be enabled or disabled in the configuration using the [Election
Management System]. (Emphasis supplied)
Petitioners claim that the Commission on Elections refuses to implement the VVPAT
function based on fears that the security feature may aid in vote-buying, and that the
voting period may take longer.28 On February 9, 2016, petitioners read from ABS-CBN
News Online that with a vote of 7-0, the Commission on Elections En Banc decided not
to implement the VVPAT for the 2016 Elections.29 Petitioners attached a copy of the
article.30 Other news reports state that the Commission on Elections ruled similarly
against the voting receipts in 2010 and 2013.31

At the Joint Congressional Oversight Committee on the Automated Election System on

February 16, 2016,32 the Commission on Elections, through its Chairperson Andres D.
Bautista (Chairperson Bautista), supposedly gave its reasons for refusing to issue paper
receipts. First, "politicians can use the receipts in vote buying[;]" second, it may
increase voting time to five to seven hours in election precincts:33
[T]he poll body has decided against printing the receipt because it might be used for
vote buying and that it would result in the vote-counting process being extended from
six to seven hours since it takes about 13 seconds to print a receipt, meaning each
machine would have to run for that long for the receipts.

Bautista said another "big concern" is that "there might be losing candidates who might
question the results, basically instructing their supporters that when the machine prints
out the receipt, regardless of what the receipt says, they will say that it's not
correct."34ChanRoblesVirtualawlibrary
On February 11, 2016, the Commission on Elections issued Resolution No. 1005735
providing for "rules and general instructions on the process of testing and sealing, [as
well as] voting, counting, and transmission of election results."36 Adopting Resolution
No. 10057 by a vote of 7-0, the Commission on Elections En Banc made no mention
using VVPAT receipts for the 2016 national elections.

Petitioners argue that the Commission on Elections' fears are "baseless and
speculative."37 In assailing the Commission on Elections' reasons, petitioners cite the
Position Paper38 of alleged automated elections expert, Atty. Glenn Ang Chong (Atty.
Chong). Atty. Chong recommended that the old yellow ballot boxes be used alongside
the voting machine. The VVPAT receipts can be immediately placed inside the old ballot
boxes.39

After the voter casts his or her vote, he or she gets off the queue and walks to where
the old ballot box is. There, the voter may verify if the machine accurately recorded the
vote; if so, the voter drops the VVPAT receipt into the old ballot box.40 Should there be
any discrepancy, the voter may have it duly recorded with the poll watchers for analysis
and appropriate action.41 The poll watchers must ensure that all receipts are deposited
into the old ballot box.42 This will guarantee that no voter can sell his or her vote using
the receipt.43

At the end of the polling, the old ballot boxes shall be turned over to the accredited
citizens' arm or representatives of the public for the manual verification count of the
votes cast. A member of the Board of Election Inspectors may supervise the count. The
result of the manual verification count (using the old ballot boxes) shall be compared
with that of the automated count (saved in the vote-counting machine).44

Petitioners add that during Senate deliberations,45 the main proponent of the
amendatory law, Former Senator Gordon, highlighted the importance of "an audit trail
usually supported by paper[.]"46

On November 10, 2015, Bagumbayan-VNP, Inc. sent Commission on Elections

Chairperson Bautista a letter demanding the implementation of the VVPAT feature for
the May 9, 2016 Elections.47 However, the Commission on Elections never answered the
letter.48

According to petitioners, the inclusion of VVPAT, a "mandatory requirement under the

automated election laws, [has been] flagrantly violated by [COMELEC] during the 2010
and 2013 Elections." They claim that the previous demands made on the Commission on
Elections to reactivate the VVPAT security feature "fell on deaf ears."49 In the 2010 and
2013 Elections, all a voter received from the voting machines were the words,
"Congratulations! Your vote has been counted," or an otherwise similar phrase.50

Petitioners claim that under Section 28 of Republic Act No. 9369, amending Section 35
of Republic Act No. 8436, anyone "interfering with and impeding . . . the use of
computer counting devices and the processing, storage, generation and transmission of
election results, data or information" commits a felonious act.51 The Commission on
Elections allegedly did so when it refused to implement VVPAT.52

In view of the foregoing, petitioners filed a Special Civil Action for Mandamus under Rule
65, Section 3 of the Rules of Court. They ask this court to compel the Commission on
Elections to comply with the provisions of Section 6(e), (f), and (n) of Republic Act No.
8436, as amended.

