Election Law

Brillantes et. al. v. COMELECFacts:Republic Act No.
8436 mandates the use by the COMELEC of

Automated Election Systemfor the national and local elections. By virtue of this law, the COMELEC
promulgated a resolutionfor the implementation of this law. Under the said resolution the automation
of election wasdivided into 3 phases namely: Phase 1, for the computerized registration of voters and
validationof voters; Phase 2 is for the computerized voting and counting of votes; and Phase 3
concernsthe electronic transmission of results. Phase 1 was implemented while on the other hand, due
tocertain controversies surrounding the implementation of Phase 1 the same was notimplemented. This
petition concerns Resolution No. 6712 issued by the COMELEC en banc promulgatedby the COMELEC
barely two weeks before the May 2004 Synchronized residential and localelections mandating the
electronic transmission of the election results for the national elections. The resolution in effect
implements the Phase 3 of the automation though the COMELEC dubbedthe electronic transmission of
results as an “unofficial”’ quick count. The petitioners assail the above resolution because here is no
provision under Rep. Act No.8436 which authorizes the COMELEC to engage in the
biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission
of election results (PhaseIII). Even assuming for the nonce that all the three (3) phases are duly
authorized, they mustcomplement each other as they are not distinct and separate programs but mere
stages of onewhole scheme. Consequently, considering the failed implementation of Phases I and II,
there isno basis at all for the respondent COMELEC to still push through and pursue with Phase III.
Thepetitioner essentially posits that the counting and consolidation of votes contemplated underSection
6 of Rep. Act No. 8436 refers to the official COMELEC count under the fully automatedsystem and not
any kind of "unofficial" count via electronic transmission of advanced results asnow provided under the
assailed resolution. On the other hand, petitioner-intervenors assail theconstitutionality of Resolution
6712 effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the
Constitution to canvass the votes for President andVice-President. Further, as there has been no
appropriation by Congress for the respondentCOMELEC to conduct an "unofficial" electronic
transmission of results of the May 10, 2004elections, any expenditure for the said purpose contravenes
Article VI, Section 29 (par. 1) of theConstitution.All of them likewise assail the legality of the resolution
on the ground that it encroachesupon the authority of NAMFREL, as the citizens’ accredited arm, to
conduct the "unofficial" quickcount as provided under pertinent election laws. It also violates Section
52(i) of the OmnibusElection Code, relating to the requirement of notice to the political parties and
candidates of theadoption of technological and electronic devices during the elections.COMELEC
counters by saying that the Court has no jurisdiction to pass upon the assailedresolution’s validity
claiming that it was promulgated in the exercise of the respondentCOMELEC’s executive or
administrative power as also because the issue involves a “politicalquestion. It likewise challenges the
standing of all the petitioners to file the present petition.COMELEC also denied the resolution aims to
implement the Phase 3 of the electionautomation system. They also argue that what is contemplated in
the assailed resolution is not acanvass of the votes but merely consolidation and transmittal thereof. As
such, it cannot bemade the basis for the proclamation of any winning candidate. Emphasizing that the
project is"unofficial" in nature, the COMELEC opines that it cannot, therefore, be considered
aspreempting or usurping the exclusive power of Congress to canvass the votes for President andVice-
President.
Issue:Whether the petitioners have standing to file the petition
Held: Yes. Since the implementation of the assailed resolution obviously involves theexpenditure of
funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess
the requisite standing to question its validity as they have sufficient interest in preventing theillegal
expenditure of money raised by taxation. In essence, taxpayers are allowed to sue wherethere is a claim
of illegal disbursement of public funds, or that public money is being deflected toany improper purpose,
or where the petitioners seek to restrain the respondent from wastingpublic funds through the
enforcement of an invalid or unconstitutional law. Some of thepetitioners are also representatives of
major political parties that have participated in the May10, 2004 elections. Some represent the
NAMFREL, which is the citizens’ arm authorized toconduct an "unofficial" quick count during the said
elections. They have sufficient, direct andpersonal interest in the manner by which the respondent
COMELEC would conduct the elections,including the counting and canvassing of the votes cast therein.
Drilon and De Venecia are,respectively, President of the Senate and Speaker of the House of
Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass
the votes for Presidentand Vice-President. They have the requisite standing to prevent the usurpation of
theconstitutional prerogative of Congress.Issue:Whether the petition involves a justiciable
controversyHeld: Yes. Petitioner and the petitioners-in-intervention are questioning the legality of
therespondent COMELEC’s administrative issuance will not preclude this Court from exercising itspower
of judicial review to determine whether or not there was grave abuse of discretionamounting to lack or
excess of jurisdiction on the part of the respondent COMELEC in issuingResolution No. 6712. Indeed,
administrative issuances must not override, supplant or modify thelaw, but must remain consistent with
the law they intend to carry out.27 When the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribedqualifications or conditions have been met or the
limitations respected, is justiciable – theproblem being one of legality or validity, not its wisdom.28 In
the present petition, the Courtmust pass upon the petitioner’s contention that Resolution No. 6712
does not have adequatestatutory or constitutional basis.Issue:Whether the respondent COMELEC
committed grave abuse of discretion amounting to lackor excess of jurisdiction in promulgating the
assailed resolutionHeld: Yes.
First.
The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on
a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the
election of President and Vice-President.
Second.
Theassailed COMELEC resolution contravenes the constitutional provision that "no money shall bepaid
out of the treasury except in pursuance of an appropriation made by law. By its very terms,the
electronic transmission and tabulation of the election results projected under Resolution No.6712 is
"unofficial" in character, meaning "not emanating from or sanctioned or acknowledgedby the
government or government body. Any disbursement of public funds to implement thisproject is contrary
to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003General Appropriations
Act. The use of the COMELEC of its funds appropriated for the AES for the"unofficial" quick count project
may even be considered as a felony under Article 217 of theRevised Penal Code, as amended. The
implementation of the assailed resolution would entail, indue course, the hiring of additional
manpower, technical services and acquisition of equipment,including computers and software, among
others. According to the COMELEC, it neededP55,000,000 to operationalize the project, including the
encoding process. Hence, it wouldnecessarily involve the disbursement of public funds for which there
must be the correspondingappropriation.
Third.
It disregards existing laws which authorize solely the duly-accreditedcitizens’ arm to conduct the
"unofficial" counting of votes. Under Section 27 of Rep. Act No.7166, as amended by Rep. Act No. 8173,
and reiterated in Section 18 of Rep. Act No. 8436, theaccredited citizen’s arm - in this case, NAMFREL - is
exclusively authorized to use a copy of the.
Loong v. COMELEC
TUPAY T. LOONG v. COMMISSION ON ELECTIONS and ABDUSAKUR TAN, G.R. No. 133676, April 14, 1999
FACTS: Automated elections systems was used for the May 11, 1998 regular elections held in the
Autonomous Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose
Tolentino, Jr. headed the COMELEC Task Force to have administrative oversight of the elections in Sulu.
On May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies
between the election returns and the votes cast for the mayoralty candidates in the municipality of
Pata. To avoid a situation where proceeding with automation will result in an erroneous count, he
suspended the automated counting of ballots in Pata and immediately communicated the problem to
the technical experts of COMELEC and the suppliers of the automated machine. After the consultations,
the experts told him that the problem was caused by misalignment of the ovals opposite the names of
candidates in the local ballots. They found nothing wrong with the automated machines. The error was
in the printing of the local ballots, as a consequence of which, the automated machines failed to read
them correctly. Atty. Tolentino, Jr. called for an emergency meeting of the local candidates and the
military-police officials overseeing the Sulu elections. Among those who attended were petitioner Tupay
Loong and private respondent Abdusakar Tan and intervenor Yusop Jikiri (candidates for governor.) The
meeting discussed how the ballots in Pata should be counted in light of the misaligned ovals. There was
lack of agreement. Some recommended a shift to manual count (Tan et al) while the others insisted on
automated counting (Loong AND Jikiri).
Reports that the automated counting of ballots in other municipalities in Sulu was not working well were
received by the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the
automated machines. These municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots
were rejected because they had the wrong sequence code.
Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his
report and recommendation, urging the use of the manual count in the entire Province of Sulu. 6 On the
same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the
municipality of Pata.. The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving,
Atty. Tolentino, Jr.'s recommendation and the manner of its implementation. On May 15, 1998, the
COMELEC en banc issued Minute Resolution No. 98-1796 laying down the rules for the manual count.
Minute Resolution 98-1798 laid down the procedure for the counting of votes for Sulu at the PICC.
COMELEC started the manual count on May 18, 1998.
ISSUE: 1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is
the appropriate remedy to invalidate the disputed COMELEC resolutions. 2. Assuming the
appropriateness of the remedy, whether or not COMELEC committed grave abuse of discretion
amounting to lack of jurisdiction in ordering a manual count. (The main issue in the case at bar) 2.a. Is
there a legal basis for the manual count? 2.b. Are its factual bases reasonable? 2.c. Were the petitioner
and the intervenor denied due process by the COMELEC when it ordered a manual count? 3. Assuming
the manual count is illegal and that its result is unreliable, whether or not it is proper to call for a special
election for the position of governor of Sulu.
HELD: The petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there
being no showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos.
98-1748, 98-1750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted.
(1.) Certiorari is the proper remedy of the petitioner. The issue is not only legal but one of first
impression and undoubtedly suffered with significance to the entire nation. It is adjudicatory of the right
of the petitioner, the private respondents and the intervenor to the position of governor of Sulu. These
are enough considerations to call for an exercise of the certiorari jurisdiction of this Court.
(2a). A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in
relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to
enforce and administer all laws and regulations relative to the conduct of an election , plebiscite,
initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give COMELEC
all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest,
peaceful, and credible elections.
The order for a manual count cannot be characterized as arbitrary, capricious or whimsical. It is well
established that the automated machines failed to read correctly the ballots in the municipality of Pata
The technical experts of COMELEC and the supplier of the automated machines found nothing wrong
the automated machines. They traced the problem to the printing of local ballots by the National
Printing Office. It is plain that to continue with the automated count would result in a grossly erroneous
count. An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of
the sovereignty of the electorate
In enacting R.A. No. 8436 , Congress obviously failed to provide a remedy where the error in counting is
not machine-related for human foresight is not all-seeing. We hold, however, that the vacuum in the law
cannot prevent the COMELEC from levitating above the problem. . We cannot kick away the will of the
people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when
machine count does not work. Counting is part and parcel of the conduct of an election which is under
the control and supervision of the COMELEC. It ought to be self-evident that the Constitution did not
envision a COMELEC that cannot count the result of an election.
It is also important to consider that the failures of automated counting created post election tension in
Sulu, a province with a history of violent elections. COMELEC had to act desively in view of the fast
deteriorating peace and order situation caused by the delay in the counting of votes (2c) Petitioner
Loong and intervenor Jikiri were not denied process. The Tolentino memorandum clearly shows that
they were given every opportunity to oppose the manual count of the local ballots in Sulu. They were
orally heard. They later submitted written position papers. Their representatives escorted the transfer
of the ballots and the automated machines from Sulu to Manila. Their watchers observed the manual
count from beginning to end. 3. The plea for this Court to call a special election for the governorship of
Sulu is completely off-line. The plea can only be grounded on failure of election. Section 6 of the
Omnibus Election Code tells us when there is a failure of election, viz:
Sec. 6. Failure of election. - If, on account of force majeure, terrorism, fraud, or other analogous causes,
the election in any polling place has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such election results in a
failure to elect, and in any of such cases the failure or suspension of election would affect the result of
the election, the Commission shall on the basis of a verified petition by any interested party and after
due notice and hearing, call for the holding or continuation of the election, not held, suspended or
which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect. There is another reason why a special
election cannot be ordered by this Court. To hold a special election only for the position of Governor will
be discriminatory and will violate the right of private respondent to equal protection of the law. The
records show that all elected officials in Sulu have been proclaimed and are now discharging their
powers and duties. These officials were proclaimed on the basis of the same manually counted votes of
Sulu. If manual counting is illegal, their assumption of office cannot also be countenanced. Private
respondent's election cannot be singled out as invalid for alikes cannot be treated unalikes.
The plea for a special election must be addressed to the COMELEC and not to this Court.
G.R. No. 106270-73 February 10, 1994
SULTAN MOHAMAD L. MITMUG, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL

SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.
BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was
abnormally low. As a result, several petitions were filed seeking the declaration of failure of election in
precincts where less than 25% of the electorate managed to cast their votes. But a special election was
ordered in precincts where no voting actually took place. The Commission on Elections (COMELEC) ruled
that for as long as the precincts functioned and conducted actual voting during election day, low voter
turnout would not justify a declaration of failure of election. We are now called upon to review this
ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were
among the candidates for the mayoralty position of Lumba-Bayabao during the 11 may 1992 election.
There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where
the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast their
votes. Five (5) of these precincts did not conduct actual voting at all. 1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5)
precincts which failed to function during election day. On 30 July 1992 another special election was held
for a sixth precinct. 2
In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30
May 1992 alleging various irregularities such as the alteration, tampering and substitution of ballots. But
on 13 July 1992, COMELEC considered the petition moot since the votes in the subject precincts were
already counted. 3
Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-Bayabao
were also filed with COMELEC by other mayoralty candidates, to wit:
1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent
petition praying for the holding of a special election in Precinct No. 22-A alleging therein that when the
ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition was granted
and a special election for Precinct No. 22-A was set for 25 July 1992. 4
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a
petition to declare failure of election in twenty-nine (29) more precincts as a result of alleged tampering
of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was dismissed. COMELEC ruled
that there must be a situation where there is absolute inability to vote before a failure of election can be
declared. 7 Since voting was actually conducted in the contested precincts, there was no basis for the
petition.
3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to
exclude from the counting the ballots cast in six (6) precincts on the ground that the integrity of the
ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC considered the petition moot, as
the issue raised therein was related to that of SPA No. 92-311 which on 9 July 1992 was already set aside
as moot. 9
4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a
petition which in the main sought the declaration of failure of election in all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July
1992, COMELEC dismissed the petition, ruling that the allegations therein did not support a case of
failure of election. 11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC
treated the same as a motion for reconsideration and promptly denied it considering that under the
COMELEC Rules of Procedure such motion was a prohibited pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July
1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new Board
convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent was
proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of
election in forty-nine (49) precincts where less than a quarter of the electorate were able to cast their
votes. He also prayed for the issuance of a temporary restraining order to enjoin private respondent
from assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur
disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already
deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao del
Sur, he informed the trial court of the pendency of these proceedings. Paragraph 3 of his protest states
"[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the herein
protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse with this Court. On the
contrary, he intended to pursue it. Where only an election protest ex abundante ad cautela is filed, the
Court retains jurisdiction to hear the petition seeking to annul an election. 16
The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting to lack
of jurisdiction in denying motu proprio and without due notice and hearing the petitions seeking to
declare a failure of election in some or all of the precincts in Lumba-Bayabao, Lanao del Sur. After all,
petitioner argues, he has meritorious grounds in support thereto, viz., the massive disenfranchisement
of voters due to alleged terrorism and unlawful clustering of precincts, which COMELEC should have at
least heard before rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the

proclamation of a winning candidate together with his subsequent assumption of office is not an
impediment to the prosecution of the case to its logical conclusion. 17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified
petition to declare a failure to elect, notices to all interested parties indicating therein the date of
hearing should be served through the fastest means available. 18 The hearing of the case will also be
summary in nature. 19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon
with dispatch only after hearing thereon shall have been conducted. Since COMELEC denied the other
petitions 20 which sought to include forty-three (43) more precincts in a special election without
conducting any hearing, it would appear then that there indeed might have been grave abuse of
discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof
which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of the
Philippines, indicates otherwise. It reads —
Sec. 2. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or other
analogous causes the election in any precinct has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody of canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
after the cessation of the cause of such postponement or suspension of the election or failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions
must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or,
even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not
cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of the
election. But, the first requisite is missing, i.e., that no actual voting took place, or even if there is, the
results thereon will be tantamount to a failure to elect. Since actual voting and election by the
registered voters in the questioned precincts have taken place, the results thereof cannot be
disregarded and excluded. 22 COMELEC therefore did not commit any abuse of discretion, much less
grave, in denying the petitions outright. There was no basis for the petitions since the facts alleged
therein did not constitute sufficient grounds to warrant the relief sought. For, the language of the law
expressly requires the concurrence of these conditions to justify the calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the case
will be held before COMELEC will act on it. The verified petition must still show on its face that the
conditions to declare a failure to elect are present. In the absence thereof, the petition must be denied
outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare
failure of election in forty-three (43) more, precincts, there is no more need to receive evidence on
alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better ventilated
in an election contest. These irregularities may not as a rule be invoked to declare a failure of election
and to disenfranchise the electorate through the misdeeds of a relative few. 24 Otherwise, elections will
never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry
fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been defiled and
cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no
provision in our election laws which requires that a majority of registered voters must cast their votes.
All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless
of the actual number of ballots cast. 25 Thus, even if less than 25% of the electorate in the questioned
precincts cast their votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.
SO ORDERED.
[G. R. No. 149803. January 31, 2002]
DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE,
MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL,
DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G. MANGUDADATU and ABBAS A.
PENDATUN, JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU
NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O.
TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A.
RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents.
DECISION
PARDO, J.:
The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised
Rules of Court with preliminary injunction or temporary restraining order[1] to nullify and set aside two
(2) orders dated July 26, 2001[2] and August 28, 2001[3] of the Commission on Elections (COMELEC),
ordering a random technical examination of pertinent election paraphernalia and other documents in
several municipalities in the province of Maguindanao to determine a failure of elections.
Petitioners[4] and respondents[5] were candidates for the provincial elective positions in the province of
Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao contended for
the position of governor. The slate of Ampatuan emerged as winners as per election returns.
On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results
and/or declaration of failure of elections[6] in several municipalities[7] in the province of Maguindanao.
They claimed that the elections “were completely sham and farcical.” The ballots were filled-up en
masse by a few persons the night before election day, and in some precincts, the ballot boxes, official
ballots and other election paraphernalia were not delivered at all.[8]
On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates
for congressman of the second district, governor, vice-governor and board members of
Maguindanao.[9]
On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation.[10]
On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning
candidates for governor, vice-governor and board members of the first and second districts.[11]
Consequently, the Provincial Board of Canvassers proclaimed petitioners winners.[12]
On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order
dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the
petitioners.[13] Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17,
2001, the Court resolved to deny respondents’ petition.[14]
Petitioners’ assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the
consolidation of respondents’ petition for declaration of failure of elections with SPA Nos. 01-244, 01-
332, 01-360, 01-388 and 01-390.[15] The COMELEC further ordered a random technical examination on
four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted
and affixed in their voter’s registration records, and forthwith directed the production of relevant
election documents in these municipalities.[16]
On August 28, 2001, the Comelec issued another order[17] directing the continuation of the hearing and
disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It
likewise ordered the continuation of the technical examination of election documents as authorized in
the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to
be followed in the technical examination.[18]
On September 26, 2001, petitioners filed the present petition.[19] They claimed that by virtue of their
proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available
to respondents was not a petition for declaration of failure of elections but an election protest. The
former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner
by which the technical examination is to be conducted[20] would defeat the summary nature of a
petition for declaration of failure of elections.
On October 5, 2001, petitioners filed a motion[21] reiterating their request for a temporary restraining
order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders.
On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2)
assailed orders, the pertinent portion of which reads as follows:
“The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within ten
(10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28,
2001 in deference to the resolution of said court.”[22]
However, on November 13, 2001, the Comelec issued another order lifting the suspension.[23]
On November 20, 2001, we issued a temporary restraining order, to wit:
“xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective
immediately and continuing until further orders from this Court, ordering the respondent Commission
on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders
dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx.”[24]
The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to
hear and decide respondents’ petition for declaration of failure of elections after petitioners had been
proclaimed.
We deny the petition.
Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private
respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts.
Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after
the proclamation of the winning candidate.[25]
However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v.
Commission on Elections,[26] we ruled that “a pre-proclamation controversy is not the same as an
action for annulment of election results, or failure of elections.” These two remedies were more
specifically distinguished in this wise:
“While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election
returns on their face and is without jurisdiction to go beyond or behind them and investigate election
irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism, violence, and
other analogous causes in actions for annulment of election results or for declaration of failure of
elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of
actions for annulment of election results or declaration of failure of elections, may conduct technical
examination of election documents and compare and analyze voters’ signatures and thumbprints in
order to determine whether or not the elections had indeed been free, honest and clean.”[27]
The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority
to annul any canvass and illegal proclamation.[28] In the case at bar, we cannot assume that petitioners’
proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by
which the elections were held was put in issue by respondents in their petition for annulment of
election results and/or declaration of failure of elections.
Respondents’ allegation of massive fraud and terrorism that attended the May 14, 2001 election in the
affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the
Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of
the fact that “a pattern of conduct observed in past elections has been the pernicious ‘grab-the-
proclamation-prolong-the-protest’ slogan of some candidates or parties” such that even if the
protestant wins, it becomes “a mere pyrrhic victory, i.e., a vindication when the term of office is about
to expire or has expired.” xxx “We have but to reiterate the oft-cited rule that the validity of a
proclamation may be challenged even after the irregularly proclaimed candidate has assumed
office.”[29]
Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections.[30] This Court held that
Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of
elections. However, we made a pronouncement that the dismissal was proper since the allegations in
the petition did not justify a declaration of failure of elections. “Typoco’s relief was for Comelec to order
a recount of the votes cast, on account of the falsified election returns, which is properly the subject of
an election contest.”[31]
Respondents’ petition for declaration of failure of elections, from which the present case arose,
exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure
of elections. Thus:
“4.1. The ‘elections’ in at least eight (8) other municipalities xxx were completely sham and farcical.
There was a total failure of elections in these municipalities, in that in most of these municipalities, no
actual voting was done by the real, legitimate voters on election day itself but ‘voting’ was made only by
few persons who prepared in advance, and en masse, the ballots the day or the night before election
and, in many precincts, there was completely no voting because of the non-delivery of ballot boxes,
official ballots and other election paraphernalia; and in certain municipalities, while some semblance of
‘voting’ was conducted on election day, there was widespread fraudulent counting and/or counting
under very irregular circumstances and/or tampering and manufacture of election returns which
completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration
of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and
large, committed with the aid and/or direct participation of military elements who were deployed to
harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally,
of re-electionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and
flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal,
advanced preparation of ballots and election returns and, at times, manning the polling places or
precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election
paraphernalia were brought not to the precincts or voting centers concerned but somewhere else
where massive manufacture of ballots and election documents were perpetrated.”[32]
The Comelec en banc has the authority to annul election results and/or declare a failure of elections.[33]
Section 6 of the Omnibus Election Code further provides that:
“Section 6. Failure of election.- If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
preparation and the transmission of the election returns or in the custody or canvass thereof, such
interested party and after due notice and hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation
of the cause of such postponement or suspension of the election of failure to elect.”
Elucidating on the concept of failure of election, we held that:

“xxx before Comelec can act on a verified petition seeking to declare a failure of election, two (2)
conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by
law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the
votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added
that the cause of such failure of election should have been any of the following: force majeure, violence,
terrorism, fraud or other analogous cases.”[34]
In another case, we ruled that “while it may be true that election did take place, the irregularities that
marred the counting of votes and the canvassing of the election returns resulted in a failure to
elect.”[35]
In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of
respondents’ allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001
election. It is well to stress that the Comelec has started conducting the technical examination on
November 16, 2001. However, by an urgent motion for a temporary restraining order filed by
petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the
technical examination was held in abeyance until the present. In order not to frustrate the ends of
justice, we lift the temporary restraining order and allow the technical examination to proceed with
deliberate dispatch.
WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November
20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the
consolidated petitions and the technical examination as outlined in its September 27, 2001 order with
deliberate dispatch. No costs.
SO ORDERED.
EN BANC
CENTER FOR PEOPLE G.R. No. 189546
EMPOWERMENT IN
GOVERNANCE,
Petitioner, Present:
..
NACHURA,*
LEONARDO-DE CASTRO,*
- versus - BRION,*
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,* and
SERENO,** JJ.
COMMISSION ON ELECTIONS,
Respondent. Promulgated:
September 21, 2010
x --------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
This case concerns the duty of the Commission on Elections (COMELEC) to disclose the source code for
the Automated Election System (AES) technologies it used in the 2010 national and local elections.
On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG), a non-
government organization,[1] wrote respondent COMELEC, requesting a copy of the source code of the
Precinct Count Optical Scan (PCOS) programs, the Board of Canvassers Consolidation/Canvassing System
(BOC CCS) programs for the municipal, provincial, national, and congressional canvass, the COMELEC
server programs, and the source code of the in-house COMELEC programs called the Data Capturing
System (DCS) utilities.
CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.) 9369, which
provides:
xxxx
Once an AES technology is selected for implementation, the Commission shall promptly make the source
code of that technology available and open to any interested political party or groups which may
conduct their own review thereof.
Section 2(12) of R.A. 9369 describes the source code as the “human readable instructions that define
what the computer equipment will do.” This has been explained in an article:
Source code is the human readable representation of the instructions that control the operation of a
computer. Computers are composed of hardware (the physical devices themselves) and software (which
controls the operation of the hardware). The software instructs the computer how to operate; without
software, the computer is useless. Source code is the human readable form in which software is written
by computer programmers. Source code is usually written in a programming language that is arcane and
incomprehensible to non-specialists but, to a computer programmer, the source code is the master
blueprint that reveals and determines how the machine will behave.
Source code could be compared to a recipe: just as a cook follows the instructions in a recipe step-by-
step, so a computer executes the sequence of instructions found in the software source code. This is a
reasonable analogy, but it is also imperfect. While a good cook will use her discretion and common
sense in following a recipe, a computer follows the instructions in the source code in a mechanical and
unfailingly literal way; thus, while errors in a recipe might be noticed and corrected by the cook, errors
in source code can be disastrous, because the code is executed by the computer exactly as written,
whether that was what the programmer intended or not x x x.
The source code in voting machines is in some ways analogous to the procedures provided to election
workers. Procedures are instructions that are provided to people; for instance, the procedures provided
to poll workers list a sequence of steps that poll workers should follow to open the polls on election
morning. Source code contains instructions, not for people, but for the computers running the election;
for instance, the source code for a voting machine determines the steps the machine will take when the
polls are opened on election morning.[2] (Underscoring supplied)
On June 24, 2009 the COMELEC granted the request[3] for the source code of the PCOS and the CCS, but
denied that for the DCS, since the DCS was a “system used in processing the Lists of Voters which is not
part of the voting, counting and canvassing systems contemplated by R.A. 9369.” According to
COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals might change
the program and pass off an illicit one that could benefit certain candidates or parties.
Still, the COMELEC apparently did not release even the kinds of source code that it said it was approving
for release. Consequently, on July 13, 2009, CenPEG once more asked COMELEC for the source code of
the PCOS, together with other documents, programs, and diagrams related to the AES. CenPEG sent
follow-up letters on July 17 and 20 and on August 24, 2009.
On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist for the
reasons: 1) that it had not yet received the baseline source code of the provider, Smartmatic, since
payment to it had been withheld as a result of a pending suit; 2) its customization of the baseline source
code was targeted for completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the
customized source code still had to be reviewed by “an established international certification entity,”
which review was expected to be completed by the end of February 2010; and 4) only then would the
AES be made available for review under a controlled environment.
Rejecting COMELEC’s excuse, on October 5, 2009 CenPEG filed the present petition for mandamus,
seeking to compel COMELEC to immediately make its source codes available to CenPEG and other
interested parties.
COMELEC claimed in its comment that CenPEG did not have a clear, certain, and well-defined right that
was enforceable by mandamus because COMELEC’s duty to make the source code available
presupposed that it already had the same. COMELEC restated the explanation it gave in its August 26,
2009 letter to CenPEG.
In its manifestation and omnibus motion, CenPEG did not believe that the source code was still
unavailable considering that COMELEC had already awarded to an international certification entity the
review of the same and that COMELEC had already been field testing its PCOS and CCS machines.
On February 10, 2010 COMELEC filed a manifestation, stating that it had already deposited on February
9, 2010 the source code to be used in the May 10, 2010 elections with the Bangko Sentral ng Pilipinas.
Required to comment on this, CenPEG said on February 22, 2010 that the manifestation did not
constitute compliance with Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436.
In its earlier comment, COMELEC claimed, reiterating what it said in its August 26, 2009 letter to
CenPEG, that it would make the source code available for review by the end of February 2010 “under a
controlled environment.” Apparently, this review had not taken place and was overtaken by the May
10, 2010 elections.
On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the
issuance of a writ of mandamus in this case notwithstanding the fact that the elections for which the
subject source code was to be used had already been held. It claimed that the source code remained
important and relevant “not only for compliance with the law, and the purpose thereof, but especially in
the backdrop of numerous admissions of errors and claims of fraud.”
The Court finds the petition and this last manifestation meritorious.
The pertinent portion of Section 12 of R.A. 9369 is clear in that “once an AES technology is selected for
implementation, the Commission shall promptly make the source code of that technology available and
open to any interested political party or groups which may conduct their own review thereof.” The
COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse
for not disclosing the source code was that it was not yet available when CenPEG asked for it and,
subsequently, that the review had to be done, apparently for security reason, “under a controlled
environment.” The elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the
source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately
available to CenPEG and all other interested political parties or groups for independent review.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice
(On Official Leave) (On Official Leave)
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
(On Official Leave) (On Official Leave)
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
G.R. No. 163193 June 15, 2004
SIXTO S. BRILLANTES, JR., petitioner,
JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN
M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE A.
BERNAS, Petitioners-in-Intervention,
vs.COMMISSION ON ELECTIONS, respondent.
Facts:
Comelec issued resolutions adopting an Automated Elections System including the assailed resolution,
Resolution 6712, which provides for the electronic transmission of advanced result of “unofficial” count.
Petitioners claimed that the resolution would allow the preemption and usurpation of the exclusive
power of Congress to canvass the votes for President and Vice-President and would likewise encroach
upon the authority of NAMFREL, as the citizens’ accredited arm, to conduct the "unofficial" quick count
as provided under pertinent election laws. Comelec contended that the resolution was promulgated in
the exercise of its executive and administrative power "to ensure free, orderly, honest, peaceful and
credible elections” Comelec added that the issue is beyond judicial determination.
Issue:
Whether or not Comelec's promulgation of Resolution 6712 was justified.
Ruling:
The Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing
Resolution 6712. The issue squarely fell within the ambit of the expanded jurisdiction of the court.
Article VII, Section 4 of the Constitution, further bolstered by RA 8436, vest upon Congress the sole and
exclusive authority to officially canvass the votes for the elections of President and Vice-President.
Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173, and reiterated in Section 18 of Rep.
Act No. 8436, solely authorize NAMFREL, the duly-accredited citizen’s arm to conduct the “unofficial
counting of votes for the national or local elections. The quick count under the guise of an “unofficial”
tabulation would not only be preemptive of the authority of congress and NAMFREL, but would also be
lacking constitutional and/or statutory basis. Moreover, the assailed COMELEC resolution likewise
contravened the constitutional provision that "no money shall be paid out of the treasury except in
pursuance of an appropriation made by law." It being “unofficial”, any disbursement of public fund
would be contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003
General Appropriations Act.
The Omnibus Election Code in providing the powers and functions of the Commission subjects the same
to certain conditions with respect to the adoption of the latest technological and electronic devices, to
wit: (1)consideration of the area and available funds (2) notification to all political parties and
candidates. The aforementioned conditions were found to have not been substantially met.
Resolution 6712 was null and void.