Petitioners argue that mandamus is proper to "enforce a public right" and "compel the
performance of a public duty."53 Under Article VIII, Section 5(1) of the Constitution, this
court has original jurisdiction over petitions for mandamus. In addition, Rule 65, Section
4 of the Rules of Court allows for a civil action for mandamus to be directly filed before
this court.54 There is no reglementary period in a special civil action for mandamus.55

According to petitioners, the law prescribes the "minimum" criteria of adopting VVPAT as
one of the security features. The use of the word "must"56 makes it mandatory to have
a paper audit "separate and distinct from the ballot."57 The Commission on Elections
allegedly has neither leeway "nor right to claim that the ballot itself is the paper audit
trail."58 Likewise, the words, "voter verified" in VVPAT means the voter, not the
Commission on Elections, must be the one verifying the accuracy of the vote cast.59

Petitioners conclude that the Commission on Elections' "baseless fear of vote buying" is
no excuse to violate the law. "There is greater risk of cheating on a mass scale if the
VVPAT were not implemented because digital cheating" is even more "difficult to detect .
. . than cheating by isolated cases of vote buying."60

In the Resolution dated February 23, 2016, this court required the Commission on
Elections to comment on the petition within a non-extendible period of five (5) days
after receiving the notice.

Instead of submitting its Comment, the Commission on Elections filed a Motion for
Additional Time to File Comment through the Office of the Solicitor General.61 The Office
of the Solicitor General alleged that it "has not yet received a copy of the Petition and
has yet to obtain from COMELEC the documents relevant to this case."62

It is not often that this court requires the filing of a comment within a non-extendible
period. This is resorted to when the issues raised by a party is fundamental and the
ambient circumstances indicate extreme urgency. The right of voters to verify whether
vote-counting machines properly recorded their vote is not only a statutory right; it is
one that enables their individual participation in governance as sovereign. Among all
government bodies, the Commission on Elections is the entity that should appreciate
how important it is to respond to cases filed by the public to enable these rights. It
perplexes this court that the Commission on Elections failed to immediately transmit
relevant documents to the Office of the Solicitor General to allow them to respond within
the time granted.

The Office of the Clerk of Court En Banc noted that both the Commission on Elections
and the Office of the Solicitor General were already furnished with a copy of the Petition
when this court ordered them to file a comment.63 Due to the urgency to resolve this
case, this court denied the Commission on Elections' Motion. This court cannot fail to act
on an urgent matter simply because of the non-compliance of the Commission on
Elections and the Office of the Solicitor General with its orders. This court cannot accept
the lackadaisical attitude of the Commission on Elections and its counsel in addressing
this case. This court has been firm that as a general rule, motions for extension are not
granted, and if granted, only for good and sufficient cause.64 Counsels, even those from
government, should not assume that this court will act favorably on a motion for
extension of time to file a pleading.65

For this court's resolution is whether the Commission on Elections may be compelled,
through a writ of mandamus, to enable the Voter Verified Paper Audit Trail system
capability feature for the 2016 Elections.

We grant the Petition.

Mandamus is the relief sought "[w]hen any tribunal corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station," and "there is no other plain, speedy and
adequate remedy in the ordinary course of law."66

Through a writ of mandamus, the courts "compel the performance of a clear legal duty
or a ministerial duty imposed by law upon the defendant or respondent"67 by operation
of his or her office, trust, or station. The petitioner must show the legal basis for the
duty, and that the defendant or respondent failed to perform the duty.

Petitioners argue that the Commission on Elections unlawfully neglected to perform its
legal duty of fully implementing our election laws, specifically Republic Act No. 8436,
Section 6(e), (f), and (n), as amended by Republic Act No. 9369:68
SEC. 6. Minimum System Capabilities. — The automated election system must at least
have the following functional capabilities:

....
(e) Provision for voter verified paper audit trail;

(f) System auditability which provides supporting documentation for verifying the
correctness of reported election results;

....