G.R. No. 142907. November 29, 2000]
JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G. ANGELES, IN HER CAPACITY AS THE
ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and
ANTONIO M. SERAPIO, respondents.
DECISION
PARDO, J.:
The Case
The case before the Court is an original special civil action for certiorari and prohibition with preliminary
injunction or temporary restraining order seeking to annul the decision of the Regional Trial Court,
Caloocan City, Branch 125, the dispositive portion of which reads as follows:
“WHEREFORE, premises considered, the proclamation of the Protestee, Jose Emmanuel Carlos, by the
Board of Canvassers is accordingly SET ASIDE.
“The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY ELECTED MAYOR OF
VALENZUELA CITY.
“SO ORDERED.”[1]
The Facts
Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates for the position
of mayor of the municipality of Valenzuela, Metro Manila (later converted into a City) during the May
11, 1998 elections.
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila proclaimed petitioner
as the duly elected mayor of Valenzuela having obtained 102,688 votes, the highest number of votes in
the election returns.
On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the second highest
number of votes, filed with the Regional Trial Court, Valenzuela, Metro Manila, an election protest
challenging the results. Due to the inhibition of all judges of the Regional Trial Court in Valenzuela, the
case was ultimately assigned to the Regional Trial Court, Caloocan City, Branch 125, presided over by
respondent Judge Adoracion G. Angeles.
On June 26, 1998, petitioner filed with the trial court an answer with affirmative defenses and motion to
dismiss. The court denied the motion to dismiss by order dated January 14, 1999. Petitioner elevated
the order to the Commission on Elections (Comelec) on petition for certiorari and prohibition,[2] which,
however, has remained unresolved up to this moment.
In the course of the protest, the municipal treasurer of Valenzuela, who by law has custody of the ballot
boxes, collected the ballot boxes and delivered them to the Regional Trial Court, Caloocan City. The trial
court conducted a pre-trial conference of the parties but it did not produce a substantial result as the
parties merely paid superficial service and only agreed on the following:
1. Both parties admit their capacity to sue and be sued;
2. Both parties admit that the protestant was a candidate during the May 11, 1998 election;
3. Both parties admit that the protestee has been proclaimed as the elected mayor of Valenzuela,
Metro Manila, on May 21, 1998;
4. Both parties admit that the protestee allegedly obtained 102,688 votes while the protestant obtained
77,270 votes per canvass of election returns of the Board of Canvassers.
The pre-trial was then concluded and the parties agreed to the creation of seven (7) revision committees
consisting of a chairman designated by the court and two members representing the protestant and the
protestee.
Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a prayer for authority
to photocopy all the official copies of the revision reports in the custody of the trial court. However, the
trial court denied the issuance of such authorization.[3] The court likewise denied a motion for
reconsideration of the denial.[4] Then petitioner raised the denial to the COMELEC on petition for
certiorari and mandamus,[5] which also remains unresolved until this date.
The Revision Results
The revision of the ballots showed the following results:
(1) Per physical count of the ballots:
(a) protestant Serapio - 76,246 votes.
(b) protestee Carlos - 103,551 votes.