(n) Provide the voter a system of verification to find out whether or not the machine has
registered his choice;
Commission on Elections Resolution No. 10057 promulgated on February 11, 2016 did
not include mechanisms for VVPAT. Under Part III of the Resolution, it merely stated:
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SEC. 40. Manner of voting. -

a. The voter shall:

Using a ballot secrecy folder and the marking pen provided by the Commission, fill
his/her ballot by fully shading the circle beside the names of the candidates and the
party, organization or coalition participating in the party-list system of representation, of
his/her choice; and

After accomplishing his/her ballot, approach the VCM, insert his/her ballot in the ballot
entry slot;
The VCM will display "PROCESSING.../PAKIHINTAY... KASALUKUYANG PINOPROSESO";

The ballot shall automatically be dropped inside the ballot box. The VCM will then display
the message "YOUR VOTE HAS BEEN CAST/ANG IYONG BOTO AY NAISAMANA."

The VCM will display the message "AMBIGUOUS MARK DETECTED" if the ovals are not
properly shaded or an unintentional mark is made. It will display the message
"AMBIGUOUS MARKS DETECTED/MAY MALABONG MARKA SA BALOTA." The following
options shall be provided "TO CAST BALLOT PRESS/PARA IPASOK ANG BALOTA,
PINDUTIN" or "TO RETURN BALLOT, PRESS/PARA IBALIK ANG BALOTA, PINDUTIN."
Press the "TO RETURN BALLOT, PRESS/PARA IBALIK ANG BALOTA, PINDUTIN" to return
the ballot to the voter. Let the voter review the ballot and ensure that the ovals opposite
the names of the candidate voted for are fully shaded.

In case of illiterate voters, PWD voters who are visually-impaired, and senior citizens
(SCs) who may need the use of headphones, the BEI shall insert the headphones so
they can follow the instructions of the VCM.
b. The poll clerk/support staff shall:
Monitor, from afar, the VCM screen to ensure that the ballot was successfully accepted;

Thereafter, whether or not the voter's ballot was successfully accepted, apply indelible
ink to the voter's right forefinger nail or any other nail if there be no forefinger nail; and

Instruct the voter to return the ballot secrecy folder and marking pen, and then leave
the polling place.
In a press conference last March 4, 2016, Commission on Elections Chairperson Andres
Bautista manifested that the Commission on Elections decided "to err on the side of
transparency" and resolved to allow voters to have 15-second on-screen verification of
the votes they have casted through the vote-counting machine.69 Allowing on-screen
verification is estimated to add two (2) hours to the voting period on May 9, 2016. As
reported, the meeting of the Commission on Elections En Banc to pass this Resolution
was on March 3, 2016, three (3) days after they were required to file a comment before
this court.

Nonetheless, the inaction of the Commission on Elections in utilizing the VVPAT feature
of the vote-counting machines fails to fulfill the duty required under Republic Act No.
8436, as amended.
Article XI(C), Section 2 of the 1987 Constitution empowered the Commission of Elections
to "[e]nforce and administer all laws and regulations relative to the conduct of an
election." One of the laws that the Commission on Elections must implement is Republic
Act No. 8436, as amended by Republic Act No. 9369, which requires the automated
election system to have the capability of providing a voter-verified paper audit trail.

Based on the technical specifications during the bidding, the current vote-counting
machines should meet the minimum system capability of generating a VVPAT. However,
the Commission on Elections' act of rendering inoperative this feature runs contrary to
why the law required this feature in the first place. Under Republic Act No. 8436, as
amended, it is considered a policy of the state that the votes reflect the genuine will of
the People.70 The full text of the declaration of policy behind the law authorizing the use
of an automated election system states:
chanRoblesvirtualLawlibrary
SECTION 1. Declaration of Policy. — It is the policy of the State to ensure free, orderly,
honest, peaceful, credible and informed elections, plebiscites, referenda, recall and other
similar electoral exercises by improving on the election process and adopting systems,
which shall involve the use of an automated election system that will ensure the secrecy
and sanctity of the ballot and all election, consolidation and transmission documents in
order that the process shall be transparent and credible and that the results shall be
fast, accurate and reflective of the genuine will of the people.