(2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53 stray votes in his
favor.
The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his favor.
The final tally showed:
(a) protestant Serapio - 66,602 votes.
(b) protestee Carlos - 83,609 votes, giving the latter a winning margin of 17,007 votes.
The Trial Court’s Ruling
Nevertheless, in its decision, the trial court set aside the final tally of valid votes because of its finding of
“significant badges of fraud,” namely:
1. The keys turned over by the City Treasurer to the court did not fit into the padlocks of the ballot
boxes that had to be forcibly opened;
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the seven (7) ballot
boxes did not contain any election returns;
3. Some schools where various precincts were located experienced brownouts during the counting of
votes causing delay in the counting although there was no undue commotion or violence that occurred;
4. Some of the assigned watchers of protestant were not in their posts during the counting of votes.
On the basis of the foregoing badges of fraud, the trial court declared that there was enough pattern of
fraud in the conduct of the election for mayor in Valenzuela. The court held that the fraud was
attributable to the protestee who had control over the election paraphernalia and the basic services in
the community such as the supply of electricity.
On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of fraud had
undoubtedly suppressed the true will of the electorate of Valenzuela and substituted it with the will of
the protestee. Notwithstanding the plurality of valid votes in favor of the protestee, the trial court set
aside the proclamation of protestee Jose Emmanuel Carlos by the Municipal Board of Canvassers and
declared protestant Antonio M. Serapio as the duly elected mayor of Valenzuela City.[6]
Hearing news that the protestant had won the election protest, the protestee secured a copy of the
decision from the trial court on May 4, 2000. On the other hand, notice of the decision was received by
the protestant on May 03, 2000.
On May 4, 2000, protestant filed with the trial court a motion for execution pending appeal.[7] On May
4, 2000, the trial court gave protestee five (5) days within which to submit his comment or opposition to
the motion.[8]
Petitioner’s Appeal to Comelec
Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of the trial court to the
Commission on Elections.[9]
The Petition at bar
On May 8, 2000, petitioner filed the present recourse.[10]
Petitioner raised the following legal basis:
(1) The Supreme Court has original jurisdiction to entertain special civil actions of certiorari and
prohibition;
(2) There are important reasons and compelling circumstances which justify petitioner’s direct
recourse to the Supreme Court;
(3) Respondent judge committed grave abuse of discretion when she declared respondent
Serapio as the duly elected mayor of Valenzuela despite the fact that she found that petitioner obtained
17,007 valid votes higher than the valid votes of respondent Serapio;
(4) The assailed decision is contrary to law, based on speculations and not supported by the
evidence as shown in the decision itself.[11]
The Issues
The issues raised are the following:
1. Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a special civil
action, the decision of the regional trial court in an election protest case involving an elective municipal
official considering that it has no appellate jurisdiction over such decision.
2. Whether the trial court acted without jurisdiction or with grave abuse of discretion when the court
set aside the proclamation of petitioner and declared respondent Serapio as the duly elected mayor of
Valenzuela City despite its finding that petitioner garnered 83,609 valid votes while respondent obtained
66,602 valid votes, or a winning margin of 17,007 votes.
TRO Issued
On May 8, 2000, we issued a temporary restraining order ordering respondent court to cease and desist
from further taking cognizance of Election Protest No. 14-V-98 more specifically from taking cognizance
of and acting on the Motion for Execution Pending Appeal filed by respondent Serapio on May 4,
2000.[12] respondent’s Position
On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift the temporary
restraining order and to declare petitioner in contempt of court for violating the rule against forum
shopping.[13] He submitted that Comelec and not the Supreme Court has jurisdiction over the present
petition for certiorari assailing the decision dated April 24, 2000 of the regional trial court. Assuming
that this Court and Comelec have concurrent jurisdiction and applying the doctrine of primary
jurisdiction, the Comelec has jurisdiction since petitioner has perfected his appeal therewith before the
filing of the instant petition. Certiorari cannot be a substitute for an appeal; the present petition is
violative of Revised Circular No. 28-91 on forum-shopping; issues raised are factual, not correctible by
certiorari; and that the temporary restraining order should be lifted, the petition dismissed, and
petitioner and counsel should be made to explain why they should not be punished for contempt of
court.
The Court’s Ruling
We find the petition impressed with merit.[14]
I. The Supreme Court is vested with original jurisdiction to issue writs of certiorari, prohibition and
mandamus against the decision of the regional trial court in the election protest case before it,
regardless of whether it has appellate jurisdiction over such decision.
Article VIII, Section 5 (1) of the 1987 Constitution provides that:
“Sec. 5. The Supreme Court shall have the following powers:
“(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.”
x x x
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that:
“SECTION 1. Petition for certiorari.—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 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 petition shall be accompanied by a certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification
of non-forum shopping as provided in the third paragraph of section 3, Rule 46.”
By Constitutional fiat, the Commission on Election (Comelec) has appellate jurisdiction over election
protest cases involving elective municipal officials decided by courts of general jurisdiction, as provided
for in Article IX (C), Section 2 of the 1987 Constitution:
“Sec. 2. The Commission on Elections shall exercise the following powers and functions:
“(1) x x x.
“(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.”
In like manner, the Comelec has original jurisdiction to issue writs of certiorari, prohibition and
mandamus involving election cases in aid of its appellate jurisdiction.[15] This point has been settled in
the case of Relampagos vs. Cumba,[16] where we held:
“In the face of the foregoing disquisitions, the court must, as it now does, abandon the ruling in the
Garcia and Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B. P. Blg. 697
providing as follows:
The Commission is vested with exclusive authority to hear and decide petitions for certiorari, prohibition
and mandamus involving election cases.
remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C
of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to
issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate
jurisdiction.” (Emphasis ours).
Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to issue writs of
certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction (regional trial
courts) in election cases involving elective municipal officials. The Court that takes jurisdiction first shall
exercise exclusive jurisdiction over the case.[17]
Ergo, this Court has jurisdiction over the present petition of certiorari as a special civil action expressly
conferred on it and provided for in the Constitution.
Relative to the appeal that petitioner filed with the COMELEC, the same would not bar the present
action as an exception to the rule because under the circumstances, appeal would not be a speedy and
adequate remedy in the ordinary course of law.[18] The exception is sparingly allowed in situations
where the abuse of discretion is not only grave and whimsical but also palpable and patent, and the
invalidity of the assailed act is shown on its face.
II. Certiorari lies. The trial court acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. Its decision is void.
The next question that arises is whether certiorari lies because the trial court committed a grave abuse
of discretion amounting to lack or excess of jurisdiction in deciding the way it did Election Protest Case
No. 14-V-98, declaring respondent Serapio as the duly “elected” mayor of Valenzuela, Metro Manila.
In this jurisdiction, an election means “the choice or selection of candidates to public office by popular
vote”[19] through the use of the ballot, and the elected officials of which are determined through the
will of the electorate.[20] “An election is the embodiment of the popular will, the expression of the
sovereign power of the people.”[21] “Specifically, the term ‘election’, in the context of the Constitution,
may refer to the conduct of the polls, including the listing of voters, the holding of the electoral
campaign, and the casting and counting of votes.”[22] The winner is the candidate who has obtained a
majority or plurality of valid votes cast in the election.[23] “Sound policy dictates that public elective
offices are filled by those who receive the highest number of votes cast in the election for that office.
For, in all republican forms of government the basic idea is that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in
the election.”[24] In case of protest, a revision or recount of the ballots cast for the candidates decides
the election protest case. The candidate receiving the highest number or plurality of votes shall be
proclaimed the winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the
candidate receiving the next highest number of votes or the second placer, can not be declared
elected.[25] “The wreath of victory cannot be transferred from the disqualified winner to the repudiated
loser because the law then as now only authorizes a declaration of election in favor of the person who
has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of
votes to be declared elected.”[26] In other words, “a defeated candidate cannot be deemed elected to
the office.”[27]
“Election contests involve public interest, and technicalities and procedural barriers should not be
allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in
the choice of their elective officials. Laws governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may not be defeated by mere technical
objections. In an election case, the court has an imperative duty to ascertain by all means within its
command who is the real candidate elected by the electorate. The Supreme Court frowns upon any
interpretation of the law or the rules that would hinder in any way not only the free and intelligent
casting of the votes in an election but also the correct ascertainment of the results.”[28]
In this case, based on the revision of ballots, the trial court found that:
First, by canvass of the Municipal Board of Canvassers the results were:
Carlos - 102,668 votes
Serapio - 77,270 votes, or a winning margin of 25,418 votes
Ramon Ignacio - 20 votes.
and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly elected mayor of
Valenzuela, Metro Manila.
Second, by physical count of the ballots, the results were:
Serapio - 76,246 votes, or a winning margin of 27,305 votes.
Third, by revision of the ballots, the trial court found in a final tally that the “valid” votes obtained by the
candidates were as follows:
Serapio - 66,602 votes, or a winning margin of 17,007 votes.
Consequently, the final tally clearly showed petitioner Carlos as the overwhelming winner in the May 11,
1998 elections.
However, the trial court set aside the final tally of votes because of what the trial court perceived to be
“significant badges of fraud” attributable to the protestee.[29] These are:
First: The failure of the keys turned over by the City Treasurer to the trial court to fit the padlocks on the
ballot boxes that compelled the court to forcibly open the padlocks. The trial court concluded that the
real keys were lost or the padlocks substituted pointing to possible tampering of the contents of the
ballot boxes.
Procedurally, the keys to the ballot boxes were turned over by the Board of Election Inspectors from the
precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer for
safekeeping. The three-level turn-over of the keys will not prevent the possibility of these keys being
mixed up. This is an ordinary occurrence during elections. The mere inability of the keys to fit into the
padlocks attached to the ballot boxes does not affect the integrity of the ballots. At any rate, the trial
court easily forced open the padlocks and found valid votes cast therein;
Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded that there were
“missing ballots” and “missing election returns.” This is pure speculation without factual basis. “The sea
of suspicion has no shore, and the court that embarks upon it is without rudder or compass.”[30] On the
other hand, the Summary of Votes as revised does not show any unaccounted precinct or whether there
was any precinct without any ballot or election returns. It is a standard procedure of the Commission on
Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of Election Inspectors
or the Board of Canvassers, in case of necessity.
The empty ballot boxes found could be the empty reserve ballot boxes that were not used by the Board
of Election Inspectors or the Board of Canvassers since there was neither proof nor even a claim of
missing ballots or missing election returns.
Third: Some schoolhouses experienced brownout during the counting of votes. There was nothing
extraordinary that would invite serious doubts or suspicion that fraud was committed during the
brownout that occurred. Indeed, one witness stated that it was the first time that he observed
brownout in Dalandanan Elementary School and another stated that the brownout was localized in
Coloong Elementary School. Since counting of votes lasted until midnight, the brownouts had caused
only slight delay in the canvassing of votes because the election officials availed themselves of candles,
flashlights and emergency lights. There were no reports of cheating or tampering of the election
returns. In fact, witnesses testified that the counting of votes proceeded smoothly and no commotion
or violence occurred. So, the brownouts had no effect on the integrity of the canvass.
Fourth: The absence of watchers for candidate Serapio from their posts during the counting of votes.
This cannot be taken against candidate Carlos since it is the candidate’s own look-out to protect his
interest during the counting of votes and canvassing of election returns. As long as notices were duly
served to the parties, the counting and canvassing of votes may validly proceed in the absence of
watchers. Otherwise, candidates may easily delay the counting of votes or canvassing of returns by
simply not sending their watchers. There was no incomplete canvass of returns, contrary to what the
trial court declared. The evidence showed complete canvass in Valenzuela, Metro Manila.[31]
“We cannot allow an election protest on such flimsy averments to prosper, otherwise, the whole
election process will deteriorate into an endless stream of crabs pulling at each other, racing to
disembank from the water.”[32]
Assuming for the nonce that the trial court was correct in holding that the final tally of valid votes as per
revision report may be set aside because of the “significant badges of fraud”, the same would be
tantamount to a ruling that there were no valid votes cast at all for the candidates, and, thus, no winner
could be declared in the election protest case. In short, there was failure of election.
In such case, the proper remedy is an action before the Commission on Elections en banc to declare a
failure of election or to annul the election.[33] However, the case below was an election protest case
involving an elective municipal position which, under Section 251 of the Election Code, falls within the
exclusive original jurisdiction of the appropriate regional trial court.[34]
Nonetheless, the annulment of an election on the ground of fraud, irregularities and violations of
election laws may be raised as an incident to an election contest. Such grounds for annulment of an
election may be invoked in an election protest case. However, an election must not be nullified and the
voters disenfranchised whenever it is possible to determine a winner on the basis of valid votes cast,
and discard the illegally cast ballots. In this case, the petitioner admittedly received 17,007 valid votes
more than the protestee, and therefore the nullification of the election would not lie. The power to
nullify an election must be exercised with the greatest care with a view not to disenfranchise the voters,
and only under circumstances that clearly call for such drastic remedial measure.[35]
As heretofore stated, in this jurisdiction, elections are won on the basis of a majority or plurality of votes
cast and received by the candidates. “The right to hold an elective office is rooted on electoral mandate,
not perceived entitlement to the office.”[36]
More importantly, the trial court has no jurisdiction to declare a failure of election.[37]
Section 6 of the Omnibus Election Code provides that:
“Sec. 6. Failure of Election.—If, on account of force majeure, violence, terrorism, fraud or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
preparation and the transmission of the election returns or in the custody of canvass thereof, such
interested party and after due notice and hearing, call for the holding or continuation of the election
not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
after the cessation of the cause of such postponement or suspension of the election or failure to elect.”
(Emphasis supplied)
Likewise, RA 7166 provides that:
“Sec. 4. Postponement, Failure of Election and Special Elections.-- The postponement, declaration of
failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus
Election Code shall be decided by the Commission sitting en banc by a majority vote of its members.
The causes for the declaration of a failure of election may occur before or after the casting of votes or
on the day of the election.” (Emphasis supplied)
It is the Commission (Comelec) sitting en banc that is vested with exclusive jurisdiction to declare a
failure of election.[38]
“In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two conditions must be
averred in order to support a sufficient cause of action. These are: (1) the illegality must affect more
than 50% of the votes cast and (2) the good votes can be distinguished from the bad ones. It is only
when these two conditions are established that the annulment of the election can be justified because
the remaining votes do not constitute a valid constituency.”[39]
We have held that: “To declare a failure of election, two (2) conditions must occur: first, no voting has
taken place in the precincts concerned on the date fixed by law or, even if there were voting, the
election nevertheless resulted in a failure to elect; and, second, the votes not cast would affect the
result of the election.”[40] Neither of these conditions was present in the case at bar.
More recently, we clarified that, “Under the pertinent codal provision of the Omnibus Election Code,
there are only three (3) instances where a failure of elections may be declared, namely: (a) the election
in any polling place has not been held on the date fixed on account of force majeure, violence,
terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended
before the hour fixed by law for the closing of the voting on account of force majeure, violence,
terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.”[41]
Thus, the trial court in its decision actually pronounced a failure of election by disregarding and setting
aside the results of the election. Nonetheless, as herein-above stated, the trial court erred to the extent
of ousting itself of jurisdiction because the grounds for failure of election were not significant and even
non-existent. More importantly, the commission of fraud can not be attributed to the protestee. There
was no evidence on record that protestee had a hand in any of the irregularities that protestant averred.
It is wrong for the trial court to state that the protestee had control over the “election paraphernalia” or
over electric services. The Commission on Elections has control over election paraphernalia, through its
officials and deputies.[42] The Comelec can deputize with the concurrence of the President, law
enforcement agencies and instrumentalities of the government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.[43] On the other hand, electric utility services in Metro Manila, including Valenzuela are
under the control of its franchise holder, particularly the Manila Electric Company, a public service
company, certainly not owned or controlled by the protestee. In fact, during election period, Comelec
has control over such utilities as electric and even telephone service.[44] What is important, however, is
that the voters of Valenzuela were able to cast their votes freely and fairly. And in the election protest
case, the trial court was able to recount and determine the valid votes cast.
Assuming that the trial court has jurisdiction to declare a failure of election, the extent of that power is
limited to the annulment of the election and the calling of special elections.[45] The result is a failure of
election for that particular office. In such case, the court can not declare a winner.[46] A permanent
vacancy is thus created. In such eventuality, the duly elected vice-mayor shall succeed as provided by
law.[47]
We find that the trial court committed a grave abuse of discretion amounting to lack or excess of
jurisdiction in rendering its decision proclaiming respondent Serapio the duly elected mayor of
Valenzuela, Metro Manila, on the basis of its perception of the voice of the people of Valenzuela, even
without a majority or plurality votes cast in his favor. In fact, without a single vote in his favor as the
trial court discarded all the votes. Thus, the decision is not supported by the highest number of valid
votes cast in his favor. This violated the right to due process of law of petitioner who was not heard on
the issue of failure of election, an issue that was not raised by the protestant. “A decision is void for lack
of due process if, as a result, a party is deprived of the opportunity of being heard.”[48] The trial court
can not decide the election protest case outside the issues raised. If it does, as in this case, the trial
court is ousted of its jurisdiction. Likewise, it is a basic principle that a decision with absolutely nothing
to support it is void.[49] “A void decision may be assailed or impugned at any time either directly or
collaterally, by means of a petition filed in the same case or by means of a separate action, or by
resisting such decision in any action or proceeding where it is invoked.”[50] Here, the trial court
indulged in speculations on its view of the voice of the people, and decided the case disregarding the
evidence, but on its own intuition, ipse dixit.[51] How was this voice communicated to the trial court?
Certainly not by competent evidence adduced before the court as it should be, but by extra-sensory
perception. This is invalid in law. Contrary to its own finding that petitioner obtained 83,600 valid votes
against 66,602 valid votes for the respondent as second placer, or a plurality of 17,007 votes, the trial
court declared the second placer as the winner. This is a blatant abuse of judicial discretion by any
account. It is a raw exercise of judicial function in an arbitrary or despotic manner, amounting to
evasion of the positive duty to act in accord with law.[52]
In a special civil action for certiorari, the burden is on petitioner to prove not merely reversible error,
but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public
respondent Judge. “By grave abuse of discretion is meant capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.”[53] We must
emphasize that election to office is determined by the highest number of votes obtained by a candidate
in the election.
The Judgment
WHEREFORE, the Court GRANTS the petition. The Court ANNULS and DECLARES VOID the decision
dated April 24, 2000 of the trial court in Election Protest Case No. V-14-98.
The temporary restraining order we issued on May 8, 2000, is made permanent.
Let Election Protest Case No. V-14-98 be remanded to the trial court for decision within a non-
extendible period of fifteen (15) days from notice of this decision. The judge shall report to this Court on
the decision rendered within five (5) days from rendition submitting a copy thereof to the Office of the
Clerk of Court en banc.
This decision is immediately executory.
No costs.
[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
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 Petition[4] 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 8436[6] 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, 1998[7] -- 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.
xxx xxx xxx