The State recognizes the mandate and authority of the Commission to prescribe the
adoption and use of the most suitable technology of demonstrated capability taking into
account the situation prevailing in the area and the funds available for the purpose.
By setting the minimum system capabilities of our automated election system, the law
intends to achieve the purposes set out in this declaration. A mechanism that allows the
voter to verify his or her choice of candidates will ensure a free, orderly, honest,
peaceful, credible, and informed election. The voter is not left to wonder if the machine
correctly appreciated his or her ballot. The voter must know that his or her sovereign
will, with respect to the national and local leadership, was properly recorded by the
vote-counting machines.

The minimum functional capabilities enumerated under Section 6 of Republic Act 8436,
as amended, are mandatory. These functions constitute the most basic safeguards to
ensure the transparency, credibility, fairness and accuracy of the upcoming elections.

The law is clear. A "voter verified paper audit trail" requires the following: (a) individual
voters can verify whether the machines have been able to count their votes; and (b)
that the verification at minimum should be paper based.

There appears to be no room for further interpretation of a "voter verified paper audit
trail." The paper audit trail cannot be considered the physical ballot, because there may
be instances where the machine may translate the ballot differently, or the voter
inadvertently spoils his or her ballot.

In Maliksi v. Commission on Elections,71 the losing mayoralty candidate questioned the

result of the elections. Upon inspection of the physical ballots, several votes were
invalidated due to the presence of double-shading. However, when the digital printouts
of the ballots were checked, the questioned ballots only had single shade. The physical
ballots were tampered to invalidate several votes.

The situation in Maliksi could have been avoided if the Commission on Elections utilized
the paper audit trail feature of the voting machines. The VVPAT ensures that the
candidates selected by the voter in his or her ballot are the candidates voted upon and
recorded by the vote-counting machine. The voter himself or herself verifies the
accuracy of the vote. In instances of Random Manual Audit72 and election protests, the
VVPAT becomes the best source of raw data for votes.
The required system capabilities under Republic Act No. 8436, as amended, are the
minimum safeguards provided by law. Compliance with the minimum system capabilities
entails costs on the state and its taxpayers. If minimum system capabilities are met but
not utilized, these will be a waste of resources and an affront to the citizens who paid for
these capabilities.

It is true that the Commission on Elections is given ample discretion to administer the
elections, but certainly, its constitutional duty is to "enforce the law." The Commission is
not given the constitutional competence to amend or modify the law it is sworn to
uphold. Section 6(e), (f), and (n) of Republic Act No. 8436, as amended, is law. Should
there be policy objections to it, the remedy is to have Congress amend it.

The Commission on Elections cannot opt to breach the requirements of the law to
assuage its fears regarding the VVPAT. Vote-buying can be averted by placing proper
procedures. The Commission on Elections has the power to choose the appropriate
procedure in order to enforce the VVPAT requirement under the law, and balance it with
the constitutional mandate to secure the secrecy and sanctity of the ballot.73

We see no reason why voters should be denied the opportunity to read the voter's
receipt after casting his or her ballot. There is no legal prohibition for the Commission on
Elections to require that after the voter reads and verifies the receipt, he or she is to
leave it in a separate box, not take it out of the precinct. Definitely, the availability of all
the voters' receipts will make random manual audits more accurate.

The credibility of the results of any election depends, to a large extent, on the
confidence of each voter that his or her individual choices have actually been counted. It
is in that local precinct after the voter casts his or her ballot that this confidence starts.
It is there where it will be possible for the voter to believe that his or her participation as
sovereign truly counts.chanrobleslaw

WHEREFORE, the Petition for Mandamus is GRANTED. The Commission on Elections is

ORDERED to enable the vote verification feature of the vote-counting machines, which
prints the voter's choices without prejudice to the issuance of guidelines to regulate the
release and disposal of the issued receipts in order to ensure a clean, honest, and
orderly elections such as, but not limited to, ensuring that after voter verification,
receipts should be deposited in a separate ballot box and not taken out of the precinct.

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo,
Perez, Mendoza, Reyes, Perlas-Bernabe, Jardeleza, and Caguioa, JJ., concur.
Brion, J., on leave.chanroblesvirtuallawlibrary