“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 letter[14] 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 Comelec 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 claimed[25] 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, 2003[28] 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, 2003[31]
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 or existence 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 referred[40] 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 Memorandum[44] 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. Guingona[46] 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 MATRIX[47]
[Technical Evaluation of Automated Counting Machine]
KEY REQUIREMENTS
[QUESTIONS]
MEGA-PACIFIC CONSORTIUM
TOTAL INFORMATION 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?
8. Data stored in external media is encrypted?
√
√
9. Physical key or similar device allows, limits, or restricts operation of the machine?
10. CPU speed is at least 400mHz?
√
√
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
√
√

15. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the
encrypted soft copy of the data generated by the counting machine and stored on the removable data
storage device?
16. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the
encrypted soft copy of the data generated by the counting machine and transmitted through an
electronic transmission media?
√
17. Does the system output a Zero City/Municipal Canvass Report, which is printed on election day prior
to the conduct of the actual canvass operation, that shows that all totals for all the votes for all the
candidates and other information, are indeed zero or null?
18. Does the system consolidate results from all precincts in the city/municipality using the data storage
device coming from the counting machine?
√
19. Is the machine 100% accurate?
20. Is the Program able to detect previously downloaded precinct results and prevent these from being
inputted again into the System?
√
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 device?
23. Does the system consolidate results from all precincts in the provincial/district/ national using the
data storage device from different levels of consolidation?
√
24. Is the system 100% accurate?
√
√
25. Is the Program able to detect previously downloaded precinct results and prevent these from being
inputted again into the System?

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
√
√
√
27. Can the results of the provincial/district/national consolidation be stored in a data storage device?
√
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 of 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 code[49] 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-DOST[51] 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.[53] The 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 CAES 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.

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Brillantes et. al. v. COMELECFacts:Republic Act No.

8436 mandates the use by the COMELEC of

SULTAN MOHAMAD L. MITMUG, petitioner,

COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL

Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.

Brillantes, Nachura, Navarro & Arcilla for private respondent.

Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the

On November 20, 2001, we issued a temporary restraining order, to wit:

We deny the petition.

Elucidating on the concept of failure of election, we held that:

CENTER FOR PEOPLE G.R. No. 189546

September 21, 2010

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

(On Official Leave) (On Official Leave)

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

(On Official Leave) (On Official Leave)

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner,

vs.COMMISSION ON ELECTIONS, respondent.

Whether or not Comelec's promulgation of Resolution 6712 was justified.

Resolution 6712 was null and void.

1. Both parties admit their capacity to sue and be sued;

The Revision Results

The revision of the ballots showed the following results:

(1) Per physical count of the ballots:

(a) protestant Serapio - 76,246 votes.

(b) protestee Carlos - 103,551 votes.

The final tally showed:

(a) protestant Serapio - 66,602 votes.

The Trial Court’s Ruling

The Petition at bar

On May 8, 2000, petitioner filed the present recourse.[10]

Petitioner raised the following legal basis:

The issues raised are the following:

The Court’s Ruling

We find the petition impressed with merit.[14]

Article VIII, Section 5 (1) of the 1987 Constitution provides that:

“Sec. 5. The Supreme Court shall have the following powers:

First, by canvass of the Municipal Board of Canvassers the results were:

Carlos - 102,668 votes

Serapio - 77,270 votes, or a winning margin of 25,418 votes

Ramon Ignacio - 20 votes.

Second, by physical count of the ballots, the results were:

Carlos - 103,551 votes

Serapio - 76,246 votes, or a winning margin of 27,305 votes.

Carlos - 83,609 votes

Serapio - 66,602 votes, or a winning margin of 17,007 votes.

Section 6 of the Omnibus Election Code provides that:

Likewise, RA 7166 provides that:

The temporary restraining order we issued on May 8, 2000, is made permanent.

This decision is immediately executory.

[G.R. No. 159139. January 13, 2004]

Only bids from the following entities shall be entertained:

a. Duly licensed Filipino citizens/proprietorships;

e. Cooperatives duly registered with the Cooperatives Development Authority.

2.) Track Record:

RESOLVED moreover, that:

B. Pre-Bid conference shall be on February 18, 2003; and